The question at issue on this appeal is whether, under the Water Industry Act 1991, a sewerage undertaker has a statutory right to discharge surface water and treated effluent into private watercourses such as the Respondents canals without the consent of their owners and, if so, whether the right extends to any sewer or only to those which were in existence in 1991 when new sewerage legislation was passed. This depends on the construction of the Water Industry Act 1991, a consolidating Act which was passed in order to tidy up the statute law relating to water and sewerage services. It consolidates with amendments the provisions of the Act of The Water Industry 1989, together with a number of other statutes concerned with water management. At the same time, the Water Consolidation (Consequential Provisions) Act 1991 repealed a number of earlier statutory provisions, including some thought to be spent and unnecessary. It is on these changes that the issues on this appeal turn. The Supreme Court unanimously allows the appeal to the extent of declaring, in accordance with the second possibility, that subject to section 117(5) of the Water Industry Act 1991, the Appellants are entitled to discharge into the Respondents canals from any sewer outfall which was in use on or before 1 December 1991. The leading judgment is given by Lord Sumption. Discharge into a private watercourse is an entry on the owners land, and as such is an unlawful trespass unless it is authorised by statute. It is common ground that no express statutory right is conferred by the Water Industry Act. The question is therefore whether it should be implied. A statutory right to commit what would otherwise be a tort may of course be implied. But since this necessarily involves an interference with the rights of others, the test has always been restrictive. The implication must be more than convenient or reasonable. It must be necessary. As a general rule, this will involve showing either that the existence of the power is necessarily implicit in the express terms of the statute, or else that the statutory purpose cannot be effectually achieved without the implication. In particular a right to commit what would otherwise be a tort may be implied if a statutory power is incapable of being exercised or a statutory duty is incapable of being performed without doing the act in question [2]. There are two bases on which a right of discharge into private watercourses might be implied into the current statutory regime. The first is that a right corresponding to the one recognised by the Court of Appeal in Durrant v Branksome Urban District Council [1897] 2 Ch 291 under earlier legislation is implied into the corresponding provision of the Water Industry Act 1991. In particular section 159 (which confers a power to lay pipes). The effect of such an implication would be to authorise discharge from future sewage outfalls as well as from those already in use when the Water Industry Act 1991 came into force. The second possibility is that the only right of discharge into private watercourses which survives under the Act of 1991 is a right of discharge from existing outfalls which were already in use on 1 December 1991 when the Act came into force [12]. The first basis must be rejected because the language and scheme of the current legislation differs significantly from that of the legislation in force at the time of Durrants Case. However, a right of discharge, limited to outfalls from sewers in existence when the Act of 1991 came into force, exists on the second basis. When the Water Industry Act 1991 (i) imposed on the privatised sewerage undertakers duties which it could perform only by continuing for a substantial period to discharge from existing outfalls into private watercourses and (ii) at the same time applied to them the statutory restrictions in section 116 on discontinuing the use of existing sewers, it implicitly authorised the continued use of existing sewers. A restriction on discontinuing the use of an existing sewer until an alternative has been constructed is not consistent with an obligation to discontinue its use forthwith under the law of tort. The inescapable inference is that although there is no provision of the Act of 1991 from which a general right of discharge into private watercourses can be implied, those rights of discharge which had already accrued in relation to existing outfalls under previous statutory regimes survived [19]. Lord Sumption rejects the suggestion that this conclusion leaves the owners of private watercourses in a worse position than under the Water Act 1989, because of the more limited provisions for compensation for damage and the more limited protections available against abuse. It does not, he considers, give rise to difficulty if a more limited right to continue discharging from existing outfalls into private watercourses is to be implied from the restrictions in section 116 on discontinuing the use of existing sewers [22]. In a concurring judgment, Lord Toulson concludes that the answers to the questions in this case are to be found within the sections of the 1991 Act. There is, in Lord Toulsons opinion, no need to go back to examine the position under the 1989 Act. There is no claim for damages for trespass during the period when the 1989 Act was in force. However, if it were necessary to do so, he would conclude that there was no trespass during that period [36]. In a further concurring judgment, Lord Neuberger identifies two questions in the appeal. The first question is whether sewerage undertakers have such a right in relation to all their sewers, irrespective of when they came into use i.e. present and future sewers. The second question, which only arises if the answer to the first question is no, is whether sewerage undertakers have such a right in relation to any of their sewers, and, if so, whether it is those which were in use immediately before (i) the transfers effected pursuant to the Water Act 1989 or (ii) the coming into force of the Water Industry Act 1991 [38]. In Lord Neubergers view the composite answer to these questions is that sewerage undertakers have the statutory right to discharge surface water and treated effluent into streams and canals (subject to payment of compensation for any damage thereby caused), but only in respect of outfalls in existence before the coming into force of the 1991 Act. He agrees with the reasons given by Lord Sumption and Lord Toulson although would place greater weight on the provisions of the earlier legislation relating to public sewers and the Interpretation Act 1978 [39].
Lord Walker made clear that the scope of the appeal was limited the court did not have the task of deciding whether or not the system of charging current account customers was fair, but whether the OFT could challenge the charges as being excessive in relation to the services supplied in exchange (Paragraph 3). As Lord Phillips stated, even if such a challenge was not possible, it might still be open for the OFT to assess the fairness of the charges according to other criteria (Para 61). The key issue was whether the charges constituted the price and remuneration as against the goods or services supplied in exchange within the meaning of the Regulations. The Supreme Court considered and decided a number of arguments as to whether the charges could be said to be price or remuneration under Regulation 6 (2) (b): (1) The charges were not paid in exchange for the transactions to which they related eg. honouring a cheque when the customer had insufficient funds to do so (Para 75). (2) The Court of Appeal was wrong to find that Regulation 6 (2) (b) did not apply to charges that were ancillary to the core contract between the bank and customer (Paras 38 41, 47, 78, 112). Lord Walker commented that Regulation 6 (2) (b) contained no indication that only the essential price or remuneration was relevant. In fact, any monetary price or remuneration payable under the contract would naturally fall within the language of Regulation 6 (2) (b) (Para 41). (3) The charges were not concealed default charges designed to discourage customers from becoming overdrawn on their accounts without prior arrangement (Paras 88, 114). The High Court had rejected this argument and was right to do so. (4) The charges were properly to be regarded as falling within the scope of the Regulations (Paras 43, 80, 104). They were in fact part of the price or remuneration paid by the customer in exchange for the package of services which made up a current account (Paras 47, 89). The fact that liability to pay the charges depended on specific events occurring was irrelevant to that conclusion (Paras 47, 104). Accordingly, since any assessment of the fairness of the charges, which related to their appropriateness as against the services supplied in exchange, fell within Regulation 6 (2) (b), no such assessment could take place and so the appeal would be allowed (Paras 51, 90, 92, 118, 119). Further Comments Lord Phillips also noted that in the absence of the charges the banks would not be able profitably to provide current account services without a fee (Para 88). He stated that it might be open to question whether it is fair to subsidise some customers whose accounts always remain in credit by levies on others who experienced events they did not foresee when they opened their accounts (Para 80). Lord Walker commented that ministers and Parliament had decided to transpose the directive as it stood rather than to confer the higher degree of consumer protection afforded by the national laws of some other member states. Parliament might wish to consider whether to revisit that decision (Para 52). Lord Mance endorsed this comment (Para 118). Lady Hale commented that if Lord Walkers invitation to ministers and Parliament was to be taken up, it might not be easy to find a satisfactory solution. She questioned whether the real problem was not the charging model, but the lack of competition between the banks as to the product they offered (Para 93). No The court decided that although the interpretation of the European directive which the Regulations implemented was a question of European law it was not necessary to refer the matter to the European Court of Justice (Paras 49, 91, 115, 120).
MWB Business Exchanges Centres Ltd (MWB) operates offices in London. Rock Advertising (Rock) entered into a licence agreement with MWB to occupy office space for a fixed term of 12 months. Clause 7.6 of the agreement provided: This Licence sets out all the terms as agreed between MWB and [Rock]. No other representations or terms shall apply or form part of this Licence. All variations to this Licence must be agreed, set out in writing and signed on behalf of both parties before they take effect. Rock accumulated licence fee arrears. Rocks director, Mr Idehen, proposed a revised schedule of payments to Ms Evans, a credit controller employed by MWB. Under his proposal, certain payments would be deferred and the accumulated arrears would be spread over the remainder of the licence term. This revised schedule was worth slightly less to MWB than the original terms, because of the interest cost of deferral. A dispute arose as to whether Ms Evans had accepted Mr Idehens proposal orally. MWB subsequently locked Rock out of the premises, terminated the licence and sued for the arrears. Rock counterclaimed, seeking damages for wrongful exclusion from the premises. In the County Court the judge found that the parties had agreed orally to Mr Idehens revised schedule; but the judge held that MWB could claim the arrears without regard to that oral variation, because the oral variation did not satisfy the formal requirements of Clause 7.6. Rock appealed successfully to the Court of Appeal, which held that the oral variation had also amounted to an agreement to dispense with Clause 7.6. It followed that MWB was bound by the oral variation. MWB appealed to the Supreme Court. The issues were: (i) whether a contractual term precluding amendment of an agreement other than in writing (a No Oral Modification or NOM clause) is legally effective; (ii) whether the variation of an agreement to pay money, by substituting an obligation to pay either less money or the same money later, is supported by the necessary consideration. The Supreme Court unanimously allows the appeal. Lord Sumption gives the lead judgment, with which Lady Hale, Lord Wilson and Lord Lloyd Jones agree. Lord Briggs gives a concurring judgment. NOM clauses are common, for at least three reasons: (i) they prevent attempts, including abusive attempts, to undermine written agreements by informal means; (ii) they avoid disputes not just about whether a variation was intended but also about its exact terms; (iii) they make it easier for corporations to police their own internal rules restricting the authority to agree variations. The law of contract does not normally obstruct the legitimate intentions of businessmen, except for overriding reasons of public policy. NOM clauses do not frustrate or contravene any policy of the law [12]. The argument for disregarding NOM clauses is that parties cannot agree not to vary a contract orally, because such an agreement would be destroyed automatically upon oral variation. However, there are legal systems, including widely used international codes, which impose no formal requirements for the validity of contracts and which yet give effect to NOM clauses. That suggests that there is no conceptual inconsistency between a general rule permitting informally created contracts and a specific rule requiring variation to be agreed in writing. The same point may be made by reference to the treatment of entire agreement clauses, which nullify prior collateral agreements relating to the same subject matter. Where such a clause is relied on to modify what would otherwise be the effect of the agreement which contains it, the courts will routinely apply the clause according to its terms and will decline to give effect to the collateral agreement [13 14]. Parties who agree an oral variation in spite of a NOM clause do not necessarily intend to dispense with that clause. What the parties agreed was that oral variations will be invalid, not that they are forbidden. The natural inference from a failure to observe a NOM clause is not that the parties intended to dispense with it, but that they overlooked it. On the other hand, if they had it in mind, then they were courting invalidity with their eyes open [15]. The approach of the Court of Appeal overrides the parties intentions to bind themselves as to the manner in which future changes in their legal relations are to be achieved. In many cases, statute prescribes a particular form of agreement. There is no principled reason why contracting parties should not adopt the same prescriptions by agreement [9 11]. The enforcement of NOM clauses involves the risk that a party may act on the varied contract but then find itself unable to enforce it. The safeguard against injustice lies in the various doctrines of estoppel. Reliance on an estoppel would require, at the very least: (i) some words or conduct unequivocally representing that the variation was valid notwithstanding its informality and (ii) for this purpose, something more than the informal promise itself [16]. The oral variation in the present case was invalid for want of the writing and signatures required by Clause 7.6. That makes it unnecessary to deal with the issue of consideration. That area of law is probably ripe for re examination. The order of the County Court is restored [17 18]. Lord Briggs agrees that the appeal should be allowed, but his reasons differ to those of Lord Sumption. To give effect to a NOM is not to override the parties intentions; the NOM clause will remain in force until both or all parties agree to do away with it. It is conceptually impossible for the contracting parties to impose upon themselves a particular scheme, but not to be free by further agreement to vary or abandon it by any method permitted by the general law. Although various international law codes give effect to NOMs, these either (i) form part of a national law, in which case they bind parties as would an English statute, or (ii) have been chosen by the parties, in which case the parties may agree to depart from those principles. Entire agreement clauses are not a useful analogy: they do not purport to bind the parties future conduct, so do not involve the same conceptual difficulties as NOM clauses. There is a powerful analogy with negotiations subject to contract, where the parties may abandon the requirement of a formal written agreement only expressly or by necessary implication. In Lord Briggs view, a NOM clause binds the parties until they expressly (or by necessary implication) agree to do away with it. This accords with the analysis adopted in most other common law jurisdictions [25 32]. In this case, the oral variation said nothing about the NOM clause, which has not been done away with by necessary implication [24].
On 24 October 2007 Mr Perry, was convicted in Israel of a number of fraud offences in relation to a pension scheme that he had operated in Israel. He was given a substantial prison sentence and paid a fine of approximately 3m. The Serious Organised Crime Agency (SOCA) is now seeking to deprive Mr Perry, together with members of his family and entities associated with them, of assets obtained in connection with his criminal conduct, wherever in the world those assets may be situated. None of these persons resides in the United Kingdom. As a preliminary step, aimed at ensuring that its action to recover assets is effective, SOCA obtained a worldwide property freezing order (PFO) against Mr Perry, his wife and Leadenhall Property Limited (the PFO appellants). Before that, it had obtained a disclosure order (DO) under which notices requesting information were given to Mr Perry and his daughters (the DO appellants) by letter addressed to Mr Perrys house in London. The PFO appellants challenged the PFO on the basis that a civil recovery order could only be made in respect of property that was within the territorial jurisdiction of the court making it. The DO appellants contended that notices under the DO could not be addressed to persons who were not within the UK. In the PFO matter, the High Court ruled that the provisions of the Proceeds of Crime Act 2002 (POCA) relied on by SOCA did apply, save as to orders made in Scotland, to property outside the jurisdiction and upheld the scope of the PFO. An appeal from this decision was dismissed by the Court of Appeal on 18 May 2011. Earlier, the Court of Appeal had also upheld the validity of the notices requesting information given to the DO appellants under the DO. Appeals against the PFO and the DO notices were brought to the Supreme Court and were heard together. The Supreme Court allows both appeals: the PFO appeal by a majority (Lord Judge and Lord Clarke dissenting) and the DO appeal unanimously. Lord Phillips (with whom Lady Hale, Lord Brown, Lord Kerr and Lord Wilson agree) gives the main judgment. Lord Reed and Sir Anthony Hughes give shorter concurring judgments. Lord Judge and Lord Clarke give a joint dissenting judgment on the PFO appeal. SOCAs application was pursuant to the powers in Part 5 of POCA for the court to make a civil recovery order in respect of property which is, or represents, property obtained through criminal conduct. The applicable definition of the term property is in section 316(4) which provides that property is all property wherever situated. However, many of the provisions referring to property in POCA plainly apply only to property within the UK and the scope of the term depends on its context. Thus the definition should not have been given the weight it had carried in the courts below [14]. Although there was a presumption under principles of international law that a statute does not have extraterritorial effect, states have departed from this by agreement in the case of confiscating the proceeds of crime. POCA must be read in the light of the Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, which recognises that the courts of state A may seek to seize property in state B which is the proceeds of the criminal conduct of a defendant subject to the criminal jurisdiction of state A [18 29]. Parts 2, 3 and 4 of POCA provide for (a) the imposition of personal obligations in respect of property worldwide; (b) proprietary measures to secure and realise property within the UK and (c) requests to be made to other states to take such measures in respect of property within their territories. This represents a coherent international scheme which accords with the Strasbourg Convention and with principles of international law [31 38]. The purpose of Part 5 of POCA is to enable recovery in civil proceedings in each part of the UK of property which is or represents property obtained through unlawful conduct. The focus is on the property rather than a particular defendant. In their natural meaning, and in the absence of provisions corresponding to those for enforcement abroad in Parts 2, 3 and 4, the provisions of Part 5 apply only to property within the UK [53 56, 136]. The only anomaly with this analysis was the presence of section 286(2) POCA which purported to create a different position in Scotland from that in the rest of the UK. There was no satisfactory explanation for this and it remained an enigma [75 77] (Lord Reed thought it may have reflected a misunderstanding [152]), but it did not alter the overall conclusion that the High Court of England and Wales had no jurisdiction under Part 5 to make a recovery order in relation to property outside England and Wales. Thus the property covered by the PFO must be limited to such property, and the appellants could not be required under it to disclose all their worldwide assets [78 82]. The notices under the DO were given to persons who were, and were known by SOCA to be, outside the jurisdiction of the UK. Compliance with such orders was subject to penal sanction. It was generally contrary to international law for country A to purport to make criminal conduct in country B committed by persons who are not citizens of country A. It was therefore implicit that the power to impose positive obligations to provide information could only be exercised in respect of persons who were within the UK and the DO did not authorise the sending of notices to persons outside the UK [94, 98]. Lord Judge and Lord Clarke, dissenting on the PFO appeal, agreed that POCA was poorly drafted but held that the objective was clearly to deprive criminals of the proceeds of their crimes, whether here or abroad [160]. The expression all property wherever situated should have the same meaning in all sections in which it appeared [164]. Control mechanisms had been created in Part 5 to ensure that orders made could avoid any improper extra territorial effect or infringement of the principle of sovereignty. Recovery orders took personal effect and, in respect of foreign property, were subject to the local law [167].
This appeal is concerned with the process by which planning authorities review what are commonly referred to as old planning permissions for mineral working, under the Environment Act 1995 and the Town and Country Planning (Scotland) Act 1997. The review is necessary because the conditions attached to old permissions often fail to meet modern environmental needs. The legislation distinguishes between three categories of mineral sites, Phase I active, Phase II active and dormant, and lays down how the process of review is to affect each category. Dormant sites are those on which no substantial minerals development was carried out in the period from 22 February 1982 and 6 June 1995. On classification as dormant, all further mineral working is frozen until new conditions have been applied for and approved. The procedure for classification of sites is in two stages. Stage 1 involves the preparation of two lists. The first list enables Phase I active sites to be given priority. The second list relates to Phase II active sites. Stage 2 enables a person who owns the land or has an interest in minerals to apply to the planning authority to determine the conditions to which the relevant planning permission is to be subject with a right of appeal to Scottish Ministers, and provisions for compensation for some active sites. The mineral site in question is in a sparsely populated area on the edge of Strathspey. The Appellant company (Tullochgribban Mains) is the heritable proprietor of tenanted farmland in the vicinity. The First Respondent, the Highland Council (the Council) is the planning authority for the area and the Second Respondent, Breedon Aggregates Scotland Ltd (Breedon) is the proprietor of the minerals on the site and has the right to work them. Tullochgribban Mains and Breedon derive title from Lord Reidhaven, who by a disposition registered on 6 July 1967 disponed to Breedons predecessor in title all the deposits of sand and gravel and associated substances (except coal) in, on or under the land delineated in red on an annexed plan (the red land) The property included a number of rights and privileges including full right and powerto search for workand carry away the minerals. The original planning permission was granted on 12 February 1965 and was expressed in general terms as permission for the working of minerals on land at Tullochgorum, Carrbridge, in accordance with the plan(s) submitted and docquetted. It set out 11 conditions stated to be in the interests of health, safety and amenity. The original plan has been lost. The site was worked for some years, but no work has taken place for a least 20 years. The worked area (the green land) was quite small, about one sixth or seventh of the red land. In March 1997, the Council issued its first list of mineral sites. The Tullochgribban site was not included and in May 1997 an application was made for it to be included as a Phase I active site. Council decided to register it as dormant as there was inadequate evidence of working since 1982. This was communicated by the Council by letter dated 15 July 1997 which included with it a plan which identified the green land, a roughly kidney shaped area forming an island within the southern part of the red land. In 2007, by which time Breedon had acquired the mineral rights, Breedon made its application for approval of a schedule of conditions. After the application was advertised in May 2007, Tullochgribban Mains contended that it would be outside the power of the Council to approve conditions in relation to the red land, contending that when the Council revised the first list so as to include Tullochgribban Quarry, it definitively determined its extent as being limited to the green land. By an interlocutor of 10 March 2009 the Lord Ordinary (Lady Clark of Calton) dismissed Tullochgribban Mains petition. On 7 January 2011, the Inner House of the Court of Session (Lord Justice Clerk, Lord Carloway and Lady Smith) refused Tullochgribban Mains appeal against that decision. Tullochgribban Mains seeks to appeal that decision to the Supreme Court. The Supreme Court unanimously dismisses Tullochgribban Mains appeal. The Stage 1 procedure is administrative and preliminary in nature. In any event, the correspondence as a whole gives no indication that the Council was purporting to exercise a power to cut down an existing planning permission. The Court notes that, as a Scottish civil case, permission was not required to bring an appeal to the Supreme Court. Had it been required, permission would not have been given by this Court. It does not raise any point of law of general importance and the judgments below set out the position clearly and correctly. Lord Walker gives the leading judgment with which Lords Hope, Kerr, Clarke and Dyson agree. The stage 1 procedure is administrative and preliminary in nature. It involves the identification of sites and the setting of an order of priority for Stage 2. By contrast Stage 2 requires planning judgment. It is possible to imagine circumstances, such as overlapping applications, in which a planning authority might at Stage 1 find it necessary to form a provisional view as to the boundaries of a site. But such cases would be unusual and a provisional determination at Stage 1 could not have the effect of cutting down a valid existing planning permission. The correspondence as a whole, considered objectively, gives no indication that the Council was purporting to exercise a power to cut down an existing planning permission.
A number of travellers established an unauthorised camp in Hethfelton, one of the woods managed by the Forestry Commission and owned by the Secretary of State for Environment, Food and Rural Affairs. The Secretary of State sought an order for possession in respect of Hethfelton and other specified woods (also managed by the Commission and owned by the Secretary of State) which had not yet been occupied by the defendants to the claim. The Secretary of State also sought an injunction against the same defendants restraining them from re entering Hethfelton and from entering the other woods. The Recorder before whom the claim came decided to grant an order for possession against the defendants in respect of Hethfelton, but not in respect of the other woods. The Recorder also refused to grant the injunction sought. The Court of Appeal allowed the Secretary of States appeal against the Recorders refusal to grant the order for possession in relation to the other woods and against his refusal to grant the injunction. The defendants appealed. The Supreme Court unanimously allowed the defendants appeal to the extent of setting aside the wider possession order made by the Court of Appeal. Two main questions were before the Supreme Court: (1) Whether a court could grant an order for possession in respect of distinct land not yet occupied or possessed by a defendant. (2) Whether a court should grant an injunction restraining a defendant from trespassing on other land not currently occupied by him. On the first main question, the Supreme Court unanimously agreed that a court could not make such an order. Lord Rodger considered that such an order would be inconsistent with the fundamental nature of an action for recovering land because there was nothing to recover (Para 12). Lord Neuberger, who agreed with Lord Rodger on this question, thought that it did not make sense to talk about a defendant being required to deliver up possession of land where the defendant did not occupy such land in any conceivable way, and the claimant enjoyed uninterrupted possession of it (Paras 64, 74 and 78). Lords Rodger, Walker, Neuberger and Collins all thought that the Court of Appeal in Secretary of State for the Environment, Food and Rural Affairs v Drury [2004] 1 W.L.R. 1906 had illegitimately extended the circumstances in which an order for possession could be made (Paras 5, 20, 72 and 96). Lady Hales main objection to extending an order for possession in respect of distinct land which had not actually been intruded upon was one of natural justice. According to Lady Hale, the main problem with the current form of the usual order was that it was not specifically tailored against known individuals who had already intruded upon the claimants land, were threatening to do so again, and had been given a proper opportunity to contest the order (Paras 38 and 40). On the second main question, Lord Rodger, Lady Hale and Lord Neuberger agreed that the majority in the Court of Appeal were right to grant an injunction in this case. Lord Neuberger, with whom Lord Rodger agreed on this question, noted that neither the Recorder nor the Court of Appeal had concluded that an injunction should be refused on the ground that it would not be enforced by imprisonment (because the defendants were vulnerable or had young children) or because it would have no real value (since travellers usually have few assets). The Court of Appeal had not erred in granting the injunction (Para 84). Lord Neuberger was also of the view that the failure by the Commission to comply with the Guidance on Managing Unauthorised Camping issued by the Office of the Deputy Prime Minister should not preclude the granting of an injunction to restrain travellers from trespassing on other land (Paras 87 and 91). Lady Hale thought that the more natural remedy to deal with separate land which had not yet been intruded upon was an injunction against that intrusion, and one should not be unduly hesitant in granting that (Para 39). Further comments Observations were made to the effect that there may be a need for reform of the remedies available in this area (Paras 18, 40 and 94).
A is a former member of the Security Service, B its Director of Establishments. A wants to publish a book about his work in the Security Service. A duty of confidentiality binds A and he cannot publish material relating to the Security Service without Bs consent. B refused As application for consent to publish. As a result, A began proceedings in the High Court to challenge Bs decision. He claimed, amongst other things, that his right to freedom of expression under article 10 of the European Convention on Human Rights had been breached. B argued that section 65(2)(a) of the Regulation of Investigatory Powers Act 2000 (RIPA) provided that the Investigatory Powers Tribunal (the IPT) was the only appropriate tribunal in relation to proceedings under section 7(1)(a) of the Human Rights Act 1998 brought against the intelligence services, such that the High Court did not have jurisdiction to entertain As article 10 claim. The High Court held that it had jurisdiction to hear As challenge. The Court of Appeal, by a majority, reversed the High Courts decision, holding that exclusive jurisdiction did lie with the IPT. A appealed to the Supreme Court. Justice (an all party law reform and human rights organisation) intervened in the appeal in support of As submissions. The Supreme Court unanimously dismissed As appeal. Lord Brown, with whom all the members of the Court agreed, gave the leading judgment. Lord Hope gave a concurring opinion. Two alternative arguments were advanced by A: Section 65(2)(a) excludes the section 7(1)(a) jurisdiction of any other tribunal but not that of the courts. Even if section 65(2)(a) is to be construed as conferring exclusive section 7(1)(a) jurisdiction on the IPT, it does so only in respect of proceedings against the intelligence services arising out of the exercise of one of the investigatory powers regulated by RIPA. As to the first argument, Lord Brown noted that the language of section 7(2) of the 1998 Act and the use of the word only before appropriate tribunal in section 65(2)(a) indicated that it was unlikely that Parliament was intending to leave it to a complainant to choose for himself whether to bring proceedings in court or before the IPT (Para 13). Whilst the IPT rules made under RIPA were restrictive (e.g. in relation to the limited disclosure of information to a complainant), there were various provisions in RIPA and the IPT rules which were designed to ensure that, even in the most sensitive cases, disputes could be properly determined. None of these provisions would be available in the courts (Para 14). A further telling consideration against As construction was that there were in fact no other tribunals with section 7(1)(a) jurisdiction over the categories of claim listed in section 65(3) of RIPA (Para 15). As to the second argument, Lord Brown considered that As submission would involve reading into section 65(3)(a) (which contains the phrase proceedings against any of the intelligence services) words which were simply not there. There were, in addition, other provisions in RIPA which were more obviously directed to complaints of abuse of the intelligence services regulatory power which made it impossible to adopt As construction (Para 18). It also did not seem right to regard proceedings of the kind intended here as immune from the same requirement for non disclosure of information as other proceedings against the intelligence services (Para 19). Lord Brown then went on to consider whether there were sufficiently strong arguments available to A which would require the Court to construe section 65 in a way which was contrary to Lord Browns initial conclusions as to its construction. For the reasons set out below, Lord Brown concluded that there were no such arguments available to A. Lord Brown rejected As argument to the effect that to construe section 65 as conferring exclusive jurisdiction on the IPT would constitute an ouster of the jurisdiction of the courts that would be constitutionally objectionable (Para 21). RIPA, the 1998 Act and the Civil Procedure Rules all came into force at the same time as part of a single legislative scheme and it could not be said that section 65(2)(a) was ousting some pre existing right (Paras 21 22). Parliament had not ousted judicial scrutiny of the acts of the intelligence services, but had simply allocated that scrutiny (as to section 7(1)(a) proceedings) to the IPT (Para 23 24). Lord Brown also rejected the argument that forcing As article 10 challenge into the IPT would result in breaches of article 6 of the Convention. Claims against intelligence services inevitably raise special problems that cannot be dealt with in the same way as other claims and this was recognised both domestically and by the European Court of Human Rights (Para 26). The Court would be going further than the Strasbourg jurisprudence if it were to hold that the IPT procedures are necessarily incompatible with article 6(1) and it would decline to do so here (Para 30). Even if the IPTs rules are in any way incompatible with article 6, the remedy would be to modify them, instead of adopting some artificially limited construction of the IPTs jurisdiction (Para 31). The anomalies which A alleged would arise if the Court of Appeals construction were to be adopted also did not cast doubt on the correctness of the Court of Appeals decision (Paras 32 37).
The issue in this appeal is whether the Court of Appeal was right to order a retrial in respect of the appellant. The circumstances in which a court may order a retrial are set out in section 7(1) of the Criminal Appeal Act 1968, as amended by the Criminal Justice Act 1988, which provides: Where the Court of Appeal allows an appeal against conviction and it appears to the Court that the interests of justice so require, they may order the appellant to be retried. The appellant and his brother were convicted of murder and two robberies at Leeds Crown Court on 27 February 1998. The appellant was sentenced to life imprisonment for murder to be served with concurrent twelve year terms for the robberies. The main prosecution witness was Karl Chapman, a professional criminal and a supergrass. On 11 June and 13 October 1996 robberies took place at the home of two elderly brothers. On both occasions the robbers used violence and took money. On the second occasion, the elder brother sustained injuries to the head which later resulted in his death. In the ensuing police investigation Chapman provided the police with information and witness statements implicating the appellant and his brother. They were charged with robbery and murder. Chapmans evidence was central to the prosecutions case at trial. He vigorously denied that he was expecting or receiving any benefits from the police for his evidence. Following the convictions there were allegations in the local press that the police were planning to pay Chapman a large sum of money upon his release from prison. Subsequently, the Criminal Cases Review Commission (CCRC) decided to investigate. North Yorkshire Police carried out detailed investigations into the activities of the police which formed the basis of the CCRC report in November 2008. The findings of the report showed that the police had conspired to pervert the course of justice in concealing and lying about a variety of rewards and benefits received by Chapman. It was revealed, for example, that the police had paid him sums of money, taken him to brothels, allowed him to consume drugs in their company and not investigated allegations that he had committed violent attacks. On 25 November 2008 the CCRC made a reference to the Criminal Division of the Court of Appeal on the ground that the convictions had been procured by gross prosecutorial misconduct on the part of the police. The appellant and his brother remained in prison during this period. Between October 1998 and September 2004, whilst in prison, the appellant had made a series of admissions of guilt freely and voluntarily to various persons. On 1 December 2009, the Court of Appeal quashed the convictions of the appellant and his brother. The findings of the CCRC relating to the gross police misconduct were not challenged. The court held that had the findings been revealed during the trial, the trial judge might have stayed the prosecution as an abuse of process or applied section 78 of the Police and Criminal Evidence Act 1984 to exclude Chapmans evidence altogether, in which case the appellant and his brother would have been acquitted. However, the court also held that the admissions made by the appellant between 1998 and 2004 constituted clear and compelling evidence of his guilt. In light of this the Court of Appeal found that it was in the interests of justice to order a retrial of the appellant. The Supreme Court dismisses the appeal by a majority of 3:2. Lord Dyson gives the lead judgment. Lords Rodger and Mance give short concurring judgments. Lords Brown and Collins dissent. On 17 November 2010 the Supreme Court handed down its decision but withheld its reasoning until the completion of the retrial. On 16 June 2011, in Leeds Crown Court Paul Maxwell pleaded guilty. By section 7 of the Criminal Appeal Act 1968, as amended, Parliament has given the Criminal Division of the Court of Appeal the power to order a retrial where, having regard to all the circumstances of the particular case, in its view the interests of justice so require. The interests of justice is not a hard edged concept. Rather, it requires an exercise of judgment in which a number of relevant factors have to be balanced against each other. A decision of the Court of Appeal as to whether the interests of justice require a retrial should only be upset on appeal if it was plainly wrong in the sense that it is one which no reasonable court could have made or if the court took into account immaterial factors or failed to take into account material factors: [18] [19]. The majority of cases under section 7 of the 1968 Act do not involve any issue of prosecutorial misconduct. Indeed, no case was cited where the court had to consider the relevance of prosecutorial misconduct in the original proceedings to the question of whether the interests of justice require a retrial. Usually, under section 7 the court will consider the gravity of the offence, the length of time the appellant is likely to serve in custody if reconvicted, the appellants age and health, and the wishes of the victim of the alleged offence: [20]. Where prosecutorial misconduct is involved the Court of Appeal may treat the case as to some extent analogous to an application to stay proceedings as an abuse of process where it offends the courts sense of justice and propriety to try the accused. However, the tests for when the court should stay proceedings for abuse of process and when it should order a retrial are not coterminous. The question of whether the interests of justice require a retrial is broader than the considerations involved in an application for a stay: [21], [44]. It is common ground that the prosecutions case at a retrial would not be based on any evidence which was the product of the misconduct. However, the new evidence constitutes admissions made by the appellant which would not have been made but for the original misconduct which led to his conviction. The Court of Appeal was right to consider that the but for factor was no more than a relevant factor and that it was not determinative of the question whether a retrial was required in the interests of justice. In deciding whether to order a retrial, there were several relevant factors which had to be weighed in the balance. The balancing act is fact sensitive and ultimately requires an exercise of judgment. The Court of Appeal carried out the balancing exercise precisely and with great care. They held that there were strong reasons for not ordering a retrial given the egregious misconduct by the police. However, they concluded that the public interest in convicting those guilty of murder prevailed on the facts of this case. In particular this was because of the gravity of the alleged offence and the existence of new and compelling evidence untainted by the police misconduct. The fact that a differently constituted Court of Appeal might have come to a different conclusion is not material. Accordingly, the decision of the Court of Appeal was not plainly wrong and its judgment should not be interfered with: [23] [38], [45] [47], [50] [60]. Lord Brown, with whom Lord Collins agrees, would have allowed the appeal. They would have held that since the appellant would not have made the admissions but for the prosecutorial misconduct and in light of the enormity of the police misconduct, it is inappropriate that that the case should be retried on new evidence: [102] [105].
This is an application for directions in a pending appeal. The appeal concerns a claim in negligence by Mr Gabriel (the Appellant) against his solicitors (the First Respondent). The trial judge awarded Mr Gabriel 200,000 in damages and ordered the solicitors to pay Mr Gabriels costs. The Court of Appeal reduced the damages award to a nominal 2, set aside the judges costs order, and ordered Mr Gabriel to pay the solicitors costs of the proceedings up to and including the appeal. That order was made on 22 November 2013. On 5 March 2014, Mr Gabriel was made bankrupt. On 25 March 2014, Mr Hughes Holland was appointed as his trustee in bankruptcy. Also on 25 March 2014, permission was granted for the appeal to proceed to the Supreme Court. The right to pursue the appeal now rests with the trustee. If a trustee in bankruptcy decides to adopt legal proceedings which were on foot at the time of the bankruptcy, the trustee personally becomes a party to those proceedings in place of the bankrupt, either by way of formal substitution or simply by virtue of being treated as if he has been substituted. An order for costs may therefore be made against the trustee personally if the proceedings are unsuccessful. The trustee then has a right of indemnity against the bankrupts assets if the costs liability is properly incurred. Mr Hughes Holland accepts that if he decides to pursue this appeal and loses he will be personally liable for the solicitors costs before the Supreme Court. However, he says that he is not personally at risk by virtue of adopting the appeal as trustee in bankruptcy for the solicitors costs of the proceedings before the trial judge and the Court of Appeal. If Mr Hughes Holland pursues the appeal and wins, then Mr Gabriels creditors will receive between 23p and 25p in the pound instead of between 3p and 5p in the pound. But if Mr Hughes Holland pursues the appeal and loses, and he is ordered to pay not only the costs of the appeal to the Supreme Court but also the costs of the hearings below, the costs liability will exceed the value of the estate and Mr Hughes Holland will probably have to make up the difference from his own pocket. He therefore seeks confirmation as to the costs position so that he can decide whether to pursue the appeal. The solicitors argue that the Supreme Court does not have jurisdiction to make any order as to costs at this stage and in any event that Mr Hughes Holland should be personally liable for the costs of the proceedings below if he loses the appeal. The Supreme Court unanimously holds that if Mr Hughes Holland decides to pursue the appeal he will not by virtue only of his office as Mr Gabriels trustee in bankruptcy or of his adoption of the appeal be held personally liable for costs of the hearings before the trial judge and the Court of Appeal. Lord Sumption gives the only judgment, with which all other members of the Court agree. The Supreme Court has jurisdiction to deal with this application and it is proper to exercise it. Section 40(5) of the Constitutional Reform Act 2005 empowers the Court to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment. Rule 46 of the Supreme Court Rules 2009 further provides that the court may make such costs orders as it considers just, and that it may do so either at final determination of an appeal, or application for permission to appeal, or in the course of proceedings. It is not usual for the court to decide an issue going to costs before the hearing of the substantive appeal. However, the ruling is necessary now to enable the trustee to decide whether to proceed, and the court is in as good a position to decide this issue now as it would be later: the application does not raise any discretionary considerations, nor does it affect the propriety of any decision of the trustee to pursue the appeal. [6 8] The Court of Appeal authority Borneman v Wilson (1884) 28 Ch D 53 suggests that a trustee in bankruptcy must either adopt proceedings in their entirety or not at all, even where there are discrete prior proceedings conducted by the bankrupt before his appointment. At that time, the court did not have jurisdiction to award costs against a non party, which would have included the bankrupt where the trustee had been substituted for the bankrupt; moreover, liability under such an order would not have been provable against the estate because of a line of case law which said that such liability was not contingent at the time of bankruptcy. The jurisdiction to award costs against a non party was recognised by the House of Lords in 1986 and the possibility of proving liability under a costs order against a company in liquidation, and consequently also against a bankrupts estate, was recognised by the Supreme Court in 2014. The reasons behind the Court of Appeals conclusion in Borneman are therefore no longer relevant and it is possible to revisit the issue as a matter of principle. [11 14] It may be appropriate as a matter of discretion to order a trustee in bankruptcy to pay the other sides costs of legal proceedings including those incurred before the trustee became a party, but there is no longer any absolute rule to that effect. [15] But the issue in this application does not concern that discretionary assessment. A trial and the successive appeals from the order made at trial are distinct proceedings in the same action and a distinct order for costs is made in respect of each stage. [16] Mr Gabriel was responsible for the entire conduct of the trial and the appeal to the Court of Appeal, and the costs order which was made against him by the Court of Appeal is a provable debt in his bankruptcy. It would be contrary to principle for Mr Hughes Holland to be held liable for costs in the proceedings below, as this would merely give the solicitors an unwarranted priority for their claim under the Court of Appeals costs order. [17]
Mr Nunn was convicted in November 2006 of killing his girlfriend following the end of their relationship. Her body was found by a river two days after that end, having been subjected to various indignities and abuses. Evidence was given at trial that he had rowed noisily with her on the night she disappeared, and had been seen carrying what appeared to be a body out of her house. Small traces of sperm were found on her inner thigh and pubic area. Mr Nunn consistently asserted his innocence before, during, and following his trial. He pointed to the sperm presence as indicating another killer, since he had had a vasectomy. Following his conviction Mr Nunn sought to appeal, which was refused. In January 2008 Mr Nunn began to make written applications to the police for supply of all of their records of the investigation into his case. By February 2010 he had instructed fresh solicitors, who made further applications to the police on his behalf. They initially sought the investigation records and requested fresh enquiries to be made into Mr Nunns girlfriends finances. Some research was undertaken, and the CPS responded saying that the deceased had not been living beyond her means. A number of other requests followed, including a request for notes of the forensic scientists working on the case, and various items of evidence. The police formally replied, stating that their only obligation was to disclose material which might cast doubt on the safety of the conviction. Mr Nunn judicially reviewed that decision, arguing that the police were required to provide, after conviction, the same disclosure as is required of them pending trial and appeal. The Divisional Court rejected that application. Mr Nunn appealed to the Supreme Court, arguing that there is an enforceable common law disclosure obligation requiring the police to provide, in his case, at least: (i) Access to the working papers of the forensic scientists who advised the Crown and/or gave evidence, and (ii) Requests for re testing or first testing of various items of evidence recovered in the course of the investigation. The Supreme Court unanimously dismisses the appeal. Lord Hughes gives the only reasoned judgment, with which the other members of the Court agree. The common law duty of disclosure exists in addition to the statutory duty of trial disclosure created by the Criminal Procedure and Investigations Act 1996 (CPIA 1996). The basis of the common law duty is fairness, and what fairness requires varies depending on the stage reached by the proceedings. There is no basis for the submission that the full trial duty of disclosure and investigation continues indefinitely: this would be contrary to the public interest in finality and to the need for finite police resources to be appropriately applied. The extent of the common law duty post appeal is correctly stated in the Attorney Generals guidelines: any material coming to light that might cast doubt on the safety of the conviction should be disclosed. However, the Criminal Cases Review Commission can, in appropriate cases, make enquiry to see whether a reasonable prospect of a conviction being quashed can be demonstrated, which includes a power to direct new scientific tests and similar. Moreover, the police and prosecutors can choose to accede to representations for further enquiry made on behalf of convicted persons, and should exercise sensible judgment in relation to such representations. The Crowns duty of disclosure and inspection was formulated by the common law in the second half of the twentieth century, mirroring parallel developments in other common law jurisdictions. A general duty was formulated to disclose any evidence reasonably thought capable of assisting a defendant [16]. Inspection would generally go with disclosure, though there were additional considerations in this sphere [17]. The CPIA 1996 put the duty of disclosure on a statutory footing, displacing the common law duties within its sphere of operation, and applying to any material which might reasonably be considered capable of undermining the case for the prosecution or of assisting the case for the accused. That statutory duty is temporally limited: for Crown Court cases, it applies between the arrival of the case in the Crown Court to the end of the trial [18 20]. Thus it does not apply to Mr Nunn. The basis of the common law duty of disclosure is fairness. However, fairness does not require the same level of disclosure at every stage of the process [22]. Before committal, the duty is limited to evidence that might be relevant at that stage [23]. Similarly, pending sentence, the duty is only to disclose material relevant to sentence [24] and, pending appeal, to disclose material relevant to the appeal [25]. That conclusion is consistent with the approach reached in other common law jurisdictions: New Zealand, Canada and America [26 28]. Therefore there is no basis for finding a temporally limitless duty of disclosure post conviction identical to that subsisting during trial [29]. During trial, the defendant is presumed innocent: post conviction he/she is proved guilty. There is an important public interest in exposing any flaw in the conviction, but there is also a powerful public interest in finality of proceedings [32], and in ensuring that the polices finite resources are applied to current investigations, unless there is a good reason for review [33]. The remaining question was what the post conviction duty of disclosure does entail [34]. Clearly, if the police or prosecution come into possession of evidence affording arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant [35]. This was the limit of the duty of disclosure [38]. There are however additional safety nets: o The CCRC has a power to review any conviction and refer a conviction it considers unsafe to the Court of Appeal. It has extensive investigative powers including powers to require production of evidence held by public bodies, to appoint investigators, and to assemble fresh evidence [20]. Its powers include making enquiries to see whether a prospect of a reasonable conviction can be shown, which includes a power to direct new scientific tests [39]. o It is always open to police and prosecutors to accede to representations made on behalf of convicted persons. Police and prosecutors should exercise sensible judgment when such representations are made and, if there appears to be a real prospect that further enquiry will uncover something of real value, there should be co operation in making those further enquiries [41].
Land that has been used by the inhabitants of a locality for sports and pastimes as of right for at least 20 years may be registered as a town or village green, pursuant to the Commons Registration Act 1965 (the Act). If the registration is wrongly made, an application can be made under section 14(b) for the register to be rectified. The issue in these appeals is the effect of a lapse of time on an application for rectification. The first appeal concerns land known as Clayton Fields in Huddersfield. Planning permissions dating back to the 1960s had been granted for housing development on the land, and it remained designated for such development in local plans. No building had however occurred by 1996, when an application by the Clayton Fields Action Group (the Action Group) was successfully made to register the land as a village green. The then landowners sold the land to the respondent (Paddico) in 2005, and in 2010 Paddico applied for rectification of the register. The application was granted by Vos J in the High Court, who held that the land had been wrongly registered as it had not been used by inhabitants from a single locality, and it was just to rectify the register, notwithstanding the long delay, as little prejudice (harm or detriment) had been demonstrated by the residents. The Court of Appeal agreed with the judge that the land had been wrongly registered but, by a majority, allowed the Action Groups appeal on the ground that the delay in seeking rectification made it unjust to rectify. In the second appeal, the Society for the Protection of Markham and Little Francis (the Society) successfully applied to register an area of 46 acres of open land in Weymouth as a village green in June 2001. The land was sold to the respondent (Betterment) in May 2005, who applied to rectify the register in December 2005. The application was granted in the High Court. Morgan J found that the registration should not have been made, as the use of the land had not been as of right, and that it was just to rectify the register as the inhabitants had been enjoying rights which they should never have had. His order was upheld by the Court of Appeal. Paddico and the Society appealed to the Supreme Court on the sole issue of the relevance of the lapse of time before making an application to the question of whether it was just to rectify the register. The Supreme Court unanimously allows Paddicos appeal, and dismisses that of the Society. It holds that a lapse of time is not immaterial to the justice of applications for rectification but that in these cases there was no evidence before the court to show that significant detriment to others had occurred as a result. Lady Hale gives the only judgment. Where an application for rectification in respect of land wrongly registered as a village green is made there are many private and public interests in play: those of the landowners who have been severely restricted in the use to which the land can be put; those of the local inhabitants who have been enjoying the amenity of the green; and those of the wider public, which include the protection of the accuracy of public registers, the preservation of public open spaces and the securing of the use of land earmarked for development for that purpose [1]. If there has been a lapse of time before making the application the court must adopt a principled approach to its relevance in circumstances where there is no precise analogy with public law claims (which are subject to short time limits), private law claims subject to limitation periods, or private property claims subject to the equitable doctrine of laches (unconscionable delay) [20]. The starting point is the Act itself, which lays down no limitation period for s 14 applications. S 14 has no bias either for or against rectification. The principles of good administration require not only a conclusive register but that the register is accurate and has been lawfully compiled. The focus is primarily on justice as between the applicant and the local inhabitants [33]. Where the applicant is the owner of the land, his rights have been severely curtailed when they should not have been and the inhabitants have acquired rights which they should not have. The lapse of time is not however immaterial. The best analogy is with the doctrine of laches which generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice, if it is to bar the remedy [34]. Knowledge of the facts is unlikely to be a problem as landowners have an opportunity to object to the registration before it is made and subsequent purchasers are able to consult the register before deciding to buy. The fact that a purchaser bought the land with notice of the registration is unlikely to make much difference as he still suffers harm from the curtailment of his rights [35]. The crux of the matter is usually the question of detriment or prejudice, of which there are at least four relevant kinds: (i) detriment to the local inhabitants, although this may not be weighty given that this is a right they should never have had [38]; (ii) detriment to other individuals who may have made decisions to purchase property near the land based on the register [39]; (iii) detriment to public authorities and those they serve in, for example, the allocation of land for residential development [40]; and (iv) detriment to the fair hearing of the case after the lapse of time. Even after a long delay there must be some material from which to infer that public or private decisions have been taken on the basis of the existing register which have operated to the respondents significant detriment [42]. Applying these principles, the courts below had reached the right decision in the Betterment application, where there was no evidence of detriment [43]. In the Paddico application, the trial judge had correctly found that, although the lapse of time was over 12 years, there was no evidence of specific detriment to the local inhabitants, but injustice to the landowner by being deprived of the right to seek to develop the land, and to the public in the unavailability of the land for such development. The judges order for rectification would be restored [44].
Liability for non domestic rates depends on a property being entered as a hereditament in the rating list. Section 46A of and Schedule 4A to the Local Government Finance Act 1988 (the 1988 Act) create a completion notice procedure, by which a new building that has not yet been occupied may be brought into the rating list. Where a completion notice has been validly served the building to which it relates is deemed to have been completed on the date specified in the notice. It is then shown in the rating list as a separate hereditament, valued as if it were complete, and its owner or occupier becomes liable to an assessment for non domestic rates. In January 2009, the respondent (UKI) began the redevelopment of a building at 1 Kingsway. In February 2012, the appellant council informed UKIs agents that it intended to serve a completion notice specifying a completion date of 1 June 2012. The building was being managed by Eco FM (Eco), under a contract with UKI, but Eco had no authority to accept service on UKIs behalf. On 5 March 2012, the council delivered a completion notice by hand to the building, specifying 1 June 2012 as the completion date. It was addressed to Owner, 1 Kingsway, London WC2B 6AN. It was given to a receptionist employed by Eco, who scanned and emailed a copy of the notice to UKI, which received it by no later than 12 March 2012. On 29 March 2012, an appeal was lodged by UKIs agents against the completion notice, on behalf of Eco, on the grounds that the service of the notice was invalid because it was not served on UKI but on the receptionist for Eco. On 7 May 2013, the premises were brought into the rating list with effect from 1 June 2012. UKI proposed that the entry be deleted due to invalid service, but this was not accepted by the valuation officer. The Valuation Tribunal allowed the appeal against the completion notice and the inclusion of the premises in the rating list. The Upper Tribunal reversed that decision, but it was re instated by the Court of Appeal. The issue for the Supreme Court is whether the completion notice was validly served on the date it was received by UKI, in circumstances where: (i) it was not delivered directly but passed through the hands of Ecos receptionist, who was not authorised for that purpose by either party; and (ii) it was received in electronic, rather than paper form. Indirect service The Supreme Court unanimously allows the appeal and restores the order of the Upper Tribunal. Lord Carnwath gives the lead judgment. (i) The means of service prescribed by the statute are not exclusive. Under ordinary principles the real issue is whether the council caused the notice to be received by UKI [36]. Regarding the interposition of a third party, in the form of the Eco receptionist, it is unnecessary and unrealistic to introduce concepts of agency or statutory delegation. As the Upper tribunal observed, the Eco receptionist did no more than would reasonably be expected of a responsible employee in that position. It was the natural consequence of the councils actions [37]. Causation does not depend on control. For example, if a notice is correctly addressed, but mistakenly delivered to a neighbour who passes it on to the intended recipient, there is no reason why that should not be treated as effective service under ordinary principles of causation, even though that neighbour was not under the control of either party [38]. Arguments about possible uncertainty are not persuasive, since some uncertainty in this respect is inherent in the legislation, in which neither the methods of service nor the dates of service in different circumstances are exhaustively defined. Where the date of service is critical, a billing authority may choose a statutory method of service that eliminates or minimises the risk of invalidity by failure to specify the correct date of service. If it chooses a non statutory method, it must bear that risk. The risk of prejudice to the building owner is limited, as outside the statutory methods service depends on actual receipt by the intended recipient [42 43]. (ii) Electronic communication Before the enactment of the Electronic Communications Act 2000 (the 2000 Act), the state of the law was such that service by fax was valid. There is no good reason for distinguishing transmission by fax from transmission by email as in this case. Parliament must be taken to have legislated against that background. The respondent has not been able to indicate any provision of the 2000 Act that expressly or impliedly restricts the previous law, nor an overall inconsistency sufficient to overcome the general presumption that Parliament does not intend to change the common law [44 45]. The purpose of the 2000 Act and Orders made under it is to provide a clear and certain basis for the routine use of electronic methods by authorities. That purpose is not undermined by a conclusion that under general principles, and on the particular facts of this case, the notice was successfully served by email. Therefore, the property was correctly brought into the rating list with effect from 1 June 2012 [46].
Mr Patel gave Mr Mirza 620,000 to place bets on a banks share prices with the benefit of insider information. Mr Mirza expected his contacts to inform him of a government announcement about the bank. Mr Mirzas expectation was not fulfilled and the intended betting did not take place. But Mr Mirza did not return the money to Mr Patel. Mr Patel brought a claim against Mr Mirza for the money and Mr Mirza contended that the claim should fail because of the illegality of the arrangement with Mr Patel. The issue was when involvement in illegality bars a claim. Mr Patel succeeded in the Court of Appeal and Mr Mirza was required to repay the money. Mr Mirza appealed to the Supreme Court. The Supreme Court unanimously dismisses Mr Mirzas appeal. Mr Patel is entitled to restitution of the 620,000 which he paid to Mr Mirza. Lord Toulson (with whom Lady Hale, Lord Kerr, Lord Wilson and Lord Hodge agree) gives the lead judgment. Lord Neuberger, Lord Mance, Lord Clarke and Lord Sumption concur in the result, but by different processes of reasoning. Lord Mansfield said in Holman v Johnson (1775) 1 Cowp 341, 343 that no court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act [1]. Behind this maxim, there are two broad policy reasons for the common law doctrine of illegality as a defence to a civil claim. First, a person should not be allowed to profit from his own wrongdoing. Second, the law should be coherent and not self defeating, condoning illegality by giving with the left hand what it takes with the right hand [99]. The reliance test expressed in Tinsley v Milligan [1994] 1 AC 340 bars the claimant if he/she relies on the illegality in order to bring the claim. This test has been criticised and Tinsley should no longer be followed [110]. The essential rationale of the illegality doctrine, as explained by the Supreme Court of Canada in Hall v Hebert [1993] 3 RCS 159, is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system. In assessing whether the public interest would be harmed in that way, it is necessary to consider a) the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, b) any other relevant public policy on which the denial of the claim may have an impact and c) whether denial of the claim would be a proportionate response to the illegality. Various factors may be relevant, but the court is not free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate [120]. In considering whether it would be disproportionate to refuse relief to which the claimant would otherwise be entitled, as a matter of public policy, various factors may be relevant. Potentially relevant factors include the seriousness of the conduct, its centrality to the contract, whether it was intentional and whether there was marked disparity in the parties respective culpability [107]. A claimant, such as Mr Patel, who satisfies the ordinary requirements of a claim for unjust enrichment, should not be debarred from enforcing his claim by reason only of the fact that the money which he seeks to recover was paid for an unlawful purpose. There may be rare cases where for some particular reason the enforcement of such a claim might be regarded as undermining the integrity of the justice system, but there are no such circumstances in this case [121]. Lord Kerr writes a concurring judgment elaborating on aspects of Lord Toulsons judgment. Lord Kerr identifies that there is a choice of approaches between a rule based approach on the one hand and on the other a more flexible approach, taking into account the policy considerations that are said to favour recognising the defence of illegality [133]. A rule based approach to the question has failed to lead to the predictability it sought. Further, it is questionable whether particular weight should be given to predictability where a claimant and defendant have been parties to an illegal agreement [137]. Lord Neuberger [143, 163], Lord Mance [197 199], Lord Clarke [210] and Lord Sumption [250, 253] all conclude there is no inconsistency in the law in permitting a party to an illegal arrangement to recover any sum paid under it, so long as restitution is possible. An order for restitution simply returns the parties to the positon in which they would and should have been, had no such illegal arrangement been made. Lord Neuberger goes on however to express the further view that, in relation to other issues involving illegal arrangements, the approach suggested by Lord Toulson provides as reliable and helpful guidance as it is possible to give [174, 186]. Lord Mance, Lord Clarke and Lord Sumption, in separate judgments expressing general agreement with each other, consider that, with the above clarification of the operation of restitution, there is no basis for substituting for the clear cut principle identified in Holman v Johnson and Hall v Hebert, founded on the need to maintain the integrity of the law, a mix of factors as advocated by Lord Toulson, which would not offer the same coherence or certainty [206 207, 216 219 and 259 265].
Lukaszewski (L), Pomiechowski (P) and Rozanski (R) are Polish citizens who are each the subject of a European Arrest Warrant (EAW) issued by the Polish court. Each is wanted in order to serve an existing sentence. L is wanted, in addition, to stand trial on ten charges of fraud. The fourth appellant, Halligen (H), is a British citizen whose extradition is sought to the USA under Part 2 of the Extradition Act 2003 (the Act) to face allegations of wire fraud and money laundering. All four appellants were arrested and brought before Westminster Magistrates Court. L, P and Rs extradition were ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Hs case was sent to the Secretary of State for her to decide whether H should be extradited. On 22nd December 2010, Hs extradition was ordered by the Secretary of State, and the order and a letter setting out the Secretary of States reasons were sent by post and fax (at either 15.48 or 16.48) to Hs solicitors on that same day. All four appellants were remanded in custody at HMP Wandsworth pending extradition. The permitted time period for giving notice of appeal against an extradition order was 7 days in the case of L, P and R, and 14 days in the case of H. L, P and R were each assisted by a prison officer working in the legal services department at HMP Wandsworth to complete a notice of appeal. The legal services department faxed the notices of appeal to the Administrative Court for filing and stamping, which faxed back a copy of the sealed front page to the legal services department. The legal services department then faxed to the Crown Prosecution Services (CPS), as legal representatives of the judicial authority of the state requesting surrender, a copy of the sealed front page together with a cover sheet. In the case of each of L, P and R, all this occurred within the 7 day permitted period. However, in each case, the CPS was not served with a full copy of the notice of appeal, sealed or unsealed, until after the 7 day time limit had expired. The High Court held it had no jurisdiction to hear the appeals. A notice of appeal had to be both filed and served within the non extendable permitted period, and must (a) identify the appellant, (b) identify the decision against which he seeks to appeal, and (c) set out at least the gist of the basis on which the appeal is sought to be presented. Accordingly, the purported notices of appeal were invalidly constituted and served out of time. Hs solicitors prepared a notice of appeal, attaching grounds of appeal, on 23rd December 2010. The notice of appeal was filed and stamped on 29th December 2011, well within the 14 day permitted period which expired at midnight on 4th January 2011. However, only on 5th January 2011 did Hs solicitors send the notice of appeal to the CPS by fax and to the Home Office by post (reaching the latter on 6th January 2011). H himself had written from prison by fax to the Home Office on 29th December 2010 asking them to accept the letter as notice & service of my intent to appeal that decision and stating that he had instructed solicitors for that purpose. The High Court held it had no jurisdiction to hear Hs appeal, that Hs letter of 29th December 2011 did not constitute a valid notice of appeal, and the Secretary of State should be treated as having informed H of her decision on 22nd December, not 23rd December, 2011, so that the purported notice of appeal was in any event served out of time. All four appellants appealed the decisions of the High Court to the Supreme Court. The Supreme Court allows all four appeals unanimously. Lord Mance gives the leading judgment of the Court. Lady Hale gives a separate concurring judgment. The requirement under the Act that a notice of an appeal be given within the relevant permitted period meant that it had to be filed in the High Court and served on all respondents to the appeal within such period (following the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL 2) [5], [17]. However, a generous view should be taken of this requirement, bearing in mind the shortness of the permitted periods under the Act and that what really matters is that an appeal should have been filed and that all respondents be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal [18]. In the cases of L, P and R, the irregularity involved in the absence of pages following the sealed front page of their notices of appeal was capable of cure. The CPS, having received in time the sealed front page of each notice of appeal, can have had no difficulty in identifying the decisions being appealed. It would be disproportionate if the practice followed by the court and the prison legal services department should lead to the appellants losing their right of appeal [19]. The Court regards Hs letter as notice to the Secretary of State of an appeal within the Act, albeit that the letter was highly irregular in its form [20]. However, even if it is accepted that Hs solicitors only received the relevant fax from the Secretary of State at 16.48, there was no basis for deeming the fax to have been received the following day. It follows that no notice of an appeal was given to the CPS within the permitted period, and Hs appeal is on its face impermissible as against both respondents [21]. In these circumstances, the question for the Court is whether the apparently inflexible time limits for appeals within the Act are subject to any qualification or exception [22]. Under Article 6(1) of the Human Rights Convention, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of any criminal charge against him. The Court is satisfied that extradition does not involve the determination of a criminal charge [31]. However, H, as a UK citizen, enjoyed a civil right to enter and remain in the UK as and when he pleased [32]. Proceedings under the Act, in that they may affect Hs freedom to remain in the UK, at least for the duration of foreign extradition proceedings, involve the determination of that civil right [32]. It follows that the extradition proceedings against H fall within Article 6(1) [33]. In the case of a UK citizen, the statutory provisions concerning appeals can and should be read (pursuant to the obligation of conforming interpretation under section 3(1) of the Human Rights Act 1998) as being subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1). Accordingly, the Court allows all four appeals and remits each appeal against extradition to the High Court to be heard there [19], [41].
The appeals arise out of the attempted enforcement of an investment arbitration award (the Award) in favour of the Respondents to this appeal (the Claimants) against the Appellant (Romania) in relation to investments made by the Claimants in food production in Romania before the country acceded to the European Union (EU). With effect from 1 April 1999, Romania adopted an investment incentive scheme for certain regions (EGO 24). On 30 June 1999, Romania incorporated EU State aid rules into domestic law, as a result of which EGO 24 was modified. During the early 2000s, the Claimants invested in a large, highly integrated food production operation in the relevant region in reliance on EGO 24. In 2002, Romania and Sweden entered into a bilateral investment treaty (the BIT) providing reciprocal protection of investments and investor State arbitration under the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention). During the accession negotiations between Romania and the EU before its accession on 1 January 2007, the EU informed Romania that certain schemes, including EGO 24, were contrary to EU State aid rules. As a result, Romania repealed all but one of the incentives under EGO 24. On 28 July 2005, the Claimants filed a request for ICSID arbitration under the BIT based on this repeal. On 11 December 2013, the tribunal issued the Award, deciding that Romania had breached the BIT and awarding compensation of approximately 70m plus interest. Romania unsuccessfully applied to annul the Award. Romania purported to implement the Award by setting off tax debts owed by one of the Claimants. This precipitated the European Commission issuing an injunction on 26 May 2014 ordering Romania to suspend any action that might lead to execution of the Award until the Commission had taken a final decision on its compatibility with State aid rules (the injunction decision). On 1 October 2014, the Commission formally opened a State aid investigation (the initiating decision). On 30 March 2015, the Commission adopted a final decision (the Commission Decision) concluding that the payment of the Award by Romania constituted unlawful State aid. The Claimants sought annulment of the Commission Decision before the General Court of the European Union (the GCEU) in 2015. On 18 June 2019, the GCEU annulled the Commission Decision on the ground that the Commission had purported to apply its powers retroactively to events pre dating Romanias accession to the EU. The Commission applied to appeal this decision. The English proceedings were started in 2014 by the Claimants applying for registration of the Award under the Arbitration (International Investment Disputes) Act 1966 (the 1966 Act), which was granted. In 2015, Romania applied for a stay of enforcement and the Claimants sought an order for security. In 2017, the High Court granted Romanias application to stay enforcement pending the GCEU proceedings and refused the Claimants application for security. The Claimants appealed these orders. In 2018, the Court of Appeal continued the stay but ordered that Romania provide security. Romania appealed the order for security and the Claimants cross appealed the grant of a stay. The hearing before the Supreme Court was listed to start on 18 June 2019, but that morning the GCEU handed down its judgment, causing the hearing to be adjourned until October 2019. The Supreme Court unanimously allows the Claimants cross appeal and lifts the stay. In light of this, it is no longer necessary to consider Romanias appeal in relation to security, so that order is discharged. Lord Lloyd Jones and Lord Sales give the judgment, with which all members of the Court agree. The Court considers the Claimants cross appeal first [40]. The Claimants appeal the stay on five grounds: (1) the effect of the GCEUs judgment is that the duty of sincere co operation no longer requires the English courts to stay enforcement; (2) there is no power to order a stay under the ICSID Convention and the 1966 Act; (3) the stay is incompatible with the ICSID Convention; (4) the European Communities Act 1972 does not require the United Kingdom to breach pre accession obligations under the ICSID Convention; and (5) Article 351 of the Treaty on the Functioning of the EU (TFEU) applies, with the result that the obligations of the United Kingdom under the pre accession ICSID Convention are not subject to the overriding effect of EU law [38] [39]. First, the Claimants submit that the GCEU decision annulling the Commission Decision changes the circumstances, meaning there is no EU law duty on the English courts to stay enforcement [43]. Romania, and the Commission intervening, submit that the GCEU judgment annuls only the Commission Decision and not the injunction or initiating decisions [44]. The Court considers that the GCEU judgment leaves in existence an extant Commission investigation into State aid. Without a final Commission decision closing the formal investigation procedure, the effects of the initiating decision subsist, imposing a duty of sincere co operation on the English courts [51]. Second, in relation to the Claimants second and third grounds, the Court examines the ICSID Convention and the 1966 Act [60] [63]. The Court emphasises that the scheme of the ICSID Convention does not permit a domestic court before which recognition is sought to re examine an award on its merits, once its authenticity is established [68]. In light of the wording of articles 54(1) and the preparatory materials, it is arguable that there is scope for certain exceptional defences against enforcement if national law recognises them in respect of final domestic judgments [78]. Though the proper interpretation of article 54(1) of the ICSID Convention is something which could only be authoritatively resolved by the International Court of Justice, it does not affect the outcome of the present case [83]. The Court agrees with the majority in the Court of Appeal that English courts have the power to stay execution of an ICSID award in the limited circumstances they describe, but in the present circumstances the granting of a stay exceeds the proper limits of that power and is not consistent with the ICSID Convention [84]. Finally, the Claimants fourth and fifth grounds collapse into one another and thus fall to be considered together [89]. Article 351 TFEU is intended to establish that the application of the EU treaties does not affect the duty of a member state to respect the rights of non member states under a prior agreement and to perform its obligations thereunder [97]. In the Courts view, the specific duties in articles 54 and 69 of the ICSID Convention are owed to all other Contracting States, including non member states [107] [108]. The duty of sincere co operation does not require courts in this jurisdiction to decline to decide the issue pending its resolution by the EU courts; EU case law makes it clear that questions regarding prior treaties under article 351 are not reserved to the EU courts. The article 351 issue here the extent of the United Kingdoms obligations under the ICSID Convention is not the same issue that is before the EU courts [112] [113]. The possibility that the EU courts may consider the issue at some future stage is contingent and remote. In such circumstances the duty of sincere co operation does not require the imposition of a stay of enforcement of the Award [117]. The Court therefore allows the Claimants cross appeal and lifts the stay. In light of this conclusion, it is no longer necessary to consider Romanias appeal in relation to security [118] [119].
This appeal concerns the circumstances in which an arbitrator in an international arbitration may appear to be biased. It raises important questions about the duty of impartiality and obligation of arbitrators to make disclosure. The appeal relates to an arbitration under a liability insurance policy which arose out of damage caused by an explosion and fire on the Deepwater Horizon drilling rig in the Gulf of Mexico. BP Exploration and Production Inc. (BP) was the lessee of the Deepwater Horizon rig. Transocean Holdings LLC (Transocean) owned the rig and provided crew and drilling teams to BP. The appellant, Halliburton Company (Halliburton) provided cementing and well monitoring services to BP. Halliburton had entered into a Bermuda Form liability policy with the respondent, Chubb Bermuda Insurance Ltd (Chubb"). Transocean was also insured with Chubb by a Bermuda Form policy. The Deepwater Horizon disaster resulted in numerous claims against BP, Transocean and Halliburton. Following a trial in the US in which judgment was given apportioning blame between the parties, Halliburton settled the claims against it. Halliburton then sought to claim against Chubb under the liability policy. Chubb refused to pay contending that Halliburtons settlement was not a reasonable settlement. Transocean made a similar claim against Chubb and Chubb likewise contested Transoceans claim. The Bermuda Form policies provided for disputes to be resolved by arbitration. Halliburton commenced arbitration. Halliburton and Chubb each selected one arbitrator but were unable to agree on the appointment of a third arbitrator as chairman. As a result, after a contested hearing in the High Court, Mr Rokison, proposed by Chubb to the court, was appointed. Subsequently and without Halliburtons knowledge, Mr Rokison accepted appointment as an arbitrator in two separate references also arising from the Deepwater Horizon incident. The first appointment was made by Chubb and related to Transoceans claim against Chubb. The second was a joint nomination by the parties involved in a claim by Transocean against another insurer. On discovering Mr Rokisons appointment in the later references, Halliburton applied to the court under section 24 of the Arbitration Act 1996 to remove Mr Rokison as an arbitrator. That application was refused. On appeal, the Court of Appeal found that, while Mr Rokison ought to have disclosed his proposed appointment in the subsequent references, an objective observer would not in the circumstances conclude there was a real possibility Mr Rokison was biased. The appeal was therefore dismissed. Halliburton renews its challenge before the Supreme Court. The Supreme Court unanimously dismisses the appeal. It holds, for reasons which differ in part from courts below, that as at the date of the hearing to remove Mr Rokison, the fair minded and informed observer would not conclude that circumstances existed that gave rise to justifiable doubts about Mr Rokisons impartiality. Lord Hodge gives the leading judgment with whom Lord Reed, Lady Black and Lord Lloyd Jones agree. Lady Arden gives a concurring judgment. The law The duty of impartiality is a core principle of arbitration law [49]. In English law, the duty applies equally to party appointed arbitrators and independently appointed arbitrators [63]. In considering an allegation of apparent bias against an arbitrator, the test is whether the fair minded and informed observer would conclude there is a real possibility of bias [52, 55]. The courts will apply that objective test, having regard to the particular characteristics of international arbitration, including the private nature of most arbitrations [56 68]. The duty of disclosure is not simply good arbitral practice but is a legal duty in English law. It is a component of the arbitrators statutory obligations of fairness and impartiality [78]. The legal duty of disclosure does not, however, override the arbitrators duty of privacy and confidentiality in English law. Where information which needs to be disclosed is subject to a duty of confidentiality, disclosure can only be made if the parties owed confidentiality obligations give their consent. Such consent may be express but may also be inferred from the arbitration agreement itself in the context of the custom and practice in the relevant field of arbitration [88 104]. The arbitrators duty of disclosure is to disclose matters which might reasonably give rise to justifiable doubts as to his or her impartiality [107 116]. A failure to disclose relevant matters is a factor for the fair minded and informed observer to take into account in assessing whether there is a real possibility of bias[117 118]. In assessing whether an arbitrator has failed in a duty to make disclosure, the fair minded and informed observer will have regard to the facts and circumstances as at and from the time the duty arose [119 120]. In contrast, in assessing whether there is a real possibility that an arbitrator is biased, the fair minded and informed observer will have regard to the facts and circumstances known at the time of the hearing to remove the arbitrator [121 123]. The issues in this appeal There may be circumstances where the acceptance of multiple appointments involving a common party and the same or overlapping subject matter gives rise to an appearance of bias. Whether it does so will depend on the facts of the case and, in particular, the customs and practice in the relevant field of arbitration [127 131]. Where, as in the context of a Bermuda Form arbitration, the circumstances might reasonably give rise to a conclusion that there was a real possibility of bias, the arbitrator is under a legal duty to disclose such appointments unless the parties to arbitration have agreed otherwise [132 136]. Applying those conclusions to the facts, Mr Rokison was under a legal duty to disclose his appointment in the subsequent reference involving Chubb and Transocean. At the time of his appointment, the existence of potentially overlapping arbitrations with only one common party, Chubb, might reasonably have given rise to a real possibility of bias [145]. In failing to make that disclosure Mr Rokison breached his duty of disclosure [147]. However, having regard to the circumstances known at the date of the hearing at first instance, it could not be said that the fair minded and informed observer would infer from Mr Rokisons failure to make disclosure that there was a real possibility of bias. At the time, it had not been clear that there was a legal duty of disclosure. Secondly, the Transocean arbitrations had commenced several months after the Halliburton arbitration. Thirdly, Mr Rokisons measured response to Halliburtons challenge explained that it was likely the subsequent references would be resolved by a preliminary issue (as they in fact were) and that, if they were not, he would consider resigning from the Transocean arbitrations. There was therefore no likelihood of Chubb gaining any advantage by reason of overlapping references. Fourthly, there was no question of his having received any secret financial benefit, and, fifthly, there was no basis for inferring any unconscious ill will on his part. As a result, Halliburtons appeal fails [149 150]. Lady Ardens concurring judgment Lady Arden agrees with Lord Hodges judgment but makes a few further points to reinforce or, in some instances, qualify the conclusions reached. The duty of disclosure is a secondary obligation arising from the arbitrators primary duty to act fairly and impartially [160]. Unless the arbitration is one where there is an accepted practice of dispensing with the need to obtain parties consent to further appointments, the arbitrator should proceed on the basis that a proposed further appointment involving a common party and overlapping subject matter is likely to require disclosure of a possible conflict of interest [164]. The duty of disclosure is rooted in the duty of impartiality but is also an implied (if not express) term of the arbitrators appointment [167]. The parties can therefore agree to waive any objection to a conflict of interest, but disclosure is only an option if the conflict is one which would not prevent the arbitrator from acting impartially [168, 170]. Confidentiality is an important and free standing implied term [173 175]. But, in general, high level disclosure about a proposed appointment in a further arbitration can be made without any breach of confidentiality by naming only the common party (who may be taken to have consented to disclosure) but not the other parties to the arbitration [183 187].
This appeal concerns the relationship between two rights which enable non nationals to remain in the United Kingdom: humanitarian protection, which derives from European law, and asylum, which derives from a combination of domestic law, European law, and international law. The issue in the appeal is whether, because a right of appeal exists against a refusal of an asylum application, European law requires that a right of appeal also be available against a refusal of an application for humanitarian protection. FA is an Iraqi national who arrived unaccompanied in the United Kingdom in August 2007 when he was 15 years old. He made an application for asylum which the Secretary of State refused on the grounds that his claim was not credible. The Secretary of State also considered whether FA qualified for humanitarian protection and / or discretionary leave to remain in the United Kingdom. Humanitarian protection is the domestic means of providing the subsidiary protection which Directive 2004/83/EC (the Qualification Directive), a European legislative instrument, requires to be given to certain third country nationals and stateless persons. The Secretary of State decided that FA did not qualify for humanitarian protection, but granted him discretionary leave to remain until he was 17 and a half years old. Section 83(2) of the Nationality Immigration and Asylum Act 2002 entitled FA to appeal to the Asylum and Immigration Tribunal against the refusal of his claim to asylum. FA made such an appeal and also appealed against the refusal of his claim for humanitarian protection. The Tribunal dismissed both the asylum and humanitarian protection appeals, deciding in respect of the latter that no appeal was available to FA in relation to humanitarian protection. On appeal to the Court of Appeal, FA relied upon the European law principle of equivalence. This provides that, although it is for Member States to prescribe the procedural conditions necessary for the protection of European law rights, national rules regarding those procedural conditions must not be less favourable than those governing comparable domestic actions. FA argued that he must be entitled to a right of appeal against the humanitarian protection decision since the lack of an appeal would mean that this claim, based as it was on European law, was being subjected to rules which were less favourable than those which applied to the asylum claim, such a claim being based on national law. The Court of Appeal acceded to this argument and allowed FAs appeal. The Secretary of State appealed to the Supreme Court against that decision. The Supreme Court unanimously decides that a number of issues arise on the appeal which require a reference to the Court of Justice of the European Union for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union. Lord Kerr delivers the judgment of the panel. The critical question on the appeal is whether the principle of equivalence requires that a right of appeal must be available against the decision to dismiss FAs application for humanitarian protection. This in turn depends on whether there is a comparable domestic right which is subject to more favourable rules than his humanitarian protection right. It is clear that the humanitarian protection claim is subject to less favourable rules than the asylum claim, given that the latter provides FA with an appeal against the initial refusal. The issue, however, is whether the asylum claim is a legitimate comparator. This issue has a number of aspects, in particular: (i) whether the comparator with the European law claim must be a purely domestic measure; (ii) what is required in order that the compared measures may be regarded as sufficiently similar; and (iii) the source of the procedural rights of the asylum applicant. As to (i), on the one hand there is a consistent line of authority from the European Court of Justice to the effect that the domestic measure must be a purely domestic provision. If comparison with another European law provision was possible, much of the underlying purpose of the equivalence principle would be subverted, given that the essential reason for the development of the principle was that a European law right should not suffer disadvantageous treatment relative to national law rights. On the other hand, however, it might be inconsistent with the aim of eliminating discrimination and overly technical to preclude comparison with another right on the basis that the right could be branded as deriving partly from a European law source. [24] [25] As to (ii), various formulae have been employed in case law to describe the nature of the similarity that is required, including whether the purpose, essential characteristics and / or juristic structures of the two measures are the same. There is much to be said for the view that the question of the required similarity and the criteria necessary to establish it in an individual case will depend on the context in which the application of the principle of equivalence is canvassed. [40] [42] As to (iii), the asylum claim is based on provisions that were enacted in pursuance of the United Kingdoms obligations under the Qualification Directive. Yet they mirror requirements set out in the Refugee Convention, an instrument of international and not European law, and this may have been the original source of many of the provisions of the Qualification Directive. Whatever the answer to (iii), however, it does not provide an answer to (i) and (ii). Those essential questions have not been directly addressed by the European Court of Justice and for that reason a reference to the Court for a preliminary ruling under Article 267 of the Treaty on the Functioning of the European Union is required. [47] The Supreme Court decides to make such a reference and invites the parties to make submissions on the precise questions to be referred. [48]
These appeals arise out of the decision of the Government to promote the high speed rail link from London to the north known as HS2. The decision was announced in a command paper, High Speed Rail: Investing in Britains Future Decisions and Next Steps (Cm 8247, 10 January 2012) referred to as the DNS. The DNS included confirmation of the Governments high speed strategy and a summary of its decisions, and set out the process by which the Government intended to obtain development consent for HS2 through two hybrid bills in Parliament. The appellants commenced judicial review proceedings in April 2012. The appellants claim was upheld in relation to certain aspects of the consultation process but dismissed on the issues relevant to these appeals. The Court of Appeal gave judgment dismissing the appellants appeal in July 2013. The main issues for this court are first, whether the DNS should have been preceded by a strategic environmental assessment (SEA) under Directive 2001/42/EC (the SEA Directive), and secondly, whether the hybrid bill procedure, as currently proposed, will comply with the procedural requirements of Directive 2011/92/EU (the EIA Directive). The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the lead judgment on the first issue, with which Lord Neuberger, Lord Mance, Lord Kerr, Lord Sumption and Lord Reed agree. Lord Reed gives the lead judgment on the second issue, with which the other justices agree. Lord Sumption and Lady Hale give separate concurring judgments. Lord Neuberger and Lord Mance give a joint concurring judgment, with which the other justices agree, on the case law of the CJEU which forms the basis of the issues in the appeals. The SEA Directive and the Aarhus Convention The purpose of the SEA Directive is to prevent major effects on the environment being predetermined by earlier planning measures before the environmental impact assessment (EIA) stage is reached. The concept of a plan or programme embodied in the SEA Directive is not something which simply defines the project or describes its merits, but sets the framework for the grant of consent by the authority responsible for approving it. The purpose is to ensure that the decision on development consent is not constrained by earlier plans which have not themselves been assessed for likely significant environmental effects [35 36]. The DNS is an elaborate description of the HS2 project, including the thinking behind it and the governments reasons for rejecting alternatives. However, it does not constrain the decision making process of the authority responsible, which is Parliament. Formally, and in reality, Parliament is autonomous, and not bound by any criteria contained in previous Government statements [38 39]. Setting a framework implies more than mere influence [41]. There is a distinction in the context of the SEA Directive between merely influencing subsequent consideration and setting limits on the scope of what can be considered. Until Parliament has reached its decision, the merits of all aspects of the HS2 project remain open to debate [49]. There is also no reason to assume that plans or programmes covered by article 7 of the Aarhus Convention must also be subject to the SEA procedure. The SEA Directive must be interpreted and applied on its own terms [51 52]. It is not necessary to make a reference to the CJEU on this point [53]. Hybrid bill procedure and the EIA Directive The second question is whether the hybrid bill procedure is compliant with the requirements of the EIA Directive and whether it is appropriate for the court to consider the compatibility of the Parliamentary procedure at the present stage [56]. It was argued that the effect of (1) the whipping of the vote at the second and third readings, (2) the limited opportunity provided by a debate in Parliament for the examination of the environmental information, and (3) the limited remit of the select committee following second reading, is to prevent effective public participation, contrary to article 6(4) of the EIA Directive [73]. It is appropriate to consider the appellants contention at the present stage rather than waiting until legislation may have been enacted. The principal advantages are practical. The Parliamentary procedure will be costly and time consuming. It is convenient to have the point of law decided before further time and expense are incurred on the basis of what is argued to be a mistaken understanding by Government. The court can consider the effect of the Directive without affecting or encroaching upon any of the powers of Parliament [93 95]. The question whether it is in the public interest to proceed with a project of national importance, such as HS2, may be a matter of national political significance. It is partly for that reason that such decisions may be considered appropriate for determination by the national legislature rather than by the ordinary process of development control. The national legislatures of member states are political institutions whose decisions are likely to be influenced by the policy of the dominant Parliamentary party or parties. The influence of party and government policy does not prevent the members of national legislatures from giving careful and responsible consideration to information, including environmental information, which is relevant to the matters that they have to decide. The contention that the procedure currently envisaged by the Government will not permit an adequate examination of the environmental information to take place is unpersuasive. There is no reason to suppose that Members of Parliament will be unable properly to examine and debate the proposed project [108 113]. There is no need for the court to make a preliminary reference to the CJEU before reaching a decision on this matter [117]
This is an appeal against an order for the deportation of a foreign criminal who has children who are citizens of and resident in the United Kingdom. The appellant was born in Tunisia. In 1996 he married a UK citizen and they had a daughter, born in Northern Ireland, in 1997. Shortly after the birth, the appellant joined them in Northern Ireland on a spousal visa. A year later he was granted indefinite leave to remain. He separated from his wife in 1999, although they have never divorced. In 2006 he had a son with a new partner, but the relationship broke down shortly after the birth. In 2008 the Family Court ordered that he could only have indirect contact with his daughter and that he must obtain the leave of the court before making any further applications for contact. He has not had any contact with his son since 2010. In 2005 the appellant was convicted of two counts of assault occasioning grievous bodily harm, for which he received concurrent sentences of 39 months and nine months imprisonment. Between 2008 and 2010 he was convicted of and sentenced for a series of further offences, including breach of a non molestation order, disorderly behaviour and assaulting a police officer. Following a further incident in 2011 he was convicted of disorderly behaviour, attempted criminal damage and resisting a police officer for which he received three concurrent sentences of five months imprisonment. In 2012 the Home Secretary sought the appellants deportation on account of his convictions. Following inquiries regarding the appellants family circumstances, a deportation order was issued. The appellant appealed claiming that his deportation would breach his and his childrens right to respect for private and family life under article 8 of the European Convention on Human Rights and that the Secretary of State had failed to take sufficient account of the best interests of his children. His appeals to the First tier Tribunal, Upper Tribunal and Court of Appeal were dismissed. The Supreme Court unanimously dismisses Mr Makhloufs appeal. Lord Kerr gives the lead judgment with which the other Justices agree. Lady Hale gives a concurring judgment. Where a decision is taken about the deportation of a foreign criminal who has children residing in the United Kingdom, separate consideration of their best interests is required, especially if they do not converge with those of the parent to be deported and particularly in the case of a child with dual ethnic background. The childs interests must rank as a primary consideration [40]. The question of whether sufficient consideration of the article 8 issues which arise in a particular case can take place through the application of the immigration rules has been thoroughly discussed in the associated case of Ali v Secretary of State for the Home Department [2016] UKSC 60. But the issue in this case is simply whether the Secretary of State was in fact provided with sufficient material on which to make a proper judgment on the article 8 rights of the appellant and his children [41]. All the evidence on this issue leads unmistakeably to the conclusion that the appellant did not enjoy any relationship with either of his children and they led lives which were wholly untouched by the circumstance that he was their father. While the possibility of such a relationship developing was a factor to be considered, in this case the material available to the Secretary of State could admit of no conclusion other than it was unlikely in the extreme. The lately produced information that the mother of his son might re consider contact between them partakes of a last throw of a desperate dice [42]. The Secretary of State was therefore not obliged to make yet further inquiries in relation to the appellant and his children beyond those which had already taken place [44]. Lady Hale adds that children must be recognised as rights holders on their own account and not just as adjuncts to other peoples rights [47]. But that does not mean that their rights are inevitably a passport to another persons rights. The problem in this case is that it is the appellant who is treating the children as a passport to his own rights, rather than as rights holders in their own right. His daughter is now 19 and has had no contact with him since she was five [48]. Without a very good reason to the contrary, the Secretary of State is entitled to treat the orders of the family courts as reflecting what is indeed in the best interests of the children concerned. The idea that the Secretary of State should make her own investigation of matters which have already been investigated by the family courts is not only unrealistic, but would also create uncertainty and anxiety for the children. Of course it is good for children, especially children of mixed ethnicity, to have a relationship with both of their parents. But it also good for them to have peace and stability. The daughter is not prevented from establishing a relationship with her father by him living in Tunisia [49]. There was no credible evidence that the appellant had sought contact with his son and nothing to suggest that the appellant has been making a meaningful contribution to his life. He too requires peace and stability and can establish a relationship with his father in future should he wish to do so [50]. There is nothing at all to suggest that the best interests of these children require that their father should remain in the United Kingdom. Of course there will be cases where fuller inquiries are warranted or where the best interests of children do outweigh the public interest in deportation or removal, but this is emphatically not one of them [51].
This appeal relates to disputes which have arisen within a Sikh sect associated with three Gurdwaras (Sikh temples) in Bradford, Birmingham and High Wycombe. It raises two questions concerning the trusts on which the Gurdwaras are held. The questions are (i) the extent to which it is open to trustees to alter, or restrict, the terms of the trusts upon which they hold property, and (ii) the extent to which the court can and should refuse to determine issues of religion or religious belief in legal proceedings. In April 1987, fourteen men attended a meeting at which they decided to establish a Gurdwara under the guardianship of His Holiness Brahamgiani, revered 108 Sant Maharaj Baba Gian Sing Ji of Nirmal Kitia Johal. His Holiness was the then holder of the office of Holy Saint (the First Holy Saint), the religious head of the abode of saints at Nirmal Kutia in the Indian village of Johal. The next month a further meeting decided that this Gurdwara, which was to be similar to a Gurdwara which had been acquired in Bradford in 1982, be established under the Supreme Authority of the First Holy Saint. In September 1987 the First Holy Saint approved a property at Oldbury, Birmingham (the Birmingham Gurdwara), which was purchased with a combination of donations from devotees and loans. The First Holy Saint gave the responsibility of managing the Birmingham Gurdwara to the first, second and third respondents (the original trustees), to whom the Birmingham Gurdwara was then transferred. In January 1991 the original trustees executed a Deed of Trust (the 1991 Deed), in which they declared themselves to be the trustees of a religious organisation preaching and practicing the Sikh faith and following the teachings of the First Holy Saint (the Society). Clause 5 of the 1991 Deed (clause 5) empowered the Saint or his successor to remove the Birmingham trustees and appoint new trustees. A month later the constitution of the Society was signed, Clause 10 of which stated that only the First Holy Saint or his successor could make changes to the Societys management committee. In September 1993, a property was acquired at High Wycombe (the Wycombe Gurdwara) and transferred to the sixth and eight appellants and the first and sixth respondents, who were declared to hold the property in accordance with the Societys constitution. In November 2001, the First Holy Saint died and was succeeded by Sant Harbhajan Ji, who died a few months later in March 2002. In July 2003, at a joint meeting of the management committees of the three Gurdwaras, Sant Jeet Singh was recognised as the Third Holy Saint. Following the respondents refusal to execute a new trust deed, Sant Jeet Singh purported to remove them as trustees and replace them with the second eighth appellants. The appellants issued proceedings in the High Court seeking various heads of relief, including removal of the first, second, third and fourth respondents as Birmingham trustees and the removal of the fifth and sixth respondents as Wycombe trustees. The respondents sought to strike out the claim on the ground that it was unjusticiable. Judge Cooke dismissed the application, but the Court of Appeal allowed the respondents appeal, holding that the issue turned on religious beliefs which were not justiciable by the English courts. The appellants now appeal to the Supreme Court. The Supreme Court unanimously allows the appeal. The judgment is given by Lord Neuberger, Lord Sumption and Lord Hodge, with whom Lord Mance and Lord Clarke agree. The issues should all go to trial. Depending on the facts, the powers of the respondents as trustees may have extended to agreeing a provision such as clause 5, and in any event they may not be entitled to challenge its validity. Further, while courts do not adjudicate on the truths of religious beliefs, the courts have jurisdiction to determine disputes over the ownership, possession and control of property held on trusts for religious purposes. During argument four issues emerged as likely to be in dispute: 1) Whether, as the appellants contend, clause 5 is valid insofar as it accords the power to appoint and dismiss trustees on persons other than the First Holy Saint; 2) If the appellants are right on the first issue, whether the reference to the successor of the First Holy Saint in clause 5 is to be read as limited to Sant Harbhajan Ji, the immediate successor to the First Holy Saint, or whether it extended to subsequent successors; 3) If the appellants are right on the first and second issues, whether Sant Jeet Singh is indeed successor to the First Holy Saint; and 4) Whether Sant Jeet Singh has departed from the tenets of mainstream Sikhism and is on character grounds unfit to be the successor [19]. The first issue: was clause 5 of the 1991 Deed invalid? In Attorney General v Mathieson [1907] 2 Ch 383, the Court of Appeal held that where a charitable trust is initially created by donors in general or vague terms, it is open to the trustee to execute a more specific deed which limits the terms of the trust, provided it does not conflict with the terms on which the donors made their donations [26]. Where the principle in Mathieson applies, it would appear that trustees must have the power to include new provisions in the trust deed which they would not normally have the power to impose in the case of a fully constituted trust [33]. It is at least arguable that, where the terms of a trust are so sparse that the trustees have implied authority on behalf of the donors to declare the trusts to which the sums contributed are to be subject, that authority extends to including a provision such as clause 5. It would not be right to resolve this issue at an interlocutory stage for a number of reasons, including the fact that the issue has not been fully pleaded, the parties arguments have changed as the proceedings progressed, the various points have not been fully considered in the courts below, and the resolution of this issue is very likely to be fact sensitive [33 34]. The second issue: the meaning of successor On the face of the 1991 Deed, it appears that, as a matter of language, his successor could be limited to the immediate next Holy Saint, or could extend to each successive Holy Saint. It would not be right to resolve this second issue at this interlocutory stage for much the same reasons given in relation to the first issue [36]. The third and fourth issues: non justiciability generally The term non justiciability refers to a case where an issue is inherently unsuitable for judicial determination by reason only of its subject matter. Such cases generally fall into one of two categories. The first category comprises cases where the issue in question is beyond the constitutional competence assigned to the courts. Once the forbidden area is identified, the court may not adjudicate on the matters within it, even if it is necessary to do so in order to decide some other issue which is itself justiciable. A paradigm case is the non justiciability of proceedings in Parliament [41 42]. The second category comprises cases based neither on private legal rights or obligations, nor on reviewable matters of public law. These issues are non justiciable if the court were asked to decide them in the abstract; however, such issues must nevertheless be resolved if their resolution is necessary in order to decide some other issue which is in itself justiciable [43]. The third and fourth issues: religious doctrine The courts do not normally adjudicate on the truths of religious beliefs or on the validity of particular rites. But where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective assessment [45]. The courts have jurisdiction to determine dispute over the ownership, possession and control of property held on trusts for religious purposes. Where people set up a trust to govern the purposes for which property is to be acquired and held, they are performing a juridical act which creates interests that the civil law will protect [49].
The appellant suffers from a personality disorder and chronic paranoid delusional disorder. He has a history of admission to psychiatric hospitals. In 2006 he was convicted of arson and burglary. In the light of his mental disorder, he was made the subject of a hospital order under the Mental Health Act 1983 (the Act), which authorised his admission to and detention in a secure hospital, and a restriction order under the Act, which vested the power to discharge him in the respondent (the Minister) or the First tier Tribunal (Health, Education and Social Care Chamber) (the Tribunal). The appellant thereby became a restricted patient under the Act, and was detained in medium secure hospitals. In April 2012 the Tribunal directed that the appellant should be conditionally discharged from hospital and approved a plan that he should move to a registered care home subject to conditions. The appellant took up residence at a care home. On 19 July 2012 the carers responsible for the appellant invited the Minister to consider recalling the appellant to hospital. This was for a number of reasons, including that the appellants mental health had deteriorated, that he was likely to abscond, and that he was likely to breach the conditions of his discharge. The Minister immediately issued a warrant for the appellants recall and the warrant was executed on 19 July 2012. As required by the Act, the Minister referred the appellants case to the Tribunal promptly on 20 July 2012. The warrant set out no reasons for the appellants recall. When the appellant was informed that he was being recalled, he was told only that it was because his mental health had deteriorated. When the appellant was taken into hospital, the staff were unable to explain the reasons for his recall. On 24 July 2012 the Minister wrote a letter to the hospital which contained a number of errors, including the assertion that the recall warrant had not been executed, and the instruction that the appellant should be informed of the reasons for his recall within 72 hours of admission (even though that time limit had already expired). The letter also failed to state any reasons for the appellants recall. On 3 August 2012 (15 days after the appellants recall), he was provided orally with a fuller, adequate explanation for the recall, but was not provided with a written explanation. The appellant challenged the lawfulness of the decision to recall him. His application was dismissed at first instance. Before the Court of Appeal, his primary case was that there was an unlawful failure to explain the reasons for his recall and that (a) that failure affected the legality of his detention, or alternatively (b) that it generated a right to a declaration and damages. The Court of Appeal dismissed his appeal, and the appellant appealed to the Supreme Court. The Supreme Court unanimously dismisses the appellants appeal. Lord Wilson (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Toulson agree) gives the leading judgment. Lord Reed gives a short concurring judgment. The Department of Health has issued guidelines on the recall of patients to hospital, which set out a three stage procedure for the communication of reasons (the Policy) [16]. The Minister concedes that the second and third stages of the Policy were not implemented: namely, an adequate explanation was not provided to the appellant within three days of his recall (but only after 15 days), and no explanation in writing was provided within three days (but only months later in the context of these proceedings). The Minister further concedes that this means there has been a breach of the appellants common law right to have the Policy properly applied, and his right under Article 5(2) of the European Convention on Human Rights (ECHR) to be informed promptly of the reasons for his recall [17 21]. Legal sufficiency of the Ministers explanation The explanation provided to the appellant at the time of his recall (i.e. that it was because of his deteriorating mental health) satisfied the first stage of the Policy. It also complied with the Ministers common law duty to provide reasons [24 25]. As for the ECHR, Article 5(2) does not in this respect extend beyond the demands of the common law and, accordingly, there is no violation of that article [26 32]. The Court of Appeal was therefore correct to find that the Ministers explanation at that time was legally sufficient, and it is unnecessary to consider the effect of an insufficient explanation [32]. Effect of the Ministers conceded breaches on the legality of detention The appellant argued that the Ministers conceded breaches rendered his detention between the third and 15th days following his recall unlawful. As to this, there is no link, let alone a direct link (as is required following R (Lumba) and R (Kambadzi) [34 35]) between the Ministers wrongful failure for 12 days to provide the appellant with an adequate explanation for his recall, and the lawfulness of his detention during that 12 day period [39]. Further, the consequences of the appellants argument would be of concern in other similar cases, given the need to detain restricted patients under the Act in appropriate circumstances [40]. The Court of Appeal was therefore right to conclude that the conceded breaches did not render the detention unlawful [41]. Damages and declaration The appellant is not entitled to damages for the breach of his common law right to receive an adequate explanation for his recall within the time set out by the Policy. The breach does not amount to a tort and there is nothing to suggest that damages would have been available in an ordinary action against the Minister [43]. The conclusion is the same in relation to the violation of Article 5(2) ECHR; the appellant has failed to establish that the effects of the breach were sufficiently grave [46]. As for a formal declaration, it would not add anything to the recording of the Ministers concessions in the Courts judgment [46]. Lord Reed adds some observations in relation to the consequences at common law of the Ministers failure to comply with the Policy [48 53].
In Cadder v HM Advocate [2010] UKSC 43, the Supreme Court held, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421, that the Crowns reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee at a police station was a violation of his rights under Article 6(3)(c), read with Article 6(1) of the European Convention on Human Rights. The issues in these cases are whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applies only to questioning which takes place when the person has been taken into police custody; and, if the rule applies at some earlier stage, from what moment does it apply. The accused in the first case, John Paul Ambrose, was prosecuted on a charge of contravening section 5(1)(b) of the Road Traffic Act 1988 as being in charge of a motor vehicle while over the alcohol limit. He was questioned by two police officers by the roadside, who cautioned him but did not give him any specification about the offence he was suspected of having committed. In response to their questions, he confirmed that he was in possession of the car keys, and that he might be intending to drive the car. Breath tests indicated that he was substantially over the prescribed limit. In his trial the Crown led evidence of the questions and answers at the roadside. In M, the accused was charged with assault to severe injury, permanent disfigurement and permanent impairment. A few days after the incident, the police visited him at his home, cautioned him, and asked him a number of questions, in response to which he confirmed his attendance at the locus on the night in question and his involvement in the fight. He was detained the following day, and questioned further while he was in custody. At trial, he objected to the Crowns reliance upon the admissions he had made in his home, on the basis that he had not had access to legal advice prior to interview. In G, the accused was indicted with offences including the possession of controlled drugs under the Misuse of Drugs Act 1971 and possession of prohibited firearms and ammunition under the Firearms Act 1968. The police had obtained a warrant to search the accuseds flat. They forced entry and found him there. He struggled, and was handcuffed and cautioned. He admitted to having drugs in his pocket, and responded to a number of questions about items found in the flat. He was subsequently arrested and taken to a police station where he answered further questions. He objected to the Crowns reliance at trial on the statements he made during the course of the search of the flat. In each of the three cases, the Appeal Court of the High Court of Justiciary referred to this Court the question whether the act of the Lord Advocate in leading and relying on the evidence in question would be incompatible with the appellants rights under Article 6(1) and (3)(c) of the European Convention on Human Rights. The Supreme Court, by a majority of 4 to 1, finds that, in the cases of Ambrose and M, the act of the Lord Advocate in leading and relying at the trial on the evidence that was obtained from them in response to police questioning without having had access to legal advice was not incompatible with the Article 6(1) and (3)(c) right; and in the case of G that it was incompatible. In Ambrose and M, the question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for decision by the Appeal Court and Sheriff Court respectively. Lord Hope gives the leading judgment. Lord Kerr gives a separate dissenting judgment finding in all three cases that the evidence would be inadmissible. In each of these three cases, the circumstances differ from those before the Supreme Court in Cadder and before the Grand Chamber in Salduz, in that the evidence in question was obtained through police questioning before the individuals were detained at a police station. The Supreme Court notes, firstly, that the jurisdiction of this court is limited to a consideration of the devolution issue which is raised by each of these references, and does not extend to ruling on how the circumstances referred to in each case would fall to be dealt with under domestic law. Secondly, it notes that a decision by this court that there is a rule that a person who is suspected of an offence but is not yet in custody has a right of access to a lawyer before being questioned by the police would have far reaching consequences for the investigation of crime by the authorities. Therefore, if Strasbourg has not yet spoken clearly on this issue, the court would be wise to wait until it has done so [14 15]. The duty of the domestic court in interpreting the Convention is to keep pace with the Strasbourg case law as it evolves over time. There is no obligation upon domestic courts to do more than that (R (Ullah) v Special Adjudicator [2004] UKHL 26, para 20 per Lord Bingham of Cornhill) [17]. The courts task in this case is to identify where the Strasbourg court stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies [20]. In domestic law, where an individual has not yet been detained under section 14 of the Criminal Procedure (Scotland) Act 1995, the test for the admissibility of answers given to questions put by police is whether or not there was unfairness on the part of the police. The fact that the person did not have access to legal advice when being questioned is a circumstance to which the court may have regard in applying the test of fairness, but it carries no more weight than that. There is no rule in domestic law that provides that police questioning of a person without access to legal advice who is suspected of an offence but is not in police custody must always be regarded as unfair. The question is whether a rule to that effect is to be clearly found in the jurisprudence of the Strasbourg court [25]. The Grand Chamber in Salduz had in mind the need to protect an accused against abusive coercion while in custody. The judgment appears to have been concerned only with establishing a rule that there was a right of access to a lawyer where the person being interrogated was in police custody [33]. That assessment is supported by subsequent Strasbourg case law, in particular Zaichenko v Russia (Application no.39660/02), the only case to date in which the complaint was of lack of legal assistance during police questioning when the applicant was not in custody [46]. If the Salduz judgment were to apply to statements made by a person in response to police questioning before being taken into custody, the court would have had to have said so expressly. It did not do so [35]. The privilege against self incrimination is not an absolute right (Murray v United Kingdom (1996) 22 EHRR 29, para 47). It is primarily concerned with respecting the will of the person to remain silent (Saunders v United Kingdom (1996) 23 EHRR 313, para 68), and a person is free to confess if he is willing to do so. Police custody or its equivalent creates a need for protection of the accused against abusive coercion. The same is not the case for questioning at the locus or in a persons home [54]. In principle, the line as to when access to legal advice must be provided before the person is questioned should be drawn as from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed [55]. The correct starting point when considering whether the persons Convention rights have been breached is to identify the moment at which he is charged for the purposes of Article 6(1); that is whether his situation is substantially affected (Deweer v Belgium (1980) 2 EHRR 439, para 46; Eckle v Germany (1982) 5 EHRR 1, para 73). That will be the case as soon as the suspicion against him is being seriously investigated and the prosecution case compiled [62]. The fact that a person who has become a suspect and is not in custody is questioned without access to legal advice will be a relevant factor in the assessment whether the accused was deprived of a fair hearing, but it will be no more than that. In Ambrose and M, the question is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning, conducted under common law at the roadside or at the accuseds home, without the accused having had access to legal advice, was incompatible with Article 6(1) and (3)(c). This is answered in the negative. Ambrose was charged for the purposes of Article 6 when he was cautioned. Suspicion that he was committing an offence fell on him as soon as he told the police that the keys were in his pocket [67]. M was charged when he was cautioned by the police officer at his home [69]. But it would be to go further than Strasbourg has gone to hold that the appellants are entitled to a finding that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being subjected to questioning at the roadside [68 & 70]. The question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for the Appeal Court and Sheriff Court respectively. In G, the question whether it is incompatible with his Convention rights for the Lord Advocate to lead evidence of his statements made during the course of the search is answered in the affirmative. He was charged for the purposes of Article 6 by the time the police began their search. The difference with this case was that there was a significant curtailment of Gs freedom of action. He was detained and had been handcuffed, and was, in effect, in police custody from that moment onwards. The circumstances were, therefore, sufficiently coercive for the incriminating answers that he gave to the questions that were put to him without access to legal advice to be inadmissible [71]. The same result need not, however, follow in every case where questions are put during a police search to a person who is to be take to have been charged for the purposes of Article 6; that, again, would be going further than Strasbourg has gone [72]. Lord Kerr would have found the evidence in question to be inadmissible in all three cases. It is not open to courts of this country to refrain from recognising a claim to a Convention right simply because Strasbourg has not spoken clearly on the matter [128]. In practice, it is inevitable that many claims to Convention rights will have to be determined by the UK courts without the benefit of unequivocal jurisprudence from Strasbourg. It is the duty of every domestic court to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view [129]. As regards the right of access to a lawyer, the selection of the moment of being taken into custody as the first occasion on which legal representation becomes necessary is both arbitrary and illogical. The judgment in Salduz indicates that the need to have a lawyer is not to be determined on a geographical or temporal basis but according to the significance of what is taking place when the admissions in question are made [136]. The essential question is: when the questioning is taking place, is the suspect in a position where the advice of a lawyer is essential if a fair trial is to occur. If he is liable to incriminate himself at that time, a lawyers presence is required [145]. The judgment in Zaichenko is not clear, but does not indicate that formal arrest and interrogation in custody are essential prerequisites to the invocation of the right to legal assistance [158].
The issue in this appeal is when the notice period begins to run, if an employee is dismissed on written notice posted to his home address. If the answer is not specified in the contract of employment, is it (i) when the letter would have been delivered in the ordinary course of post; (ii) when it was in fact delivered to that address; or (iii) when the letter comes to the attention of the employee and he has either read it or had a reasonable opportunity to do so? The respondent, Mrs Haywood, was dismissed by reason of redundancy by her employer, the appellant NHS Trust (the Trust). Her contract of employment provided for termination on a minimum period of notice of 12 weeks but not how such notice should be given. On 20 April 2011, the Trust sent a letter giving written notice of termination by recorded delivery to Mrs Haywoods home address. The Trust was aware that she was away on holiday. The letter was collected from the local sorting office by her father in law on 26 April 2011 and left by him in her house that day. She returned from holiday abroad on 27 April 2011 and read the letter. On the unusual facts of this case, the date on which the 12 week notice period started to run was highly material. If it commenced on 27 April 2011, it expired on 20 July 2011, the date of Mrs Haywoods 50th birthday, and Mrs Haywood would be entitled to claim a non actuarially reduced early retirement pension. The High Court and the Court of Appeal (by a majority) upheld Mrs Haywoods case that the notice period only commenced on 27 April 2011. The Supreme Court by a majority of three to two (Lord Lloyd Jones and Lord Briggs dissenting) dismisses the Trusts appeal. Lady Hale, with whom Lord Wilson and Lady Black agree, gives the main judgment and Lady Black adds a further analysis of the case law. The dissenting judgment is given by Lord Briggs, with whom Lord Lloyd Jones agrees. In the absence of an express contractual provision, the court had to determine the implied contractual term as to when a notice takes effect. The Trust argued that there was a common law rule, principally derived from landlord and tenant cases, which provided that notice was given when the letter was delivered to its address. Mrs Haywood relied on the approach of the Employment Appeal Tribunal (EAT) in employment cases to support her case that notice only took effect when it had actually been received by the employee and the employee had either read or had a reasonable opportunity of reading it [12]. Having reviewed the cases relied on by the parties, the majority held that the approach which had been consistently taken by the EAT was correct because: The common law rule in non employment cases was not as clear and universal as suggested. Receipt of the notice was always required, and arguably by a person authorised to receive it. Even after a statutory presumption of receipt at the address was introduced, this was rebuttable. The EAT was an expert tribunal familiar with employment practices, and with the general merits in employment cases. Mrs Haywoods contract with the Trust was concluded when the EAT cases were thought to represent the general law. There was no reason to suppose that this approach had caused any real difficulties in practice. An employer could either make express alternative provision in the contract or ensure notice of termination was received in sufficient time to allow the employment to terminate on a specified day. It was important for both employer and employee, even in dismissal on notice cases, to know whether and when the employment had come to an end. The rule should be the same as for summary dismissal cases [39]. Lady Black, agreeing with this conclusion, reviewed the common law cases in further detail to support the finding that that these cases did not have the effect contended for by the Trust [41 75]. Insofar as any clear principle emerged, it revolved around delivery to the recipients agent, who might be a household servant, professional agent or family member, who would be expected to take in communications for the intended recipient as part of their role [73]. Lord Briggs, dissenting, would have found that the common law cases had long established a rule embedding an implied term into contracts of employment determinable on notice [78]. Such contracts were only a sub species of relationship contracts [79]. The rule for relationship contracts was that written notice of termination was given when the document containing it was duly delivered by hand or post to the address of the intended recipient, regardless of whether either the intended recipient or his agent was there to receive it [81, 100]. The rule had a sensible and even handed policy objective behind it, creating certainty for both parties and representing a fair allocation of risk [118 121].
Between October 1952 and September 1958 the Respondent [the MoD] carried out experimental atmospheric explosions of 21 thermonuclear devices in the South Pacific, involving 22,000 soldiers, sailors and airmen [90]. From these servicemen are drawn the majority of the 1011 claimants in this case, most of whom caused their claims to be issued on 23 December 2004 and some of whom did so later [the Veterans]. Some of the claims are brought by the personal representatives of veterans who have sadly died [90]. The Veterans allege that they were exposed to fallout radiation from the nuclear tests and that this exposure has caused illness, disability or death [90]; both exposure and causation are denied by the MoD. The claims were made subject to a Group Litigation Order because they gave rise to common or related issues of fact or law [15]. There is an issue as to whether many of the claims are time barred under the provisions of the Limitation Act 1980, section 11(4) of which provides that an action shall not be brought after the expiration of three years from (a) the date on which the cause of action accrued; or (b) the date of knowledge (if later) of the person injured [2]. The group and the MoD each selected five lead claimants for the trial of the limitation issue [91]. The Veterans alleged that they did not have the requisite knowledge within the meaning of the Limitation Act 1980 until 29 June 2007, some two and a half years after most of them caused their claims to be issued, when a report by Dr Rowland [the Rowland Report] demonstrated an abnormal incidence of chromosomal changes in blood samples of 50 New Zealand veterans, who had served on ships that were no closer to the tests than had been most, if not all, of the Veterans, thus providing objective evidence of exposure to low dose fallout radiation [97]. The Veterans accept that there is no credible evidence to prove that this exposure caused their injuries [25]. The MoD, whilst denying both exposure and that such low dose exposure could cause injury, contended that the Veterans knew the facts alleged more than three years before issuing their claims. At first instance, five lead claimants were found to have issued within the limitation period and Foskett J exercised his discretion under section 33 of the Limitation Act 1980 to allow the remaining five cases to proceed [104]. The Court of Appeal held that nine of the claimants had acquired knowledge more than three years before proceedings were commenced and that Foskett J had erred in the exercise of his discretion under section 33, so that none of the nine claims should be permitted to proceed [105]. The nine claimants appeal to the Supreme Court. This appeal raises three issues: (i) how is knowledge to be defined for the purposes of section 11(4) of the Limitation Act 1980; (ii) is it possible for a claimant to commence proceedings before having acquired the knowledge that would normally cause time to run, and if so what is the proper approach of the court to such proceedings; and (iii) should the court exercise its discretion under section 33 of the Limitation Act 1980 to allow the claims to proceed in the event that they had not been commenced within the limitation period? The Supreme Court dismisses the appeal by a 4 3 majority; Lord Phillips, Lady Hale and Lord Kerr dissenting. The Limitation Act 1980 [the 1980 Act] provides that the limitation period is to be triggered by a claimants actual or constructive knowledge of certain facts [111]. Two questions arise in respect of knowledge: firstly, what is it that the claimant has to know at the date of knowledge? Secondly what state of mind, assessed subjectively or objectively or a mixture of the two, amounts to knowledge for this purpose [30]? What the claimant must know depends on the interpretation of section 14(1) of the 1980 Act, in particular section 14(1)(b) which provides that one of the facts is that the injury was attributable in whole or in part to the act or omission which is alleged to constitute negligence, nuisance, or breach of duty [30]. Attributable refers to causation and means capable of being attributed or ascribed to [34], and has been interpreted as directed to a real possibility of a causal link [35]. It is a legal impossibility for a claimant to lack knowledge of attributability for the purposes of section 14(1) after issuing his claim [3, 70]. The Claimant must verify his claim form by a statement that he believes that the facts stated in it are true, which can be regarded as an explicit recognition that he has knowledge for the purpose of section 14(1) [3]; further, the inquiry mandated by section 14(1) is retrospective [4] and is predicated on the assumption that there is a valid cause of action [2]. A claimant is likely to have developed the requisite state of mind to amount to knowledge of the facts specified in section 14(1) when he first came reasonably to believe them [11, 50], that is to say that he held a belief which is more than a mere suspicion, but rather is held with sufficient confidence to justify that he should reasonably begin an investigation into whether he has a valid claim and, if so, how that claim can be established in court [12], and which also carries a degree of substance rather than being the product of caprice [11]. The test is objective, without regard to a claimants personal characteristics, which can be taken into account at the later stage of exercising discretion under section 33 of the 1980 Act [47]. A distinction is to be drawn between knowledge of the essence of a claim and the evidence necessary to prove it to the requisite legal standard [58]. The facts by reference to which limitation are to be assessed are those pleaded or later asserted, and the question is not whether those facts give rise to a good claim in law [86]. Once the requisite knowledge has arisen, evidential difficulties confer no right to a further, open ended, extension of the limitation period [25]. A claimant will not always have acquired knowledge by the date when he first consults an expert [13]. Section 14(3) recognises that some facts may be ascertainable only with the help of experts, so the court will have regard to the confidence and the substance of a claimants belief prior to consulting an expert and the effect on that belief of receipt of the experts report [13]. An expert may assist a claimant in acquiring knowledge of the facts required by section 14 or he may provide evidence to help him substantiate the claim [14]. Application of this test to the facts of the nine lead cases [16 24] drives a conclusion that, prior to three years before issue, each reasonably believed that their injuries were capable of being attributed to the nuclear tests, particularly in light of their many private and public statements about the cause of their conditions, the nation wide campaign for compensation, applications for war pensions and applications to the ECtHR [25], as well as the fact that it was common knowledge from at least the 1980s that exposure to fallout radiation could cause leukaemia, many other forms of cancer, infertility and other serious injuries [63]. The difficulty for the Veterans had been to produce cogent evidence, whether from their individual medical histories or from epidemiological material, that the dose of radiation was sufficiently high to establish a causative link with their injuries [64]. The Rowland Report was evidential, rather than assisting the Veterans in acquiring knowledge of the essence of their claim [64]. The Court of Appeal correctly declined to exercise its discretionary power under section 33 of the 1980 Act to disapply section 11 [26]. Having weighed all the other relevant factors [26] and in light of its unusual advantage in the mass of detailed material summarised by the judge [27], that Court held that the Veterans had very great difficulties in establishing causation. The fact is that the Veterans claims have no real prospect of success and it would be absurd to disapply section 11, only for their claim inevitably to be struck out [27]. The minority considers, however, that knowledge and belief are different concepts [174], and that a claimants subjective belief is not a sensible basis for deciding whether the claim is time barred [168]. A claimant can be said to have knowledge only when he has a reasonable belief that is founded on known fact [141] or objective fact [170]. It is even possible for a claimant to lack knowledge of attributability at the time when he issues his claim so that the limitation period has yet to begin to run [146]. At the time when the Veterans issued proceedings, there were no known facts capable of supporting a belief that their injuries were attributable to exposure to ionising radiation [139], thus none of the claims is time barred. Lord Phillips would have held that the initiation of the group action did not constitute an abuse of process and it would not have been right to strike it out on that basis [153], and, although the Veterans do not have a reasonable prospect of success, the Court of Appeal was correct not to grant the MoD summary judgment in the absence of a formal application [158]. Lord Kerr agrees that it was correct not to strike out proceedings and to refuse to grant summary judgment [212, 214].
The issue in the appeal is whether a District Judge qualifies as a worker or a person in Crown employment for the purpose of the protection given to whistle blowers under Part IVA of the Employment Rights Act 1996 (the 1996 Act). If not, is this discrimination against her in the enjoyment of her right to freedom of expression, protected by article 14 taken with article 10 of the European Convention on Human Rights (ECHR)? The appellant was appointed a District Judge by the Lord Chancellor with effect from 6 February 2006. The letter offering her appointment specified the duration, salary, pension and conditions of employment, including as to sitting days, sick pay, maternity leave and conduct. By an Instrument of Appointment the Lord Chancellor approved her to sit at county courts on the Wales and Chester circuit. Major cost cutting reforms took place after 2010. The appellant raised a number of concerns relating to the cuts, in particular the lack of appropriate and secure court room accommodation, her severely increased workload and administrative failures, initially with the local leadership judges and senior court managers, and eventually in a formal grievance. She claims that the handling of her complaints led to a severe degradation in her health, resulting in psychiatric injury and disability. In February 2015 she made a two part claim in the Employment Tribunal, both of which depended on her being a worker within the meaning of s 230(3) of the 1996 Act. Her claim for disability discrimination under the Equality Act 2010 is proceeding, as it is accepted that she is a worker for the purpose of European Union law, from which this claim is derived. Her claim under Part IVA of the 1996 Act is not so derived, and the Employment Tribunal determined as a preliminary issue that she was not a worker under domestic law for the purpose of the whistle blowing provisions. It accepted that she therefore had no protection against the infringement of her right to freedom of expression under article 10 ECHR, but that it was not possible to give effect to s 230(3) so as to give her that protection. Her appeals to the Employment Appeal Tribunal and to the Court of Appeal were dismissed. The Supreme Court unanimously allows the appeal and remits the case to the Employment Tribunal on the basis that the appellant is entitled to claim the protection of Part IVA of the 1996 Act. Lady Hale gives the judgment. Worker under domestic law The appellant argued that she is a limb (b) worker under the definition in s 230(3) of the 1996 Act: namely that she works under a contract whereby she undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business she is undertaking [2 3]. The issue is whether the appellants work is performed pursuant to a contract with the recipient of that work or services, or pursuant to some different legal arrangement. Judges hold a statutory office, and office holders do not necessarily hold office pursuant to a contract [12]. It depends on the intention of the parties, which is reflected in the manner of engagement, the source and character of the rules governing service and the overall context [16]. In the appellants case, the essential components of the relationship are derived from statute and not a matter for negotiation; it is difficult to identify her employer; and the separation of powers is a factor against a contract between a Minister of the Crown and a member of the judiciary. Taken together, these factors do not suggest a contractual relationship [17 21]. Nor are judges in Crown employment. They are not civil servants or the equivalent of civil servants. They do not work under or for the purposes of the functions of the Lord Chief Justice, but for the administration of justice in accordance with their oaths of office [22 25]. Human rights The imposition of detriments, such as the bullying, victimisation and failure to take complaints seriously which the appellant alleges, would be an interference with her right to freedom of speech under article 10 ECHR [26]. A claim under the Human Rights Act 1998 (the HRA) would not enable the appellant to seek the wider relief that a worker could under Part IVA of the 1996 Act [27, 30]. The failure to extend the Part IVA protections to judicial office holders is a violation of the appellants right under article 14 not to be discriminated against in her enjoyment of the rights under the ECHR: (i) the facts of her case are within the ambit of article 10; (ii) she has been treated less favourably than other employees and workers who make responsible public interest disclosures; (iii) her occupational classification is clearly a status within the meaning of article 14; and (iv) exclusion of judges is not a proportionate means of achieving a legitimate aim. There is no evidence that either the executive or Parliament addressed their minds to the exclusion of the judiciary from the protection of Part IVA and no legitimate aim has been put forward [28 37]. The remedy for the incompatibility of the exclusion of the judiciary from the protection of Part IVA of the 1996 Act with the rights under the ECHR is found in the obligation on the courts in s 3 of the HRA to read and give effect to primary legislation in a way which is compatible with those rights. It has been established that it is possible to interpret the definition of a limb (b) worker to include judicial office holders when required to do so by EU law, and it would not go against the grain of the 1996 Act to do so in respect of the protections of Part IVA. This interpretation should also apply to the equivalent provisions in the Employment Rights (Northern Ireland) Order 1996 [39 45]. Accordingly the appeal is allowed and the case is remitted to the Employment Tribunal on the basis that the appellant is entitled to claim the protection of Part IVA of the 1996 Act [46].
The husband and wife entered into a consent order on 28 July 2010. Part of the order provided that the husband should transfer to the wife his legal and beneficial interest in the matrimonial home subject to the mortgage so that the wife could continue to live there with the two children of the family. In return the wife undertook at para 4.3 of the recitals to discharge all mortgage payments, to indemnify the husband against any liability under it and to use her best endeavours to release him from the covenants under it. Then, crucially, she undertook at para 4.4 of the recitals that, if the husband had not been released from his mortgage covenants by 30 September 2012, she would secure his release by placing the home on the market for sale and proceeding to sell it. On 18 November 2011 the wife, who had (and still has) duly discharged the mortgage payments, issued an application to vary her undertaking at para 4.4. She explained that she had not been able to secure the husbands release from his mortgage covenants and would not be able to do so by 30 September 2012. The children were in schools in the vicinity of their home and it would be gravely damaging to their interests for them to have to move home while still at school. In such circumstances she sought a variation of the undertaking at para 4.4, so as to postpone for seven years her obligation to secure the husbands release from his covenants under the mortgage by sale of the home until 15 August 2019, being the date of their sons 18th birthday. The husband argued that the court had no jurisdiction to hear the wifes application and requested that the court rule on that preliminary issue. He argued that the wifes undertaking was equivalent to an order for sale under section 24A of the Matrimonial Causes Act 1973 (the Act). And he relied on the Court of Appeals decision in Omielan v Omielan [1996] 2 FLR 306 that jurisdiction to vary the latter did not exist where it related to the territory of the property adjustment order. When the wifes appeal from an adverse decision below came before the Court of Appeal it held that its jurisdiction to hear the application was a formal jurisdiction which existed only technically; that scope for its exercise was extremely limited indeed; and that there was no basis for its exercise upon the wifes application. The Supreme Court by a majority of 4 to 1 allows the wifes appeal and holds that jurisdiction exists to hear the wifes application. Lord Wilson gives the lead majority judgment, with which Lady Hale, Lord Kerr and Lord Carnwath agree. Lord Hughes gives a dissenting judgment. The description of the application as being to vary the wifes undertaking is confused. The courts power is only to grant or refuse an application for release from the undertaking. Although the courts exercise of its power may result in something which looks like a variation of an undertaking, if it decides to accept a further undertaking, it is the product of a different process of reasoning [5]. The courts below wrongly concluded that they did not have jurisdiction to release the wife from her undertaking. They failed to distinguish between the existence of the courts jurisdiction to release the wife from her undertaking, and the exercise of its jurisdiction [6]. The case law indicates that there is full jurisdiction to hear the wifes application [12]. Further, in circumstances where the undertaking in para 4.4 could have been framed as an order for sale of the property under section 24A of the Act, variable under section 31(2)(f), it would be illogical for the existence and exercise of jurisdiction to grant release from the undertaking to differ from those in relation to the variation of any such order [17 18]. The equivalence of the wifes para 4.4 undertaking with a section 24A order for sale seems clearly to confirm the existence of the courts jurisdiction to hear her application for release from it [19]. Lord Wilson is unable to subscribe to the Court of Appeals determination of the appeal in Omielan by reference to the non existence of jurisdiction rather than a refusal to exercise its jurisdiction. Where Parliament has conferred jurisdiction on a court, there is no scope for a court to say part of it does not exist. The terms of a financial order are often interlinked and therefore it is difficult to apply the concept of different territories to such an order. The demarcation of territories within the order is no proper criterion for identifying the existence of a jurisdiction [27]. Parliament did not in section 31(7) or elsewhere in the Act make a change of circumstances a condition for the exercise of jurisdiction to vary a section 24A(1) order for sale. However, unless there has been a significant change of circumstances since the order was made, grounds for variation of it under section 31 seem hard to conceive [15]. The court remits to HHJ Waller the inquiry into whether the courts jurisdiction to vary the undertaking should be exercised. In light of the equivalence of the wifes undertaking with a section 24A order for sale, his inquiry will be conducted in accordance with section 31(7) of the Act. He will give first consideration to the welfare of the two children; but it is a consideration which may be outweighed by other factors. He will have regard to all relevant circumstances including in particular, whether the wife can establish a significant change of circumstances since her undertaking was given and whether, and if so to what extent, the husband has suffered, and is likely to continue to suffer, prejudice by remaining liable under his mortgage covenants [29]. If the court finds that the husband has suffered, and/or would be likely to suffer, prejudice as a result of delay in selling the home, the court might favour compensating him by asking the wife to make provision for him out of the ultimate net proceeds as a condition of release [30]. Lord Hughes gives a dissenting judgment, not on the existence of the jurisdiction to vary a section 24A order for sale, or its equivalent achieved via an undertaking, but on the principles for its exercise. It must be kept in mind that the section 24A order is ancillary to a capital order and that final capital orders cannot be varied in their substance (whether or not there is a change of circumstances). Lord Hughes states that the acid test should be whether the application is in substance (impermissibly) to vary or alter the final order or whether it is (permissibly) to support it by working out how it should be carried into effect [54]. The application in the present case is one which attempts to vary, not to carry into effect, the originally agreed and court endorsed order and therefore the Court of Appeal was right to hold that it was bound to fail [57]. Lord Hughes would dismiss the appeal [58].
On 25 June 1999 the respondent, Ms Dunhill, was struck by a motorcycle driven by the appellant, Mr Burgin, when crossing the road. She suffered a severe head injury. In May 2002 she issued a claim against Mr Burgin for damages limited to 50,000 for her injuries. On the day of the trial, settlement negotiations took place and Ms Dunhill, after advice from her counsel and solicitor, decided to compromise her claim for 12,500 plus costs, which was embodied in a consent order put before the judge. Ms Dunhill had in fact suffered very serious injuries and this settlement represented a gross undervalue of her claim, if she could establish that Mr Burgin had been negligent. In 2006 she consulted new solicitors. A litigation friend was appointed to act on her behalf, who applied for a declaration that she had not had mental capacity at the time of the settlement and that the consent order should be set aside with directions for the future conduct of the claim. Two preliminary issues arose. The first was the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf. The second was the consequence if legal proceedings were compromised without it being recognised that one of the parties lacked that capacity, so that the requirement in Part 21.10 of the Civil Procedure Rules (CPR) that the compromise must be approved by a court was not complied with. The High Court held that capacity was to be judged by reference to the decisions which Ms Dunhill had actually been required to take in the action as drafted rather than those which she might have been required to take had the action been differently framed. On this basis she did have capacity. The Court of Appeal ruled that she had to have capacity to conduct the more complicated action which ought to have been brought and Ms Dunhill had lacked that capacity. When the case was remitted to the High Court, it held that her lack of capacity rendered the settlement void as it had not been approved by the court as required by CPR 21.10. The Supreme Court gave permission to Mr Burgin to appeal against both findings. The Supreme Court unanimously dismisses the appeals. It holds that, on the test properly to be applied, Ms Dunhill lacked the capacity to commence and conduct proceedings arising out of her claim against Mr Burgin. The consent order must be set aside and the case proceed to trial. Lady Hale gives the only judgment. Test for capacity The general approach of the common law, now enshrined in the Mental Capacity Act 2005, is that capacity is to be judged in relation to the decision or activity generally and not globally. On the issue before the court the question was Ms Dunhills capacity to conduct the proceedings. CPR 21 posits a person with a cause of action who must have the capacity to bring and conduct proceedings in respect of that cause of action. This could not depend on whether that person received good advice, bad advice or no advice at all. The test of capacity to conduct proceedings for the purpose of CPR 21 is the capacity to conduct the claim or the cause of action which the claimant in fact has rather than to conduct the claim as formulated by her lawyers, and on this test it was common ground that Ms Dunhill lacked that capacity [13 18]. The effect of incapacity It followed that Ms Dunhill should have had a litigation friend when the proceedings were begun. Although the court had power to validate steps taken without a litigation friend retrospectively, it was not just to do so in this case in relation to a settlement and consent order made without the external check on its propriety required by CPR 21.10. The consequence was that the settlement was of no effect. The terms of CPR 21 did not enable Mr Burgin to rely on the fact that he had not been on notice of Ms Dunhills incapacity [22]. A settlement of a claim was an established exception to the general position under English law in respect of a contract made by a person who lacks capacity, which is valid unless this fact was or ought to have been known [23 30]. Although there was a need for finality in litigation, and the difficulty of re opening cases such as this so long after the event was recognised, the policy underlying the CPR was clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers [32 33]. Accordingly the consent order must be set aside and the case go for trial [34].
The Town and Country Planning Act 1990 gives a power to local authorities to acquire compulsorily any land in their area if the authority thinks that the acquisition will facilitate the carrying out of development on the land and if it thinks that the development is likely to contribute to the well being of the overall area for which it is responsible. This appeal concerned the proper approach to the exercise of that power in relation to land known as the Raglan Street site which lies immediately to the west of, and just outside, the Wolverhampton Ring Road. Sainsburys Supermarkets Ltd (Sainsburys) owns or controls 86% of this site. Tesco Stores Ltd (Tesco) controls most of the remainder. Sainsburys and Tesco each wished to develop on the land and it was decided to grant outline planning permission to each of them for that purpose. It was clear that, unless the local authority used its compulsory purchase powers in respect of the site, neither of the proposed developments could take place. So Sainsburys and Tesco each sought to persuade the local authority that the power should be exercised in its favour. Tesco controls a site in Wolverhampton City Centre called the Royal Hospital site (RHS). The RHS is in poor condition, and for many years it has been an objective of the local authority to secure the regeneration of the site. Tesco considered that it was not financially viable for it to develop the RHS without subsidy from elsewhere. But in seeking to persuade the local authority that it should exercise the compulsory purchase power in its favour in respect of the Raglan Street site, Tesco promised the local authority (by means of a contractual planning obligation) that it would regenerate the RHS. Tesco explained that promise on the basis that its development at Raglan Street would represent a subsidy at least equal to the loss it would sustain in carrying out the RHS development. The local authority decided that it would make a compulsory purchase order in respect of the part of the Raglan Street site owned by Sainsburys in order to facilitate Tescos proposal. In so doing, it took into account and indeed regarded as decisive in Tescos favour that Tesco had promised to regenerate the RHS. The issue in this appeal was whether it was lawful for the local authority to have done so. The Supreme Court held, by a majority of 4 to 3, that, on the facts of this case, it was unlawful for the local authority to take into account Tescos commitment to regenerate the RHS in resolving to make the compulsory purchase order in respect of the Raglan Street site. The majority judgments: (Lord Walker, Lady Hale, Lord Mance and Lord Collins) Lord Collins (giving the leading judgment on behalf of the majority): Principles derived from cases concerning the matters which may lawfully be taken into account in determining planning applications apply equally to compulsory acquisition for development purposes provided it is recognised that, because of the serious invasion of property rights involved in compulsory acquisition, a strict approach to the application of those principles is required. One of these principles is that it is legitimate for a local authority to take into account off site benefits of a proposed development provided that such benefits are related to or connected with the development itself. In compulsory acquisition, as in planning cases, there must be a real rather than fanciful or remote connection between the off site benefits and the development for which the compulsory acquisition is made (see paragraphs [70] [71]). In the present case, there was only a connection between the proposed development on the Raglan Street site and the benefits from the development of the RHS in the sense that the Council was being tempted to facilitate one development because it wanted another development, or that Tesco was being tempted to undertake one un commercial development in order to obtain the development it wanted (para [72]). The claimed financial connection between the two sites was not such as to amount to a relevant matter, notwithstanding the fact that Tesco was prepared to commit to undertake the regeneration of the RHS by agreement with the local authority (para [75]). Lord Walker (agreeing with Lord Collins, Lady Hale and Lord Mance): A local authority should not be exercising its powers of compulsory purchase in order to make a commercial profit; the dominant aim must be betterment in planning terms (para [82]). In a case such as this where a private interest in land is purchased in favour of another private (i.e. Tescos) interest, the local authority has a direct financial interest in the matter, and a strict approach is called for (para [84]). The reason why, in a case where there is little to choose in planning terms between two rival developers of a site, the local authority must not look to some extraneous benefit which one contender offers, is simply that it is not the right way for a local authority to make a decision as to the exercise of its powers of compulsory purchase, any more than it could choose a new chief executive from a short list of apparently equally well qualified candidates by holding a closed auction for the office (para [87]). Lady Hale (agreeing with Lord Collins, Lord Walker and Lord Mance): Acquiring the whole of the Raglan Street site would facilitate the development of that site. But persuading Tesco to carry out a wholly unrelated development upon another site elsewhere in the city, desirable though that may be for the City and people of Wolverhampton, does nothing to facilitate the development of the Raglan Street site. Rather, it is the other way round (para [93]). Lord Mance (agreeing with Lord Collins, Lord Walker and Lady Hale): A planning authority, when considering a planning application, is only entitled to take into account a planning obligation which the applicant offers if that obligation has some connection with the relevant development, apart from the fact of its offer. There is a useful analogy between the grant of planning permission and the exercise of a power of compulsory purchase under the Town and Country Planning Act 1990, and the considerations admissible in relation to the latter power are no wider than those admissible in relation to the former (para [98]). The minority judgments: (Lord Phillips, Lord Hope, Lord Brown) Lord Phillips: Agreed with Lord Collins and Lord Brown that it was appropriate in this case to draw an analogy with certain decisions relating to the grant of planning permission (para [120]). The effects of those decisions was this: when considering the merits of an application for planning permission for a development it is material for the planning authority to consider the impact on the community and the environment of every aspect of the development and of any benefits that have some relevance. An offer of benefits that have no relation to or connection with the development is not material (para [137]). These principles could properly be applied, by analogy, to a simple case where a local authority is considering whether the public interest justifies the compulsory purchase of land for the purpose of facilitating a development. The development itself must be justified in the public interest and it would be wrong in principle for the local authority to be influenced by the offer by the chosen developer to provide some collateral benefit that has no connection of any kind with the development in question (para [138]). But that analysis did not apply to the present case, in which Sainsburys and Tesco were in competition for the development of the Raglan Street site. The local authority had two decisions to make. The first was whether it should exercise its compulsory purchase powers at all. In taking that first decision the local authority was not entitled to take into account any benefit unconnected to the development proposed. The second was to decide to which of the rivals to sell the land (under a different power in the same Act). In that second decision the local authority was entitled and perhaps bound to have regard to any unconnected benefit offered by the developer (paras [140] and [142]). In this case, the local authority was not, in fact, influenced by the RHS benefit when deciding in principle to use its power of compulsory purchase. The RHS benefit was, however, very material to the decision as to which developer to select, and this in turn determined whose land was to be compulsorily acquired. In these circumstances the RHS benefit was a consideration that was material to the decision that determined simultaneously the developer and the land to be purchased. It therefore could not be said that the decision compulsorily to purchase Sainsburys land was influenced by a consideration that was not material (paras [143] [145]). Lord Hope (agreeing with Lord Phillips): It is plain that the local authority was proceeding on the assumption that, having acquired the land, it would then dispose of it to the preferred developer. The authority was concerned as much with the exercise of the power to dispose of the land as with the exercise of the power to acquire it (para [154]). In this case, the choice as to whose land to acquire was inevitably linked to the choice of the developer to whom the land was to be disposed of when it was acquired. The local authority took those decisions together and was entitled to do so. To hold otherwise would unduly inhibit the exercise of the power of compulsory acquisition in a case such as this, where a site that is in need of development is in divided ownership, the owners are in competition with each other for its development, and there are sound planning reasons for regarding the proposal of one developer as preferable to that of the other (para [158]). Lord Brown: Had an offer such as that made by Tesco to the local authority been made in the planning context it would have been a material consideration in the determination of a planning application because it would have had a sufficient connection with the proposed development which was not de minimis or so minimal as to be immaterial. This was the effect of the planning cases (para [174]). But even if, contrary to that view, the RHS benefit would not have been material in the determination of a planning application, it was nonetheless material in the context of the decisions which the local authority had to take here (para [178] and [180]). The authoritys power of compulsory purchase could not be exercised until the authority had also decided the second question before them: which of the two developers to choose. In reaching that second decision the authority was entitled to take into account the off site benefit, even if it was not connected with the development proposed. It was a material consideration for the purposes of deciding which of the rival developers to prefer and whose land, therefore, should be the subject of compulsory purchase (para [182]).
This appeal concerns whether an English court has jurisdiction to determine the future level of contact between a child and his mother where the child does not habitually reside in an EU Member State. Under article 12.3 of Council Regulation (EC) No 2201/2003 (Brussels II Revised) parties are able to opt in to the jurisdiction of an EU court which would not otherwise have jurisdiction to determine a childs future. This applies where: (a) the child has a substantial connection with that Member State; and (b) the jurisdiction of the courts has been expressly accepted or otherwise in an unequivocal manner by all the parties to the proceedings at the time the court is seised, and the exercise of jurisdiction is in the best interests of the child. In this case the child had been resident in Pakistan since 2004, although both he and his divorced parents are British citizens and his parents live here. Both the High Court and the Court of Appeal held that an English court had no jurisdiction. The mother appealed. The Supreme Court had two issues to decide: firstly, whether article 12 extended to cases where a child lived in a non EU member state; and secondly, if it did, whether the parties in this case had accepted jurisdiction in accordance with the criteria set out in article 12.3(b). The Supreme Court unanimously allows the appeal and declares that the courts of England and Wales have jurisdiction in this case. The Supreme Court holds that article 12 of Brussels II Revised applies to a child who is lawfully resident outside the European Union. In this case it was clear that the criteria of article 12.3 were satisfied and therefore that the parties had opted in to this jurisdiction. Lady Hale gave the leading judgment. There was a difference of opinion between the Justices on the precise meaning of article 12.3(b) but it was not necessary to decide this issue in order to decide the case.(Paragraphs [17], [35], [45]) On the first issue, if parents opt in to the jurisdiction of an EU court under article 12.3, that court can exercise jurisdiction even if the child does not lawfully reside within the territory of a an EU Member State. Lady Hale reached this conclusion using ordinary principles of construction, concluding that nothing in article 12 limits jurisdiction to children who reside in an EU Member State. This was confirmed by the conclusion that the term third State in other parts of the Regulation (notably articles 12.4 and 61) means a state outside the EU. This is supported by the Practice Guide to the Regulation, as well as other sources emanating from the EU. [17] [20] The Pakistan Protocol (referred to by the Court of Appeal), in which the judiciaries of Pakistan and England agreed it will generally be best for jurisdiction to be exercised in the country of the childs habitual residence, was not directly applicable. In any event such an agreement between judges could not affect the proper interpretation of Brussels II Revised. [41] [44] On the second issue, the criteria under article 12.3 were clearly satisfied in this case. Firstly, under 12.3(a), the substantial connection was satisfied by the fact the childs parents are habitually resident in the UK and they and the child are British citizens. [21] Secondly, jurisdiction had been expressly and unequivocally accepted by the parties under 12.3(b), both before and after proceedings commenced. In particular, the father had accepted jurisdiction by undertaking to bring the child back here if required to do so by the Court. [33] [34] Finally, the exercise of jurisdiction was in the best interests of the child given the presumption in article 12.4 that where a child is resident in certain non EU States it will be in his best interests for jurisdiction to be exercised under this article. It was also relevant that the childs guardian in the High Court considered that the childs future was best decided in this country. [37] [38] The Justices expressed different views on the meaning of the words in article 12.3(b) requiring express or unequivocal acceptance by all of the parties to the proceedings at the time the court is seised. Did this mean before, when or after the relevant proceedings were begun? It was also unclear whether these words describe the time at which parties have accepted jurisdiction or, as argued on behalf of the interveners Reunite, describe the parties whose acceptance is required. The Justices do not express a concluded view as it was not necessary to do so in order to decide this appeal. In this case all the parties had given unequivocal acceptance both before and after the proceedings had begun. The diversity of views indicates that the interpretation is not acte clair and if a case arises where the issue has to be decided it may have to be the subject of a reference to the European Court of Justice under articles 68 and 234 of the EC Treaty. (Lady Hale at paragraphs [23] [32]; Lord Collins at [51] [64]; Lord Kerr at [66] [74]; Lord Clarke at [75] [92])
This is a reference of a devolution issue at the request of the Lord Advocate. It is directed to the issue of waiver. The Respondent, B, whose case has not yet gone to trial, has been charged on summary complaint with housebreaking with intent to steal and having in his possession a controlled drug contrary to section 5(2) of the Misuse of Drugs Act 1971. Before the commencement of a police interview, he was offered legal assistance but declined the offer. His waiver of the right to legal assistance took place without his having received advice on the point from a solicitor In advance of the trial, Bs solicitor lodged a Devolution Minute stating that Bs right to a fair trial under Article 6(3)(c) of the European Convention on Human Rights would be breached if the Crown were to lead evidence of his police interview since, it was claimed, access to a solicitor should be automatic when someone has been detained in police custody. The propositions in the Devolution Minute were based on observations of the High Court of Justiciary in Jude v HM Advocate [2011] HCJAC 46, 2011 SLT 722, in which the Lord Justice Clerk (Gill), delivering the unanimous opinion of the Court, had stated that he could not see how a person could waive his right to legal advice when he had not had access to legal advice on the point. In view of the importance of the question raised by that observation, the Lord Advocate invited the sheriff to refer the issue to the Supreme Court. The amended reference agreed between the parties sets out the following questions for consideration by the Court: (i) Whether, in principle, it would be incompatible with Article 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given during a police interview of a suspect in police custody who, before being interviewed, had been informed of his Salduz/Article 6 rights to legal advice, and, without having received advice from a lawyer, had stated that he did not wish to exercise such rights; (ii) Whether it would be compatible with Bs rights under Articles 6(1) and 6(3)(c) for the Lord Advocate to lead and rely upon evidence of answers given in his police interview. Both parties agreed that question (i) should be answered in the negative. The Appellant argued that question (ii) should be answered in the affirmative. The Respondent disagreed. The Supreme Court, by a 4 1 majority, answers the first question in the reference in the negative, and remits the second question to the sheriff. Lord Hope gives the leading judgment. Lord Kerr gives a separate dissenting judgment. Article 6 does not expressly state that a person must have had legal advice before he can be taken to have waived the right of access to a lawyer. However, it is clear that the article is to be interpreted broadly by reading into it a variety of other rights to which the accused person is entitled, so as to give practical effect to the right to a fair trial [11]. The task for the Supreme Court is to identify as best it can the requirements which the Strasbourg court has set for the making of an effectual waiver of Convention rights. It may be that the way police interviews are currently conducted in Scotland is in need of improvement. But that should not be done by giving a more generous scope to the Convention rights than that which is to be found in the jurisprudence of the Strasbourg court or by laying down fixed rules that may impede the prosecution of crime in Scotland unless they have been clearly identified as such by Strasbourg [5, 6]. In order to be effective as a waiver of a Convention right, the acts from which the waiver is to be inferred must be voluntary, informed and unequivocal [21], and must be attended by the minimum safeguards commensurate to the importance of the right [27]. None of the Strasbourg cases indicate that an accused who acts of his own free will in waiving his right to legal assistance must always have access to legal advice before he can be held validly to have waived that right. This also reflects the position of the Supreme Courts of Canada and the United States [37 44]. There is no generally internationally recognised human rights standard on the issue of waiver that would support the conclusion that access to legal advice is an essential prerequisite to an effective waiver by a detainee of the right of access to a lawyer when he is being questioned by the police [45]. The statements of the Lord Justice Clerk in Jude to the effect that there is a rule requiring legal advice for the purpose of a valid waiver of the right to legal assistance should be disapproved. Where the detainee, having been informed of his rights, states that he does not want to exercise them, his express waiver of those rights will normally be held to be effective. The minimum guarantees are that he has been told of his right, that he understands what the right is and that it is being waived and that the waiver is made freely and voluntarily [46]. The Strasbourg decisions indicate, however, that in some cases access to a lawyer may well be a prerequisite of a valid waiver. In particular, it must not be taken for granted that everyone understands the rights in question. People who are vulnerable or under the influence of alcohol or drugs may need to be given more than standard formulae if their right to a fair trial is not to be compromised [36 & 47]. What we have been given by Strasbourg is a guiding principle as to what is needed for there to be an effective waiver. Its application in determining whether there will be, or has been, a fair trial will depend on the facts of each case [50]. Two suggestions are made for the improvement of the practice that is adopted at present: first, in order to minimise the risk of misunderstanding, police should ask the detainee for his reasons for waiving his right to legal assistance, and record the reasons given. This will provide an opportunity for any obvious misunderstandings to be corrected, though police officers should not go so far as to offer advice to the detainee [49]. Second, police should inform the detainee not only of his right to legal assistance, but also of the arrangements that may be made if he is unable to name a solicitor or is concerned about the cost of employing one [51]. It would not be appropriate to reach a decision on question (ii) in this case. The issue comes before the Court as a reference and not as an appeal. It raises questions of fact and degree which ought properly to be dealt with by the sheriff, after hearing all the evidence on this issue [53]. Lord Kerr would have answered both questions in the negative. No attempt had been made to discover why B had refused to avail himself of legal assistance, and therefore it was impossible to say that this was an unequivocal and informed waiver [128]. Only in exceptional circumstances should statements made by a suspect who has not had access to a lawyer be admitted in evidence [125]. The suggestions made by Lord Hope should be implemented as rules requiring police to obtain reasons from suspects who purport to waive their right to legal assistance. Unless one knows why the decision to waive has been made, it cannot be said to be voluntary, informed and unequivocal [115].
In 2012 Mr Macris was the International Chief Investment Officer of JP Morgan Chase Bank NA and, in that capacity, head of the banks Chief Investment Office (CIO International). Part of CIO Internationals function was to manage a portfolio of traded credit instruments called the Synthetic Credit Portfolio. The Financial Conduct Authority (FCA) is responsible for the statutory regulation of the United Kingdoms financial markets, deriving its powers from the Financial Services and Markets Act 2000 (the Act), as amended by the Financial Services and Markets Act 2012. Over the course of 2012 the Synthetic Credit Portfolio made losses of $6.2 billion and, following an investigation, the FCA concluded that the loss was caused by, amongst other things, a high risk trading strategy, weak management of that trading and an inadequate response to information which should have alerted the bank to the problems. The FCA agreed a regulatory settlement with the bank, under which it paid a penalty of 137,610,000. The provisions of the Act governing the imposition of penalties provide for three successive notices to be given to a person or firm under investigation, all of which include extensive reasons for the FCAs actions. Where a regulatory settlement is agreed before service of these notices, the usual procedure is to draft them in identical terms and serve them simultaneously. That practice occurred in this case on 18 September 2013. Where such notices contain material discreditable to particular individuals not party to the settlement, the Act makes provision under section 393 to protect these persons from unfair prejudice. When the notice identifies such a person, they must be given a copy of the notice, to enable them to make representations to the regulator and take the matter before the Upper Tribunal. These notices did not identify Mr Macris by name or job title, but there were multiple references to CIO London management, a category to which he belonged He was not supplied with a copy of the notice served on the bank or given an opportunity to make representations. He brought a claim before the Upper Tribunal, which heard as a preliminary issue the question of whether he was entitled to be notified under section 393. The Upper Tribunal upheld the complaint on the basis that the references to CIO London management would be taken by a reader with relevant experience to refer to the most senior individual involved. The Court of Appeal agreed in the result, but based their reasoning in part on an analogy with the law of defamation. This led them to conclude that persons who operated in Mr Macris field would reasonably have been able to identify Mr Macris from statements made in the notice in conjunction with publicly available material. The FCA appealed to the Supreme Court. By a majority of 4 to 1, the Supreme Court allows the FCAs appeal. Lord Sumption gives the lead judgment, with which Lord Neuberger and Lord Hodge agree. Lord Neuberger adds a concurring judgment and Lord Wilson gives a dissenting judgment. Lord Mance writes a judgment concurring with the majority in the outcome of the appeal, but agreeing with Lord Wilson on the issue of law. Lord Sumption holds that a person is identified in a notice under section 393 if he is identified by name or by a synonym for him, such as his office or job title. In the case of a synonym it must be apparent from the notice itself that it could only apply to one person and that person must be identifiable from information which is either in the notice or publicly available elsewhere. However, resort to information publicly available elsewhere is permissible only where it enables one to interpret (as opposed to supplement) the language of the notice. It is not permissible to resort to additional facts about the person so that if those facts and the notice are placed side by side it becomes apparent that they refer to the same person [11]. Lord Sumption gives five reasons: (i) section 393 defines what fairness requires in the context of notices issued by the FCA [12]; (ii) it is clear from the provision that it must be the reasons contained in the notice which identify the third party and not an extrinsic source [13]; (iii) the Act must be read in a manner which enables the FCA to ensure that a third party is not identified in the notice, when it does not know precisely what information is available elsewhere [14]; (iv) the relevant audience for publication is the public at large, not a specific industry sector specially familiar with the third party or his business [15]; and (v) the suggested analogy with the law of defamation is not helpful given its different purpose to that of section 393 of the Act [16]. Lord Neuberger points out that the wider the scope of section 393(1)(a), the more constraining it will be on the FCAs activities; but the narrower it is the greater the number of individuals who will be at risk of being harmed by notices without any recourse [23]. The question to be asked is: does the notice identify the individual in question? The statutory language appears to stipulate that the person must be identified in the notice, not that he must be identifiable as a result of the notice [25]. Lord Neuberger describes the test as whether the individual is named in the notice, or the description in the notice must be equivalent to naming him. An individual is identified in a document if: (i) his position or office is mentioned, (ii) he is the sole holder of that position or office, and (iii) reference by members of the public to freely and publicly available sources of information would easily reveal the name of that individual by reference to his position or office [26]. Lord Neuberger also points to a number of problems if a wider meaning is adopted: (i) it would be a matter of subjective assessment as to how wide a scope to give it; (ii) it could self evidently lead to disputes; (iii) it could lead to some odd consequences; (iv) it would place the FCA in difficulty from the outset; and (v) it could still lead to arbitrary outcomes [28]. Lord Wilson dissents on the ground that the majoritys approach does not strike a fair balance between individual reputation and regulatory efficiency [44]. The central issue of construction in the appeal relates to the appropriate constituency whether it is ordinary readers or ordinary market operators who would conclude that the individual to whom the notice refers is the applicant [59]. The answer is by reference to the particular sort of damage which a wrong criticism of an individual by a notice is likely to cause him: that from within the sector of the market in which he operates [60]. Lord Wilson agrees in essence with the formulation of Lord Mance: the key question being are the words in the notice such as would reasonably lead an operator in the same sector of the market who is not personally acquainted with the applicant, by reference only to information in the public domain to which he would have ready access, to conclude that the individual referred to in the notice is the applicant [63]? However, in his application of that test, Lord Mance concludes that CIO London management did not equate with or identify Mr Macris, and that no information had been shown to exist in the public domain which, when read with the notice, identified him with CIO London Management. [39]. On this basis, Lord Mance agrees with the majority in the outcome of the appeal.
This is an appeal in a test case arising from sale and rent back transactions in the north east of England. Home owners like the appellant, Mrs Scott, were persuaded to sell their properties to purchasers who promised them the right to remain in their homes for years as tenants after the sale. The purchasers bought the homes with the assistance of mortgages from lenders such as the respondents, who were unaware of the promises made to the home owners. When the purchasers defaulted on the mortgages, possession proceedings were brought by the lenders. The issue arising in this appeal is whether the home owners have any rights entitling them to remain in occupation of their homes, in addition to any claims they may have against the purchasers who may have defrauded them and their legal advisers. Mrs Scott agreed in 2005 to sell her house to an agent for North East Property Buyers (NEPB) at a significant undervalue, in return for the right to remain in her home indefinitely as a tenant at a discounted rent, with the prospect of further capital sums after ten years. The nominee purchaser for NEPB, Ms Wilkinson, obtained a buy to let interest only mortgage from the respondent (Southern Pacific) on condition that only assured shorthold tenancies of up to one year could be granted and on the basis that there were no existing tenancies. In breach of the terms of the mortgage a two year tenancy was granted to Mrs Scott four days after completion of the sale. Three years later Mrs Scott discovered that a possession order had been made on 17 March 2009 in favour of Southern Pacific, following defaults by Ms Wilkinson on the mortgage. Mrs Scott was joined as a defendant to the possession proceedings and argued that she had an equitable interest in the property from the moment of exchange of contracts, which amounted to an unregistered interest given priority by section 29(2)(a)(ii) of, and Schedule 3, paragraph 2 to, the Land Registration Act 2002 (the 2002 Act) over the lenders charges. The courts below determined as a preliminary issue that she had not. Two questions arose: (i) whether Ms Wilkinson had been in a position at the exchange of contracts to confer equitable proprietary rights on Mrs Scott, as opposed to personal rights only, and (ii) whether, even if she had, the transaction of acquiring the legal estate and granting the charge was one indivisible transaction so that Mrs Scott could not assert against Southern Pacific an equitable interest which had only arisen on completion, in accordance with the decision of the House of Lords in Abbey National Building Society v Cann [1991] 1 AC 56 (Cann). The Supreme Court unanimously dismisses the appeal. Lord Collins, with whom Lord Sumption agrees, finds against Mrs Scott on both issues. Lady Hale, with whom Lord Wilson and Lord Reed agree, holds that the appeal must fail because Ms Wilkinson could not confer equitable proprietary rights on Mrs Scott at any time before completion of the purchase. On this basis the second issue does not arise, but they would have taken a different view on the indivisibility of the transaction had it done so. One of the main objectives of land registration is to create as complete a record of title as possible. Overriding interests, to which the land is subject but are not apparent from the register, are an obstacle to this, but the interests of occupiers continue to be protected in the 2002 Act [36]. The unregistered interests which override registered dispositions under the 2002 Act must be proprietary in nature [59]. A purchaser under a contract of sale is given statutory rights to enforce his or her interest against third parties by registration, but it does not follow that the purchaser can grant proprietary rights [65]. Mrs Scott acquired no more than a personal right against Ms Wilkinson when she agreed to sell her house on the basis of the promise made to her that she could remain in occupation and this is the principal ground on which her appeal fails. Her rights only became proprietary when Ms Wilkinson acquired the legal estate, at which time the grant of the charge in favour of Southern Pacific also took effect as part of one indivisible transaction. Accordingly, the lenders rights are not subject to Mrs Scotts right to occupation [79]. It is not therefore necessary to decide whether the decision in Cann applies to a proprietary equitable interest arising at the time of a contract of sale and it is difficult to see how this question could arise in any future case [80]. The justices do, however, express their views on this as it was the main question canvassed in the courts below and at the hearing. Lord Collins considers that it was implicit in Cann that not just the conveyance and mortgage, but also the contract, were all indivisible parts of the transaction. This does not depend on execution of all three on the same day [85]. Thus even if Mrs Scott had had equitable rights of a proprietary nature against Ms Wilkinson arising on exchange of contracts, the mortgage would have taken priority [89]. Lady Hale does not agree that the finding of an indivisible transaction in Cann extends to the contract of sale, and to include the contract would create confusion [120]. She acknowledges that the decision on the principal ground in the appeal produces a harsh result [95] and is uneasy with the all or nothing approach of the present law. She is glad that the Law Commission is now subjecting the 2002 Act to a wide ranging review, to include the impact of fraud [122].
In 2007, VTB Capital plc (VTB), an English incorporated bank, entered into agreements (the agreements) with Russagroprom LLC (RAP), a Russian company. Under the agreements, VTB loaned US$225,050,000 to RAP, primarily to enable RAP to buy six Russian dairy companies and three associated companies (the dairy companies) from Nutritek International Corp (Nutritek). In 2008, RAP defaulted on the loan. VTB claims that it was induced in London to enter into the agreements by misrepresentations made by Nutritek. Mr Konstantin Malofeev, a Russian businessman resident in Moscow, is said to be the ultimate owner and controller of Nutritek, Marshall Capital Holdings Ltd (Marcap BVI), and Marshall Capital LLC (Marcap Moscow). VTB claims that Marcap BVI, Marcap Moscow, and Mr Malofeev are jointly and severally liable for these alleged misrepresentations. To bring proceedings in England, VTB required permission to serve proceedings out of the jurisdiction, because the intended defendants were not resident, or otherwise to be found, within the jurisdiction. After being served, Nutritek, Marcap BVI and Mr Malofeev applied to Mr Justice Arnold for the service to be set aside, largely because England was not considered to be the appropriate forum. In addition to opposing this application, VTB sought to amend its pleaded case to contend that RAPs corporate veil should be pierced with the effect that Mr Malofeev, Marcap BVI and Marcap Moscow would be treated as jointly and severally liable with RAP for breaches of, and/or otherwise subject to remedies to enforce, two of the agreements. Mr Justice Arnold found against VTB on both issues, and, while holding that he had gone wrong in certain respects on the first of those issues, the Court of Appeal dismissed VTBs appeal. VTB appeals on both issues to the Supreme Court. In the meantime, it obtained a worldwide freezing injunction against Mr Malofeevs assets pending the determination of the legal proceedings (the freezing injunction). There are three issues before the Supreme Court: (i) whether the permission granted to VTB to serve the proceedings out of the jurisdiction should remain set aside (the jurisdiction appeal); (ii) whether VTB should be allowed to amend its pleaded case to include the claim based on piercing the corporate veil (the corporate veil appeal); and (iii) whether the freezing injunction should be discharged. The Supreme Court (i) by a majority of three to two (Lord Clarke and Lord Reed dissenting), dismisses the jurisdiction appeal, so that VTB may not serve out of the jurisdiction; (ii) unanimously dismisses the corporate veil appeal, so that VTB is not permitted to amend its pleaded case to include a claim on piercing the corporate veil; and (iii) unanimously discharges the freezing injunction obtained by VTB against Mr Malofeevs assets. The jurisdiction appeal It is incumbent on a defendant challenging jurisdiction to identify the issues concerned and to state as clearly as possible how they arise or may arise in the proceedings [36]. This does not require the defendant to advance a positive case [39]. A defendant is entitled to keep his powder dry in relation to his evidence [90]. Hearings concerning appropriate forum should not involve masses of documents and long argument. It is self defeating if, in order to determine the question of jurisdiction, parties prepare for and conduct a hearing which approaches the putative trial itself [82]. In a case such as this, if a court is not satisfied that England is clearly the appropriate forum in which to bring a claim, then permission to serve out must be refused or set aside [18]. Where a judge has exercised his or her judgment to determine whether England is the appropriate forum, an appellate court should refrain from interfering with that decision, unless satisfied that the judge made a significant error [69]. In this case, the majority consider that there are no grounds which justify interfering with the judges decision, or, if the Court of Appeal was entitled to re exercise the power, interfering with the Court of Appeals decision, on this issue. Whilst the conclusion of the lower courts that Russian law governed the alleged torts was wrong, the correct conclusion that English law governed would not have made any difference. Not only did the judge and the Court of Appeal say as much, but the governing law is a factor of very little, if any, real potency, because the key issues in this litigation will on the face of it be factual not legal [45] [49],[54] [55],[100] [101]. The issues, oral and documentary evidence are focused on Russian witnesses and overwhelmingly on matters which happened in and concern Russia, where they could be considered without translation [62],[66],[154]. The issue of governing law cannot have been decisive in the judges decision [68]. Whilst agreements relevant to VTBs claims contained non exclusive jurisdiction clauses in favour of England, such clauses in this case are, as the judge said, not particularly strong factors in favour of English jurisdiction [65] [66],[105],[111]. There is therefore no basis on which the Supreme Court would be justified in re exercising the power to decide for itself the jurisdictional issue [69],[98],[113],[156]. The minority agree that, where the only challenge that can be advanced depends upon persuading an appellate court to balance the various jurisdictional factors differently, an appellate court should not interfere [229]. They consider, however, that a number of errors of principle were made in the exercise of the power to decide the jurisdictional issue, which require the Supreme Court to reach its own independent conclusion [191],[231],[241]. This is primarily because it is generally appropriate for a claim in tort governed by English law to be adjudicated upon by an English court [219],[233], and the non exclusive jurisdiction clauses also point in the direction of England [221] [222],[234] [235]. In coming to that independent conclusion, the minority consider that England is the appropriate forum for the trial of the dispute [227],[236] [237]. The corporate veil appeal VTB may not amend its pleaded case to include a claim on piercing the corporate veil of RAP in order to attach liability to Mr Malofeev, Marcap BVI, and Marcap Moscow, because VTBs proposed case does not give rise to arguable grounds for contending that the jurisdiction to pierce the corporate veil can be invoked [72],[148],[158],[238],[243]. This is an interlocutory appeal, and so it is unnecessary and inappropriate to resolve the issue of whether, unless any statute relied on in the particular case expressly or impliedly provides otherwise, the court is entitled to pierce the veil of incorporation [130],[158],[238]. On the assumption that the court can pierce the corporate veil on appropriate facts, VTBs case involves an extension to the circumstances where it has traditionally been held that the corporate veil can be pierced [131]. This extension would mean that the person controlling the company could be held liable as if he had been a co contracting party with the company concerned to a contract where the company was a party but he was not, and where neither he nor any of the contracting parties intended him to be [132]. Such an extension would be contrary to authority and contrary to principle [133] [147]. Moreover, the extension is not needed to enable VTB to seek redress from Mr Malofeev: if VTB establishes that it was induced to enter into the agreements by the fraudulent statements which he is alleged to have made, then Mr Malofeev will be liable to compensate VTB [146]. The freezing injunction The worldwide freezing order against Mr Malofeev is discharged, because VTB has not been granted permission to serve proceedings on him [74],[150],[159],[239],[244].
Under section 82 Sexual Offences Act 2003 all persons sentenced to 30 months imprisonment or more for a sexual offence become subject to a lifelong duty to keep the police notified of where they are living and of travel abroad (the notification requirements). There is no right to a review of the necessity for the notification requirements at any time. The respondents are convicted sex offenders subject to the notification requirements. Both brought claims for judicial review claiming that the absence of a right of review of the requirements rendered them a disproportionate manner of pursuing the legitimate aim of preventing crime and thereby breached their right to privacy protected by Article 8 of the European Convention on Human Rights. The Divisional Court granted the respondents claims and made a declaration that s 82 (1) Sexual Offences Act 2003 was incompatible with Article 8. The Court of Appeal dismissed an appeal by the Secretary of State for the Home Department, who then appealed to the Supreme Court. The Supreme Court unanimously dismissed the appeal and repeated the declaration of the lower courts that s 82(1) Sexual Offences Act 2003 was incompatible with Article 8 because it made no provision for individual review of the notification requirements. Lord Phillips (with whom all the members of the court agreed) stated that the issue in the case was one of proportionality. It was common ground that the notification requirements interfered with the offenders rights to privacy, that the interference was in accordance with the law and that it was directed at the legitimate aims of the prevention of crime and the protection of the rights and freedoms of others. The court had to consider three questions: (i) what was the extent of the interference with the Article 8 rights, (ii) how valuable were the notification requirements in achieving the legitimate aims and (iii) to what extent would that value be eroded if the notification requirements were made subject to review [paragraph 41]? If someone subject to the notification requirements could demonstrate that they no longer posed any significant risk of committing further sexual offences, there was no point in subjecting them to the interference with their Article 8 rights, which would then merely impose an unnecessary and unproductive burden on the responsible authorities [paragraph 51]. The critical issue was whether a reliable risk assessment could be carried out in the case of sex offenders. The research into reoffending rates relied on by the Secretary of State showed that 75% of the sexual offenders who were monitored over a 21 year period were not reconvicted and there was no evidence before the court that showed that it was impossible to identify some at least who posed no significant risk of re offending [paragraph 56]. For various other provisions affecting sex offenders the degree of risk of reoffending had to be assessed. It was obvious that there must be some circumstances in which an appropriate tribunal could reliably conclude that the risk of an individual carrying out a further sexual offence could be discounted to the extent that continuance of the notification requirements was unjustified. The existence of review provisions in other countries with similar registration requirements for sex offenders suggested that a review exercise was practicable [paragraph 57]. Accordingly the courts below were correct to find that the notification requirements constituted a disproportionate interference with Article 8 rights because they made no provision for individual review of the requirements.
In 2003 the Appellant purchased a flat in London for 775,000. To do so, he paid 310,000 from his own resources and was provided with the remaining balance of 465,000 by a mortgage lender, on the basis of false statements he made about his employment record and earnings. In April 2005, that mortgage was redeemed as the Appellant remortgaged the flat to a different mortgage lender. On 10th July 2007 at Southwark Crown Court, the Appellant was convicted of obtaining a money transfer by deception in relation to the false statements he made to the initial mortgage lender. He was sentenced to 80 hours community punishment, and the Crown sought a confiscation order under the Proceeds of Crime Act 2002 (POCA) in respect of the purported economic benefit that the Appellant obtained from his crime. On 25th January 2008 the judge made a confiscation order for 1.54m, which amounted to the increased market value of the flat at that time less the 310,000 paid by the Appellant at the time of the initial purchase. On 25th March 2010, the Court of Appeal reduced the order to 1.11m, which amounted to 60% the percentage of the initial value of the property provided by the mortgage lender as a result of his false statements of the flats increased market value. The Supreme Court, sitting as a bench of seven justices in May 2011, heard argument on whether someone in the position of the Appellant could be said to have gained a benefit from his crime and, if so, how such a benefit should be identified. But the Court then identified a further issue, that is whether the confiscation provisions of POCA could potentially give rise to a confiscation order which breaches Article 1 of the First Protocol (A1P1) of the European Convention on Human Rights (the Convention), which protects the right to peaceful enjoyment of ones possessions. In March 2012, the Court reheard the case in relation to that topic and issues related to it. The Supreme Court unanimously allows Mr Wayas appeal. Lord Walker and Sir Anthony Hughes, with whom Lady Hale, Lord Judge, Lord Kerr, Lord Clarke and Lord Wilson agree, give the leading judgment in which they substitute a confiscation order of 392,400. Lord Phillips and Lord Reed, in their partially dissenting judgment, express the view that the confiscation order should be quashed entirely. The effect of A1P1 jurisprudence is to require that confiscation orders made under POCA must be proportionate to the aims of that Act [11 12, 20]. s.3(1) of the Human Rights Act 1998 requires, so far as it is possible to do so, that legislation must be read and given effect by the courts in a way that is compatible with Convention rights. The Court therefore holds that the Crown Court should only make confiscation orders which would be proportionate in each case [12 16]. However, this does not amount to giving general discretion to judges to fit confiscation orders to the facts and justice of a case [24]. Such discretion was previously removed from judges by Parliament [4]. To assess whether a particular confiscation order would be disproportionate, it is important to note that the aim of POCA is to remove the proceeds of crime from criminals, rather than to act as a deterrent [2, 21 22]. If to make such an order would effectively constitute an extra punishment, such as in a case where a defendant has already restored the losses his crime caused to the victim and has therefore gained no benefit, it would be disproportionate for the court to do so [28 29]. However, in the present case the Appellant gained a benefit in the form of an increase in value of the flat that his fraud enabled him to buy. It is therefore not a case in which any confiscation order would be disproportionate [35]. The Court identifies the property initially obtained by the Appellant as a result of or in connection with his crime, under s.76(4) POCA, as the bundle of rights and liabilities arising from the contractual arrangements made between the Appellant, the vendor and the mortgage lender prior to completion of the purchase, which had no market value. To say he obtained the 465,000 loan is legally inaccurate, as it was never his or in his possession [53]. To say he obtained the whole flat ignores his 310,000 payment, would be disproportionate, and neither a fair nor a purposive application of s.76(4)[46 47]. In situations where a defendant derives further property for example, by sale or mortgage from the property that he initially obtained by his crime, s.80(3) POCA operates to enable the courts to trace the derived property back to the initially obtained property. [56 58]. This enables the courts to value the benefit of the crime in such cases, and is why the Court required to identify the property initially obtained by the Appellant in this case [43 44]. s.79(3) POCA requires that lawfully co existing interests in property be valued individually. As such, the Court holds that the Appellants interest in the flat, at the time the confiscation order was made, was a limited interest subject to the mortgage lenders co existing interest in the flat. However, s.79(3) must not apply with the effect that a defendant who perpetrates an acquisitive crime, such as theft, gains an essentially worthless interest because the right of restoration of the true owner falls to be deducted as a co existing interest. If that were so, the value of property obtained by a defendant in such cases would invariably be nil, rendering the confiscation provisions of POCA ineffectual [64 69]. The benefit that the Appellant obtained from his crime following completion of the purchase, which could be traced back to the bundle of rights and liabilities he obtained prior to completion, was 60% of any increase in the flats market value over its acquisition price. This percentage corresponds to that of the initial acquisition price of the flat which, in the form of the loan of 465,000, he obtained dishonestly [70]. There was no evidence before the court as to other assets which at the confiscation date represented the sum that the Appellant realised from the remortgage, so this cannot be considered as part of his benefit [74]. Noting a minor adjustment to account for the Appellants repayment of part of the principal sum secured by the remortgage, the Court therefore substitutes a confiscation order of 392,400 [76 81]. Lord Phillips and Lord Reed agree with the most important aspect of the majority judgment, namely their analysis and resolution of the A1P1 issues arising from POCA. Their dissent pertains to the way POCA should apply to mortgage transactions in view of that analysis [82 83]. Applying the language of s.76(4) POCA, Lord Phillips and Lord Reed identify the property initially obtained as the flat itself [104 109]. Accounting for the co existing interest of the lender under s.79(3), the value of that property to the Appellant was 310,000, which was the amount he himself paid upon purchase [110]. Paradoxically, the more principal a defendant has repaid, the greater the value the property will be to him under POCA and therefore the greater the confiscation order [113]. To avoid each of these POCA effects leading to a disproportionate confiscation order where they arise, the judge should tailor that order under A1P1 [108, 111, 113]. Further, Lord Phillips and Lord Reed do not agree with the majority that the Appellants benefit under POCA was 60% of the flats increase in value over the acquisition price [95 96]. Applying the express provisions of POCA, his benefit was 987,400, which is the difference between the flats value and the mortgage at the time the confiscation order was made. However, to confiscate this sum would be disproportionate [114]. In reality, the benefit he obtained was the extent to which the terms of his mortgage loan were more generous due to his misrepresentations. That figure could be calculated by the Crown Court if the case was remitted to it, but it would be just to quash the order in the circumstances of this case [115 125]. This summary is provided to assist in understanding the Courts decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: www.supremecourt.gov.uk/decided cases/index.html
By a Treaty signed at Athens on 16 April 2003 (the Athens Treaty), ten Accession States became member states of the EU. The Act of Accession, annexed to the Athens Treaty, permitted the existing member states to apply national measures regulating access to their labour markets by nationals of the eight most populous Accession States (the A8 States) which included Latvia. It required the existing member states to apply measures, for an initial period of two years from the date of accession, regulating access to their labour markets by Latvian nationals. The existing member states were permitted to continue to apply such measures until the end of the five year period following the date of the accession. An existing member state maintaining such measures at the end of the five year period was permitted, in case of serious disturbances of its labour market or threat thereof and after notifying the Commission to continue to apply these measures until the end of the seven year period following the date of accession. The Act of Accession was given effect in the domestic law of the UK by the European Union (Accessions) Act 2003 and the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) (the 2004 Regulations). The 2004 Regulations established the Worker Registration Scheme (WRS) which obliged any national of an A8 State to register before starting employment and before taking up any new employment. Each registration incurred a fee of 90 and the obligation to register continued until the worker had worked for 12 months. Failure to register work in accordance with the WRS would mean that the individual would not derive from that work a right to reside in the UK. In 2009 HM Government asked the Migration Advisory Committee (MAC) to advise it in relation to the continuation of the WRS. In the light of the MACs advice, the Government decided to extend the measures applicable to nationals of the A8 States for a further two years. The central issue in this case is whether Ms Tamara Gubeladze (the respondent), a Latvian national living in the UK, is entitled to receive state pension credit. The respondent came to the UK in 2008 and worked for various employers between September 2009 and November 2012. In the periods when she was not working she was a jobseeker. She was issued with a registration certificate under the WRS on 20 August 2010. Her employment before that date was not covered by the certificate. On 24 October 2012, the respondent made a claim for state pension credit. The basis of her claim was that she had a right of residence in the UK under regulation 5(2) of Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), (the 2006 Regulations), which implement article 17(1)(a) of Directive 2004/38/EC (the Citizens Directive), as a person who had retired, having pursued activities as a worker for at least a year in the UK, and having resided continuously in the UK for three years. The Secretary of State for Work and Pensions (the Secretary of State) rejected her claim on the ground that the requirement of three years continuous residence required three years continuous residence which meant a right of residence under the Citizens Directive. Since the respondents asserted right of residence during that time was as a worker, but she had not been registered under the WRS for part of that period, the Secretary of State considered that she had not resided in the UK pursuant to a right of residence conferred by the Citizens Directive and therefore did not meet the three year residence requirement in regulation 5(2) of the 2006 Regulations. The respondents appeal to the First tier Tribunal was dismissed on jurisdictional grounds. On appeal to the Upper Tribunal, it held that the First tier Tribunal had had jurisdiction to hear the appeal and it re made the substantive decision. It allowed the respondents appeal on two distinct grounds. First, it held that article 17 of the Citizens Directive, and therefore regulation 5(2)(c) of the 2006 Regulations, did not require that the three years continuous residence be in exercise of rights under the Citizens Directive. Actual residence was sufficient. Secondly, it held that the decision to extend the WRS in 2009 was disproportionate and therefore unlawful. On that footing, the respondents residence in the UK at the relevant time had not involved any breach of any applicable valid domestic law and so was to be regarded as legal residence for the purposes of the 2006 Regulations. The Secretary of State appealed to the Court of Appeal which dismissed the appeal. In the Court of Appeal, the Secretary of State succeeded in her appeal in relation to the first point, with the Court holding that the word reside in article 17(1)(a) of the Citizens Directive meant legally reside in the requisite sense; but the Court held that the extension of the WRS was disproportionate and therefore incompatible with EU law. The Secretary of State appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Lloyd Jones and Lord Sales give the sole judgment with which the other Justices agree. (1) Is the decision to extend the WRS open to challenge on grounds of proportionality? The Secretary of State submits that the extension of the WRS did not interfere with or derogate from any pre existing protected interest, so it was not subject to any requirement of proportionality under EU law [27]. The Court considers that the question at the heart of this issue is whether the Act of Accession created relevant protectable interests by conferring rights of EU citizenship on the new EU citizens from the A8 States subject to initial, tapering exceptions imposed by the existing member states, or whether it should be regarded as providing for only such rights as may be conferred by the existing member states during the transitional period. The House of Lords in Zalewska v Department for Social Development [2008] UKHL 67 took the former view [32]. The Court agrees. It considers that there was no intention under the Act of Accession to confer an unfettered right to derogate from general principles of freedom of movement. On the contrary, derogation from those principles must be subject to the principle of proportionality in EU law [35]. This conclusion is supported by the scheme of the relevant instruments [33] and the purpose of the measures [35]. (2) If the decision to extend the WRS is open to challenge on grounds of proportionality, did the Upper Tribunal and the Court of Appeal err in their approach and conclusion on this issue? It is significant that the Secretary of State has simply relied upon what is said in the MAC report of April 2009. She has not filed evidence to explain any distinct reasoning as to why the extension of the WRS was justified, nor to point to any additional relevant factors other than those taken into account by the MAC in its report [49]. This poses problems for the Secretary of State because the MAC was not asked to consider whether an extension of the WRS would be proportionate in terms of EU law and it expressed no view about that [50]. The leading decision of this Court on the principle of proportionality in EU law is now R (Lumsdon) v Legal Services Board [2015] UKSC 41 [57]. This explains that the principle applies according to a three stage test. As regards the first stage of this test, the Court considers that the continuation of the WRS is suitable or appropriate to achieve the objective pursued [66]. The MAC report showed that extending the WRS would have a material, though small, effect in mitigating the serious disturbances to the UK labour market by reducing the flow of workers from A8 States which would otherwise occur [68]. No issue arises in relation to the second stage. However, the Court finds that the third stage of the proportionality analysis (sometimes called proportionality stricto sensu) is not satisfied. According to the assessment in 2009 the extension of the WRS would have only a small and rather speculative mitigating effect in relation to the serious disturbances in the UKs labour market, as found by the MAC, whereas the burdens and detriments it would impose on employers and A8 nationals working in the UK were substantial and serious [70]. The result is that the extension of the WRS in 2009 was a disproportionate measure which was unlawful under EU law [74]. On the basis of the Courts rulings on Issues 1 and 2, the appeal falls to be dismissed. (3) If the Secretary of State succeeds on Issue 1 or Issue 2, does article 17(1)(a) of the Citizens Directive require a person to show that, throughout the period of continuous residence, she enjoyed a right of residence under that Directive? Although resolution of this issue is not necessary for the determination of the present appeal, the Court considers that it should deal with it since the interpretation of article 17(1)(a) may be important in other cases [79]. The Court concludes that, on a textual interpretation of the relevant provisions, the concept of residence as referred to in article 17(1)(a) is factual residence [81]. This interpretation is reinforced by the purpose of the Citizens Directive, which is to enhance existing rights of free movement and residence and not to subject them to new restrictive conditions [82]. For these reasons, the Upper Tribunal arrived at a correct interpretation of article 17(1) in holding that residence in article 17(1) refers to factual residence rather than legal residence in the specific sense which that term bears in the context of the Citizens Directive [92]. (4) If article 17 of the Citizens Directive requires legal residence in the relevant sense, is actual residence sufficient for the purposes of the 2006 Regulations? As the Court holds that the term residence in article 17(1)(a) has the meaning set out above, this issue does not arise [93]. For the reasons set out in the judgment, the Court would dismiss the Secretary of States appeal [94].
The appellants are the next of kin of Martin McCaughey and Dessie Grew, who were shot and killed by members of the British Army on 9 October 1990. They believe that the men were the victims of a shoot to kill policy. In 1994 the Director of Public Prosecutions decided that no prosecutions should be brought and the papers were passed to the Coroner. Some preparatory steps have been taken but for various reasons the inquest into these deaths have still to take place. The appellants seek a declaration that the scope of the inquest should comply with Article 2 of the European Convention on Human Rights (the Convention) and thereby extend to an examination of the planning and control of the operation that led to the deaths. Article 2 (1) provides that Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. Article 2 gives rise not only to a substantive obligation on the state not to kill people but also a procedural obligation to carry out an effective investigation into the circumstances of the deaths (the procedural obligation). It has been possible since 1966 for an individual to pursue a complaint that the United Kingdom has breached its obligations under Article 2 to the European Court of Human Rights (the ECtHR) if domestic law does not provide a remedy. The issue arising in these appeals is whether the appellants are entitled to bring a domestic claim under the Human Rights Act 1998 (the HRA), which came into force on 2 October 2000. In 2004 the House of Lords held in In re McKerr [2004] UKHL 12 that the procedural obligation to investigate a death was triggered by the death. Investigations into deaths occurring before 2 October 2000 were not therefore within the reach of the HRA, as it was not retrospective. In 2009 the Grand Chamber of the ECtHR extended the effect of Article 2 in ilih v Slovenia (2009) 49 EHRR 996, ruling that it imposed a freestanding procedural obligation, which in certain circumstances arose even where (as in that case) the death occurred before the member state had ratified the Convention. In this case the Coroner assigned to conduct the inquest made a preliminary ruling as to its scope on 1 December 2009. He proposed to consider the purpose and planning of the operation in which the deceased met their deaths. The Chief Constable of the Police Service of Northern Ireland asserted that as there was no requirement to comply with Article 2 under the HRA (in the light of McKerr) the scope of the inquest was restricted to establishing by what means the deceased came to their deaths. On the appellants application for a declaration, the High Court and Court of Appeal in Northern Ireland held that they were bound by McKerr to hold that the HRA did not apply to the appellants claims, even if that decision was now inconsistent with ilih. The Supreme Court by a majority (Lord Rodger dissenting) allows the appeal and holds that the Coroner holding the inquest must comply with the procedural obligation under Article 2. The Convention is a living instrument and the ECtHR has over time extended the ambit of Convention rights in many areas. Article 2 is an example of this. The procedural obligation was first identified in 1995. In 2001 (in Moldovan v Romania) the ECtHR held that the procedural obligation was derived from the deaths, and the Convention would only apply to the procedural obligation if it applied also to the substantive obligation. This reasoning was echoed by the House of Lords in 2004 in McKerr on the question of whether the HRA could apply to the procedural obligation when it did not apply at the time of the death [5]. The Grand Chamber of the ECtHR departed from its reasoning in Moldovan in ilih in 2009. It held that in certain circumstances Article 2 imposed a freestanding or detachable obligation in relation to the investigation of a death which applied even when the death itself had occurred before the member state ratified the Convention. Those circumstances included where a significant proportion of the procedural steps would take place after the Convention had come into force [50]. As a matter of international obligation, therefore, it is now apparent that the UK must ensure that the inquest which is the subject of this appeal complies with Article 2 as far as this is possible under domestic law [51][82]. The ambit of the HRA has to be interpreted by reference to Parliaments presumed intention on enactment concerning future developments by the ECtHR of Convention rights. As to this, two principles could be detected, which were potentially in conflict. The first was that the HRA should not operate retrospectively. The second was that its ambit should mirror that of the Convention, so that claims could now be brought in the UK which would otherwise be permitted before the ECtHR. The first principle prevailed in McKerr. That case was argued on the basis that Article 2 imposed a continuing procedural obligation linked to the death. ilih made it clear, however, that if a State held an inquest, it was under a freestanding obligation to ensure that it complied with the procedural obligations of Article 2. In the light of this, Parliament could be presumed to have intended that there should be a domestic requirement to mirror the international requirement which now applies [60 62]. In practice, comparatively few inquests will be affected by this ruling, given the ten years which have already passed since the HRA came into force [102] Lord Rodger dissented, considering that ilih was irrelevant to the interpretation of the HRA and that the decision of the majority involved adding a transitional provision to the HRA which for policy reasons Parliament had not included [161] Lord Hope agreed with him that there was no right in domestic law to an Article 2 compliant inquest in respect of deaths occurring prior to 2 October 2000. However, he agreed with the majority that where the state has decided to hold an inquest into such a death, that inquest must comply with Article 2 [75].
These appeals concern the making of orders for possession of a persons home in favour of a local authority. The issue is whether, in circumstances where the occupier is not a secure tenant, the court that makes the order must consider the proportionality of making it. Most residential occupiers of property owned by local authorities are secure tenants under the Housing Act 1985. This restricts the circumstances in which they can be evicted. Certain types of tenancy, however, are excluded from that regime. The case of London Borough of Hounslow v Powell involved one such type: accommodation provided under the homelessness regime in Part VII of the Housing Act 1996. In order to regain possession of such accommodation, domestic law requires only that the local authority must give notice to quit and obtain a court order. Ms Powell, as a homeless person to whom the local authority owed a duty to provide accommodation, had been given a licence to occupy property under Part VII. Rent arrears of over 3,500 accumulated and the local authority issued a claim for possession of the property. The court hearing the claim made an order requiring Ms Powell to give up possession. The cases of Leeds City Council v Hall and Birmingham City Council v Frisby involved a second type of non secure tenancy: introductory tenancies entered into under Part V of the Housing Act 1996. This type of tenancy is designed to provide an initial period of probation. It remains introductory for a period of one year, after which it becomes secure unless the introductory tenancy has been terminated. If the local authority decides to terminate the introductory tenancy the tenant is entitled to a review of that decision, but once the relevant procedures have been gone through section 127(2) of the 1996 Act provides that the court shall make a possession order. Mr Hall and Mr Frisby had both been granted introductory tenancies, by Leeds and Birmingham City Councils respectively. Allegations were made against them of noise nuisance and anti social behaviour. The local authorities served notices indicating their intention to seek possession, which were upheld on review. In possession proceedings the courts found in favour of the local authorities. The three occupiers appealed to the Court of Appeal. They argued that Article 8 of the European Convention on Human Rights, which provides that Everyone has the right to respect for his home, required that the court hearing the possession proceedings must be able to assess the proportionality of making the orders against them. As the court did not do this, there was a breach of their Article 8 right. The Court of Appeal dismissed the appeals and the occupiers appealed to the Supreme Court. The Supreme Court unanimously holds that a court must have power to consider the proportionality of making possession orders under the homelessness and introductory tenancy schemes. In the cases of Powell and Hall the Court allows the appeals and, having considered the facts in the case of Frisby, it dismisses his appeal. Lord Hope and Lord Phillips give judgments. These cases were a sequel to the case of Manchester City Council v Pinnock [2010] UKSC 45. There the Supreme Court held that Article 8 of the European Convention on Human Rights requires that a court, which is being asked to make a possession order against a person occupying under the demoted tenancy scheme in Part V of the Housing Act 1996, must be able to consider whether it would be proportionate to do so. The present cases raised the question of whether that principle applied to the homelessness and introductory tenancy schemes and, if so, how cases of this kind should be dealt with in practice by the courts. The Court held that the principle from Pinnock applied to the homelessness and introductory tenancy schemes: in all cases where a local authority seeks possession of a property that constitutes a persons home under Article 8, the court must be able to consider the proportionality of making the order. [3] The Court then set out general guidance on meeting this requirement. A court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and has crossed the high threshold of being seriously arguable. The threshold will be crossed in only a small proportion of cases. The question then will be whether making an order for possession is a proportionate means of achieving a legitimate aim. Two legitimate aims should always be taken for granted: the making of the order will (a) vindicate the authoritys ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. The authority is not required to plead in advance any more particularised reasons or to advance a positive case that possession would accord with the requirements of Article 8: such a requirement would collapse the distinction between secure and non secure tenancies. Where the local authority has a particularly strong or unusual reason for seeking possession, however, it is entitled to ask the court to take that reason into account and it should plead the reason if it wishes the court to do so. If a court entertains a proportionality argument, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order sought. [33] [49] On the face of it, section 127(2) of the Housing Act 1996 gives the court no discretion in the case of an introductory tenancy. But this does not prevent the court considering proportionality. Given that lawfulness is an inherent requirement of the procedure for seeking a possession order, it is open to the court to consider whether that procedure has been lawfully followed in respect of the defendants Article 8 rights. [56] Section 89 of the Housing Act 1980, however, does restrict the courts discretion as to the period for which the taking effect of the order can be deferred. The section provides that a court making a possession order cannot postpone the date for possession for more than fourteen days or, in the case of exceptional hardship, six weeks. The Supreme Court held that the mandatory language of the section prevents a court allowing a longer period to comply with the requirements of proportionality. There was, however, no indication that proportionality requires a longer period and therefore no reason to declare section 89 incompatible with Article 8. [64]
The father of a young girl (called Amelia in the judgment) successfully appealed against a placement order obtained by a local authority for Amelias adoption without her fathers consent. The Court of Appeal ordered the local authority to pay the fathers costs of the appeal. The issue arising on this appeal is whether it was right to do so, given the principle confirmed by the Supreme Court in In re T (Care Proceedings: costs) [2012] UKSC 36 that in general local authorities should not be ordered to pay costs in care proceedings. Amelias father married her mother in 2002 but they separated in 2007 before she was born. Amelia lived with her mother. Care proceedings were commenced as a result of concerns on the part of the local authority that Amelia and her other sibling and half siblings had suffered or were likely to suffer significant harm owing to a lack of proper parental care from their mother. The father had had only limited contact with the children. The local authority considered that he did not have the capacity to meet Amelias high level of need and, with the support of the childrens guardian allocated in the care proceedings, sought a closed adoption for her (ie without contact with her birth family). The judge at first instance accepted the local authoritys opinion and made the placement order. The placement order was overturned by the Court of Appeal on the basis that the judge had been wrong to make the order without further assessment of the situation of the father and child, and had not adequately articulated her reasons. Since then further assessment has taken place and Amelia has now been placed with her father under a child arrangements order. In bringing the appeal the father incurred legal costs assessed in the sum of 13,787. The Court of Appeal ordered that the local authority should pay those costs because it had resisted the appeal, and in order not to deter a parent from challenging decisions which impact on the most crucial of human relationships. It held that the principle in In re T was not applicable to appeals. The local authority appealed to the Supreme Court in relation to the costs order only, and on the basis that whatever the outcome, it would not seek to recover the costs awarded and paid to the father. The Supreme Court unanimously allows the appeal by the local authority and sets aside the costs order made in the Court of Appeal. Lady Hale gives the only judgment. In re T upheld the general practice of not awarding costs against a party, including a local authority, in childrens proceedings, in the absence of reprehensible behaviour or an unreasonable stance. It held that local authorities should not be deterred from their statutory duty to protect children by bringing proceedings. In re T was different from this case, in that it involved a first instance fact finding hearing rather than an appeal; and the costs of interveners who merely wished to clear their names of abuse allegations, rather than of parents who wished to care for the child themselves [13]. The question was whether these distinctions were material. The general rule that in civil proceedings the unsuccessful party will be ordered to pay the costs of the unsuccessful party does not apply to first instance or appellate proceedings about children [15]. For many years the practice in such proceedings has been to make no order in the absence of exceptional circumstances. The only winner should be the child and no one should be deterred by the risk of having to pay the other sides costs from playing their part in helping the court achieve the right solution [21]. It is important for the parties to be able to work together in the interests of the children during and after the proceedings, which stigmatising one party as the loser does not assist [23]. An order to pay costs may reduce the resources available to look after the child or, for a local authority, reduce the budget for the protection of other children [24]. It is irrelevant whether a party is publicly funded or not [25]. Parents are always entitled to resist the claim of the state to remove their children from them, but it does not follow that the local authority is unreasonable in seeking to protect the child if it loses [28]. On an appeal different considerations will apply when assessing whether a party has acted unreasonably but the principle is the same [29]. In re T did not rule out the possibility of other circumstances in which an award of costs in care proceedings might be appropriate [31] provided that a local authority was not put into a worse position than private parties [32]. Nor should it be put in a better position. The object of the exercise is to achieve the best outcome for the child and there may be cases where the welfare of the child would be put at risk if a costs order is not made [33]. In this case it is not suggested that the local authority has behaved in any way reprehensibly towards Amelia or her father [35]. The suggestion that it should not have opposed the appeal because of the deficiencies in the first instance judgment is unwarranted and the Court of Appeal would have been surprised had the local authority failed to respond to the appeal [36]. None of the exceptions to the general approach to awards of costs in children cases applies in this case and the appeal (with the assurance that the local authority has given as regards the fathers costs in this case) is therefore allowed [39].
Section 64 of the Police and Criminal Evidence Act 1984 (PACE) required the destruction of samples or fingerprints taken from a person in connection with the investigation of an offence if he was cleared of that offence. Section 64(1A) of PACE, enacted by section 82 of the Justice and Police Act 2001 (the 2001 Act), replaced that statutory obligation to destroy data with a discretion. Section 64(1A) provides that samples taken in connection with the investigation of an offence may be retained after they have fulfilled the purposes for which they were taken. Section 64(1A) was supplemented by guidelines issued by the Association of Chief Police Officers (ACPO). These guidelines provided that data should be destroyed only in exceptional cases. The polices retention policy was challenged in R (S) v Chief Constable of the South Yorkshire Police and R (Marper) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196 (Marper UK). The claimants argued that the retention by the police of their finger prints and DNA samples was incompatible with article 8 of the European Convention on Human Rights (the ECHR). The majority of the House of Lords held that retention did not constitute an interference with the claimants article 8 rights and they held unanimously that in any event any such interference was justified under article 8(2). However, in 2008, the European Court of Human Rights (ECtHR) disagreed: see S and Marper v United Kingdom (2008) 48 EHRR 50 (Marper ECtHR). It found the indefinite retention of data to be an interference which was not justified under Article 8(2). The Governments immediate response was to remove children under the age of 10 from the database. They then opened a consultation period to consider the appropriate legislative reform. This resulted in legislation which, following the change of government in May 2010, was not brought into force. The Coalition Government is promoting new legislation to take account of the ECtHRs judgment. In December 2007, GC was arrested on suspicion of common assault on his girlfriend. He denied the offence. A DNA sample, fingerprints and photographs were taken after his arrest. On the same day he was released on police bail without charge and was subsequently informed that no further action would be taken. In March 2009, C was arrested on suspicion of rape, harassment and fraud. His finger prints and a DNA sample were taken. He denied the allegations. He was charged in respect of the rape allegation but no further action was taken in respect of the harassment and fraud allegations. In the Woolwich Crown Court in May 2009, the prosecution offered no evidence and C was acquitted. In both cases, the appellants requested the destruction of the data taken. Their requests were refused as there were no exceptional circumstances within the meaning of the ACPO guidelines. The appellants issued proceedings for judicial review of the retention of their data on grounds that, in light of Marper ECtHR, its retention was incompatible with their article 8 rights. In the circumstances, the Divisional Court (Moses LJ and Wyn Williams J) dismissed the applications for judicial review and granted a certificate that the cases were appropriate for a leapfrog appeal to the Supreme Court: [2010] EWHC 2225 (Admin). The Supreme Court, by a majority, allows the appeals (Lords Rodger and Brown dissenting). Lord Dyson gives the lead judgment. The majority grant a declaration that the present ACPO guidelines are unlawful because they are incompatible with article 8 of the ECHR. They grant no other relief. Interpretation of section 64(1A) of PACE It is common ground that Marper UK should be overruled. It is also agreed that in light of Marper ECtHR, the indefinite retention of the appellants data under the current retention policy is a breach of article 8 ECHR. The only issue in these appeals, therefore, is what the court should do about that in the present circumstances. Section 3 of the Human Rights Act 1998 (HRA) requires the court, insofar as it is possible to do so, to interpret legislation in a way which is compatible with Convention rights. It is uncontroversial that the statutory purpose of section 64(1A) was to remove the requirement to destroy data after it had served its immediate purpose so as to create a greatly extended database. The extended database was to facilitate the prevention of crime, the investigation of offences and the conduct of prosecutions. However, this does not mean that Parliament intended that, save in exceptional circumstances, the data should be retained indefinitely. Rather, Parliament conferred a discretion on the police to retain data. The natural meaning of the word may in section 64(1A) is permissive not mandatory. There is no reason to suppose that Parliament must have intended its statutory purpose to be achieved in a disproportionate way so as to be incompatible with article 8: [23] [24], [88] [89]. The police were entrusted with setting out the precise means of achieving the statutory purpose: [26]. There is no reason in principle why the police, with the input of the Secretary of State, should be less well equipped than Parliament to create guidelines for the exercise of this power: [40] [44]. Accordingly, it is possible to read section 64(1A) in a way which is compatible with article 8 ECHR as interpreted in Marper ECtHR. A declaration of incompatibility is not appropriate and section 6(2)(b) of the HRA is not engaged: [35], [55], [69]. Lords Rodger and Brown dissent. They would have dismissed the appeals. In their view, the history shows that Parliament's purpose in enacting section 64(1A) was to ensure that in future samples taken from suspects would be retained indefinitely: [94] [97]. Therefore, the police had no choice but to retain the data: [108] [109]. In their view, it is not possible to interpret section 64(1A) in accordance with section 3 HRA: [115], [146] [147]. However, since the police could not have acted differently in substance, what they did and what they continue to do, falls within section 6(2)(a) or section 6(2)(b) HRA and is lawful: [119]. Appropriate relief The present intention of the government is to bring the new legislation into force later this year. In these circumstances, in relation to biometric data it is sufficient to grant a declaration under section 8(1) HRA that the present ACPO guidelines are unlawful because they are incompatible with the ECHR. Where Parliament is seised of the matter, it is not appropriate to make an order requiring a change in the legislative scheme within a specific period or an order requiring destruction of data: [45] [49], [73], [91] [92]. It is, however, open to ACPO to reconsider and amend the guidelines in the interim: [73], [81], [90]. Lord Rodger would have preferred to grant a declaration of incompatibility under section 4 HRA: [121]. In relation to the photographs of GC, in view of the manner in which the issue was raised in the Divisional Court and the consequent lack of any substantive judgment, the Supreme Court expresses no opinion on this part of the appeal: [50] [51].
The Respondent is a citizen of Jamaica. He arrived in the UK on 7 May 2010 on a one month visitors visa. On 14 October 2010 he applied for asylum on the ground that he is homosexual and feared persecution if he returned to Jamaica. On 20 October 2010, he was detained pending a decision on removal. This was done pursuant to a fast tracking procedure as Jamaica was on the list of states designated under s 94(4) of the Nationality, Immigration and Asylum Act 2002 (the Act). Jamaica was added to the s 94(4) list by article 3 of the Asylum (Designated State) Order 2003 (SI 2003/970). This was done pursuant to the Secretary of States power in s 94(5) of the Act as it was believed that the following conditions were met: (a) there is in general in that State or part no serious risk of persecution of persons entitled to reside in that State or part, and (b) removal to that State or part of persons entitled to reside there will not in general contravene the United Kingdoms obligations under the Human Rights Convention. Jamaicas inclusion on the s 94(4) list meant that asylum or human rights claims from individuals entitled to reside in Jamaica were required to be certified by the Secretary of State as clearly unfounded unless the Secretary of State was satisfied that this was not the case (s 94(3) of the Act). The effect of this was that appeals made by applicants against immigration decisions in relation to clearly unfounded claims would have to be brought from outside the UK (s 92 of the Act). The Respondents complaints that it was unlawful to detain him and that the fast tracking process was unsuitable for his case were rejected by the Secretary of State. As a result, on 15 November 2010 the Respondent issued a claim for judicial review seeking declarations on two grounds: (i) his detention was unlawful; and, (ii) the decision to include Jamaica on the list in section 94(4) of the Act was unlawful. On the same day, the Home Secretary refused the Respondents claim for asylum but did not certify it as clearly unfounded. This meant that he could appeal the decision whilst remaining in the UK. The Respondent was released from detention on 24 November 2010. On 4 February 2011, the First Tier Tribunal upheld his claim that he was homosexual and at real risk of persecution if returned to Jamaica. The Deputy High Court Judge, Mr Nicholas Paines QC, dismissed both of the Respondents grounds. The Court of Appeal allowed, by majority of two to one, the Respondents appeal on whether Jamaica should be designated under section 94(4). It held unanimously that his detention had been unlawful on other grounds. The Home Secretary appealed to the Supreme Court solely on whether Jamaica should be included in the section 94(4) list. The Supreme Court unanimously dismisses the appeal. Lord Toulson (with whom Lady Hale, Lord Sumption and Lord Carnwath agree) delivers the lead judgment. Lord Hughes concurs with the result but for different reasons. Lord Toulson (in the majority) reads s 94(5) of the Act as referring to countries where its citizens are free from any serious risk of systematic persecution either by the state or by non state agents which the state is unable or unwilling to control. The phrase in general differentiates persecution which occurs in the ordinary course of things from isolated incidents of persecution. It does not require the persecution to affect any particular percentage of the population [21]. Rather, the persecution must be a general feature of life in the country and apply to a recognisable section of the community. This reading is influenced by the fact that persecution within the Refugee Convention will often be directed towards minorities and that the majority of asylum and human rights claimants belong to minorities. Requiring the group persecuted to exceed a percentage threshold is open to several objections: there is no way of determining that threshold; it is hard to see why it should make a difference whether a group just exceeds or just falls below the threshold; and, there would be no way of obtaining reliable information about the size of many minority groups [22]. The leading authorities do not contend otherwise [13] [19]. Lord Toulson is not persuaded that it makes little or no difference to individuals whether their state is on the s 94(4) list. The purpose of designation is that applicants from those countries will normally be detained and fast tracked, as borne out by the facts of this case. Designation of a state changes the complexion of the analysis of the claim [23]. Lord Hughes (in the minority) agrees that it would be impossible to lay down a defined percentage of the population which needs to be at risk before there exists in general a serious risk of persecution. However, the Secretary of State should not be prevented from designating a State under s 94(4) of the Act simply because some form of grouping or a recognisable section of the community may suffer persecution when in general that State is free from persecution [30]. To bar designation where the risk is systemic, in the sense that it applies to members of an identifiable group, risks redefining the phrase in general and removes the intended flexibility on the part of the Secretary of State to make these complex decisions [34]. Nonetheless, in this case the risk to all who are homosexual, lesbian, bisexual or trans sexual can only properly be described as a general risk in Jamaica so that the appeal should be dismissed [36].
This appeal concerns PH, a young man with physical and learning disabilities, who was born in Wiltshire in 1986. He lacks capacity to decide for himself where he lives. Since 1991, PH has been living with foster parents in South Gloucestershire. In 1991 PHs parents moved away from Wiltshire to Cornwall. PH occasionally visited them there, including at the end of 2004 just before his eighteenth birthday. Since he turned eighteen, PH has lived in two care homes in Somerset. The cost of PHs care is currently estimated to be 80,000 per year for the rest of his life. There is no dispute that he is entitled to support. The issue is which local authority is responsible for providing PHs support South Gloucestershire, Cornwall, or Wiltshire? This depends, under sections 24(1) and 24(5) of the National Assistance Act 1948, on where PH was ordinarily resident immediately before he attained majority. Wiltshire Council arranged PHs foster placement under the Children Act 1989. Section 105(6)(c) provides that, in determining a childs ordinary residence for the purposes of the 1989 Act, there shall be disregarded any period in which the child lives in any place while he is being provided with accommodation by or on behalf of the local authority. At the time PH turned 18, the National Assistance Act 1948 section 21 obliged local authorities to arrange accommodation for people over eighteen with disabilities who need care and attention not otherwise available to them (the application of the 1948 Act has since been restricted to Wales). By section 24(5), a person provided with accommodation under the 1948 Act is deemed to continue to be ordinarily resident in the area in which he was ordinarily resident immediately before that accommodation was provided for him. Section 105(6)(c) and section 24(5) have been referred to as deeming or disregard provisions. In August 2011, the three local authorities jointly referred the question of PHs ordinary residence to the appellant Secretary of State for determination, under section 32(3) of the 1948 Act. The Secretary of State decided that Cornwall Council was responsible. He followed his own guidance on determining ordinary residence, which draw on two principal authorities: R v Barnet LBC, ex p Shah [1983] AC 309, and R v Waltham Forest, Ex p Vale (unreported, 11 February 1985). In Shah, the House of Lords held that ordinary residence connotes an abode voluntarily adopted for settled purposes. In Vale the High Court held that an adult woman whose disabilities meant she was incapable of choosing where to live had her ordinary residence with her parents, because that was her base. The Secretary of State applied this approach, which was challenged in this appeal. Cornwall Council judicially reviewed the Secretary of States decision. The High Court dismissed its challenge. The Court of Appeal disagreed, holding that PHs place of ordinary residence as at his eighteenth birthday was South Gloucestershire, and further that the deeming provisions did not apply to PH since each applied only for the purposes of their own Act. The Supreme Court allows the appeals by a majority of 4 1, and determines PHs ordinary residence at the relevant time to be Wiltshire. Lord Carnwath gives a judgment with which Lady Hale, Lord Hughes and Lord Toulson agree. Lord Wilson gives a dissenting judgment. Lord Carnwath considers that the Secretary of States reasons for selecting Cornwall, which started not from assessment of the duration and quality of PHs actual residence but from an attempt to ascertain his base by reference to his family relationships, cannot be supported. There is no suggestion that PHs brief periods of staying with his parents at holiday times could amount to ordinary residence. [49] Lord Carnwath further reasons that though attribution of responsibility to South Gloucestershire may fit the language of the statute, it runs directly counter to the statutes policy. The only connection with that county was PHs historic placement under a statute, the 1989 Act, which specifically excluded the placement from consideration as ordinary residence for the purposes of the 1989 Act. The policy in both the 1989 and 1948 Acts is that ordinary residence of a person provided with accommodation should not be affected, for the purposes of an authoritys responsibilities, by the location of that persons placement. The purpose of the deeming provisions in both Acts is that an authority should not be able to export its responsibility for providing accommodation by exporting the person who is in need of it. It would be undesirable if, despite the similarity and purpose of these provisions, there is a hiatus in the legislation. It could also have adverse consequences on local authorities willingness to receive children who need specialist care from another local authority. [52 55] Lord Carnwath notes that in construing section 24 of the 1948 Act, the statutory context is critical. The relevant provisions in each Act have the same function, namely allocating fiscal and administrative responsibility between local authorities. [57] PH was at the relevant time living somewhere he had been placed by a local authority under the 1989 Act. It would be wrong to interpret section 24 of the 1948 Act so as to regard PH as having been ordinarily resident in South Gloucestershire by reason of a form of residence whose legal characteristics are found in the 1989 Act. One of those characteristics is that the foster placement did not affect his ordinary residence under the 1989 Acts statutory scheme. [58 59] It follows that PHs placement in South Gloucestershire by Wiltshire is not to be regarded as changing his ordinary residence. Until he turned eighteen, for fiscal and administrative purposes his ordinary residence continued to be in Wiltshire, regardless of where they determined that he should live. [60] Therefore the appeal is allowed and in the declaration of the Court of Appeal references to South Gloucestershire are substituted for references to Wiltshire. [61] Lord Wilson, dissenting, reasons that at the relevant date PH and his family had all moved away from Wiltshire. [62] South Gloucestershire is the result that the law clearly compels on the established meaning of ordinary residence, though public policy militates against it. [65 66, 68] Though he did not adopt it voluntarily, PH was happy and settled there. [74] Parliament has not chosen to widen the provisions in the 1948 Act so as to disregard an adults previous placement as a minor under the 1989 Act. The majoritys analysis that the legal characteristics of a minors residence under the 1989 Act make it irrelevant to determining ordinary residence under section 24 of the 1948 Act makes the statutory disregards in section 105(6) of the 1989 Act and section 24(5) of the 1948 Act redundant. [70 71]
This appeal concerns, first, the meaning of the obligation imposed on the United Kingdom by the Habitats Directive, a European legislative instrument, to prohibit deliberate disturbance of certain species of bats. It concerns, secondly, the scope of the obligation in domestic legislation on planning authorities to have regard to the requirements of the Habitats Directive. Hampshire County Council, the Respondent in the appeal, granted planning permission on 29 July 2009 for a proposed three mile stretch of roadway to provide a rapid bus service between Fareham and Gosport in South East Hampshire. The Appellant, Mrs Morge, lives close by and objects to the scheme. The scheme, its supporters argue, will create a new and efficient form of public transport to the benefit of many residents, workers and visitors to the area. Environmental objections have arisen, however, on grounds that the proposed path of the busway runs along the path of an old railway line, which has become an ecological corridor for various flora and fauna. The planning application was submitted on 31 March 2009 and objected to by Natural England, the Governments adviser on nature conservation, in part because of their concerns about the impact of the development on bats. The Council responded by submitting an Updated Bat Survey (UBS), largely as a result of which Natural England in a letter of 17 July 2009 withdrew their objections. At a meeting of the Councils Planning Committee on 29 July 2009 planning permission was granted by a majority of six to five with two abstentions. The UBS recorded that no bat roosts were found on the site. The removal of trees and vegetation, however, would result in a loss of good quality bat foraging habitats. This would have a moderate adverse impact at local level on foraging bats for nine years, the impact thereafter reducing to slight adverse / neutral. In addition the busway would sever a bat flight path, increasing their risk of collision with buses. Mrs Morge challenged the permission on environmental grounds, including its impact on several species of European protected bats. The challenge failed before the High Court and Court of Appeal, but the Supreme Court granted the Appellant limited permission to appeal on two issues of general importance. The first is the level of disturbance required to engage the prohibition in article 12(1)(b) of the Habitats Directive on deliberate disturbance of the bat species in question. The second is the scope of the obligation in regulation 3(4) of Conservation (Natural Habitats etc.) Regulations 1994 on local authorities to have regard to the requirements of the Habitats Directive in deciding whether to grant planning permission, and whether the Council in this case complied with the obligation. The Supreme Court by a majority of 4 1 dismisses the appeal. Lord Brown gives the lead judgment for the majority, setting out the correct approaches to article 12(1)(b) of the Habitats Directive and regulation 3(4) of the 1994 Regulations, and finding that the Council complied with the obligation in regulation 3(4). Lord Kerr agrees with majority on the article 12(1)(b) issue but dissents on the regulation 3(4) issue. On the first issue, the Court held that certain broad considerations must govern the correct approach to article 12(1)(b) of the Habitats Directive. First, it is an article affording protection specifically to species and not to habitats. Secondly, the prohibition relates to the protection of species and not specimens of these species as in other articles. Thirdly, an assessment is needed of the nature and extent of the negative impact of the activity upon the species and a judgment as to whether that is sufficient to constitute disturbance of the species. Fourthly, it is implicit in the article that activity during the period of breeding, rearing, hibernation and migration is more likely to have a sufficient negative impact on the species to constitute disturbance: [19]. The European Commissions guidance document is of assistance. It provides illustrations at either end of the spectrum within which the question arises as to whether any given activity constitutes disturbance, and explains that every case has to be judged on its own merits. Two further considerations are also of relevance. First, account should be given to the rarity and conservation status of the species in question and the impact of the disturbance on the local population of the species. Secondly, disturbance includes in particular that which is likely to impair an animals ability to survive, breed, rear its young, hibernate or migrate, and that which is likely to affect the local distribution or abundance of the species: [20] [23]. On the second issue, the majority held that the correct approach to regulation 3(4) is that planning permission should ordinarily be granted save only in cases where the Planning Committee conclude that the proposed development would both be likely to offend article 12(1) and be unlikely to be licensed pursuant to the powers to derogate from the requirements of article 12(1). Where Natural England express themselves satisfied that a proposed development will be compliant with article 12(1), the planning authority are entitled to presume that that is so. In the present case the Planning Committee had sufficient regard to the requirements of the Directive so as to satisfy regulation 3(4): the Committee knew that Natural Englands objection had been withdrawn and that necessary measures had been planned to compensate for the loss of foraging: [30]. Lord Kerr, dissenting on this second issue, observed that Natural England had expressed no explicit opinion on the question of whether there would be violation of article 12(1). Even if it could be presumed that Natural Englands view was of no violation, that did not affect the clear indication in the letter of 17 July 2009 that the matter was still one which required the Committees attention. If Natural England had unambiguously expressed a view of no violation and the Committee had been informed of this, it may well have been unnecessary for the Committee to go behind that view. But absent such a statement, they were bound to make the judgment for themselves, something which they did not do. Lord Kerr would have quashed the planning permission on this basis: [75] [84].
The principal issue on this appeal concerns the meaning of the word makes in section 60(1)(a) of the Patents Act 1977 (the 1977 Act), which provides that a person infringes a patent for a particular product if he makes the product without the consent of the patentee. This issue arises in respect of European Patent (UK) 0 734 967 (the Patent), of which Protechna S.A. (Protechna) is the proprietor. Claim 1 of the Patent (the Claim) extends to certain aspects of a complete intermediate bulk container (IBC). An IBC is a large container used by suppliers of liquids (fillers), for the transport of a wide range of liquids to a so called end user. IBCs of a two part construction consist of a metal cage into which a large plastic container (or bottle) is fitted. Often, the bottle cannot be reused, because it contains residues of a toxic liquid or because it has been physically damaged. The inventiveness of the Patent lies in the idea of flexible weld joints to the cage, to increase its strength and durability, and in the idea of introducing a dimple on either side of the weld and a central raised portion. The description of the Patent acknowledges that the bottle is exchangeable (i.e. replaceable). The cage has a life expectancy on average five or six times longer than a bottle, which is why so called reconditioners engage in re bottling or cross bottling used IBCs. In either case, the old bottle is removed, any damage to the cage is repaired, and a new bottle is fitted within the cage. Re bottling involves replacing the bottle with a fresh bottle from the original manufacturer, whereas cross bottling involves replacing the bottle with a bottle from a different source. After re bottling or cross bottling an IBC, the reconditioner offers the reconditioned product to fillers on the market, in competition with the products of original manufacturers, and of other reconditioners. Schtz (U.K.) Limited (Schtz) is the exclusive licensee of Protechna, and the leading manufacturer of rigid composite IBCs, in the United Kingdom. Werit UK Limited (Werit) sells bottles (Werit bottles) for IBCs to a reconditioner, Delta Containers Limited (Delta). Delta acquires discarded IBCs originally put on the market by Schtz (Schtz IBCs), replaces the original bottles (Schtz bottles) with Werit bottles, and then offers these cross bottled IBCs on the market. These cross bottled IBCs are therefore in competition with the original Schtz IBCs. Schtz objected to Deltas cross bottling activities, and issued proceedings against Werit, seeking relief on the ground that Werit infringed the Patent. It is common ground that, if Delta thereby infringes the Patent, Werit does so. Two issues arising from those proceedings are relevant to the present appeal. The first issue is whether Delta infringed the Patent by mak[ing] the article claimed by the Claim, contrary to section 60(1)(a) of the 1977 Act. The second issue, which arises only if it is found that Delta infringes the Patent, concerns costs sanctions in such proceedings under section 68 of the 1977 Act (the section 68 issue). At first instance, Floyd J held that Deltas cross bottling activities do not amount to making the patented product, on the ground that the inventive concept of the Claim is wholly embodied in the Schtz cage. The Court of Appeal considered that it was inappropriate to determine the issue by reference to the inventive concept, and held that Deltas cross bottling activities do amount to making the patented product, on the basis that the Schtz IBC ceases to exist when the Schtz bottle is removed, and all that remains at that stage is merely an important component from which a new IBC could be made. The Supreme Court unanimously allows Werits appeal and holds that Delta did not make the patented article contrary to section 60(1)(a) of the 1977 Act. Lord Neuberger gives the judgment of the Court. This decision renders Werits appeal on the section 68 issue academic, but because the issues that appeal raises were fully argued, Lord Neuberger provides some guidance on how the costs sanctions under section 68 of the 1977 Act work [80] [107]. The central issue is whether Delta makes a patented article when it removes a damaged Schtz bottle from a Schtz cage, and replaces it with a Werit bottle. The word makes does not have a precise meaning. It must be interpreted contextually, by reference to the facts of the particular case, and in a practical way, bearing in mind that the precise scope of a claim may be a matter almost of happenstance. It must also be given a meaning which, as a matter of ordinary language, it can reasonably bear. There is a need for clarity and certainty for patentees and others, and for those advising them. It should also be borne in mind that the word makes applies to patents for all sorts of product. Moreover, there is a need to protect the patentees monopoly while not stifling reasonable competition [26] [29]. Therefore, it will inevitably be a matter of fact and degree in many cases whether an activity involves making an article [26],[57],[58],[72],[78]. Observations about the meaning of make in a different legal or factual context from that under consideration should be approached with caution because of the somewhat slippery nature of the meaning of the word, and the very important role which context plays in determining whether a particular activity involves making an article [53]. The mere fact that an activity involves replacing a constituent part of an article does not mean that the activity involves the making of a new article, rather than constituting a repair of the original article. One must, however, avoid simply contrasting making and repairing, not least because these concepts may well overlap. That said, it may sometimes be useful to consider whether the alleged infringer is repairing rather than making the article, because repair of an item frequently involves replacement of one or some of its constituents [48] [50]. It is both legitimate and helpful to consider the question whether the bottle is such a subsidiary part of the patented article that its replacement, when required, does not involve making a new article [61]. While undoubtedly an essential and physically large part of the patented article, four factors indicate that the bottle can fairly be said to be a relatively subsidiary part of the IBC, when that article is viewed as a whole [64]. (i) The bottle has a significantly lower life expectancy than the cage [65] [66]. (ii) The bottle does not include any aspect of the inventive concept of the Patent [67] [69]. (iii) The bottle is a free standing item of property [70]. (iv) The damaged free standing bottle is simply replaced within the metal cage, which contains the inventive concept, and the metal cage is repaired if necessary [71]. The question whether the end user is paid for a used IBC could be of relevance [74], although there was no evidence which can fairly enable assessment of this factor [75], and it is very unlikely that any such evidence would have affected the outcome [76]. This case represents a classic example of identifying the various factors which apply on the particular facts, and, after weighing them all up, reaching a conclusion on infringement. Given that (a) the bottle (i) is a freestanding, replaceable component of the patented article, (ii) has no connection with the claimed inventive concept, (iii) has a much shorter life expectancy than the other, inventive, component, (iv) cannot be described as the main component of the article, and (b) apart from replacing it, Delta does no additional work to the article beyond routine repairs, Delta does not make the patented article [78].
This appeal arises out of the grounding of the Ocean Victory (the vessel). By a demise charterparty the vessels owners, Ocean Victory Maritime Inc. (the owners) chartered the vessel to Ocean Line Holdings Ltd (the demise charterer) on the widely used Barecon 89 form, as amended [1]. It provided for the demise charterers to procure insurance for the vessel at their expense against marine, war and protection and indemnity risks for the joint interest of themselves and the owners [93]. The demise charterer time chartered the vessel to China National Chartering Co Ltd (Sinochart), who sub chartered the vessel to Daiichi Chuo Kisen Kaisha (Daiichi). The demise charter and both time charters contained the same undertaking to trade the vessel between safe ports [1 2]. In September 2006, Daiichi gave the vessel instructions to load at Saldanha Bay in South Africa and discharge at the port of Kashima in Japan [3]. The quay at Kashima was vulnerable to long waves which can result in a vessel being required to leave the port. The only route in and out of Kashima is by a narrow channel, the Kashima Fairway, which is vulnerable to northerly gales [3, 9]. There is no meteorological reason why these two events should occur at the same time [9]. However, on 24 October 2006, the vessel sought to leave the port due to long waves but, due to a severe northerly gale, was unable to safely navigate the fairway and was grounded, becoming a total loss [1, 4]. Gard Marine & Energy Ltd (Gard), one of the vessels hull insurers, took assignments of the rights of the owners and the demise charterer in respect of the grounding and total loss. It brought a claim against Sinochart (which Sinochart passed on to Daiichi) for damages for breach of the charterers undertaking to trade only between safe ports [5]. In the High Court, Teare J held that there had been a breach of the safe port undertaking. The combination of the two weather conditions was not an abnormal occurrence, even though the coincidence of the conditions was rare, because both conditions were physical characteristics of the port. The Court of Appeal allowed Daiichis appeal on this issue (issue 1). The Court of Appeal also held that, due to the joint insurance provisions, the owners were not entitled to claim against the demise charterparty in respect of insured losses (issue 2), reversing Teare Js finding on this issue. Gard appealed on both these issues [7]. In addition, the Supreme Court considered whether Daiichi would be entitled to limit its liability for loss of the ship pursuant to the 1976 Convention on Limitation of Liability for Maritime Claims (the Convention) enacted into English law by the Merchant Shipping Act 1995. This issue was not considered by the courts below as it was accepted that they were bound by the decision of the Court of Appeal in The CMA Djakarta [2004] 1 Lloyds Rep 460 which had held that such limitation was not possible (issue 3) [58 59]. The Supreme Court unanimously dismisses the appeal on the ground that there was no breach of the safe port undertaking. Lord Clarke gives the lead judgment, with which all the justices agree on issue 1 and on issue 3; if there had been a breach of the safe port undertaking Daiichi would not have been entitled to limit its liability under the Convention. In respect of issue 2, Lord Toulson and Lord Mance, in judgments with which Lord Hodge concurs, agree with the Court of Appeal, that the joint insurance would have precluded any claim by owners against the demise charterer, or therefore by the latter down the line. Lord Clarke and Lord Sumption take the opposite view. It was common ground that the test for breach of the safe port undertaking is whether the damage sustained by the vessel was caused by an abnormal occurrence [10], that the date for judging the breach of the safe port promise is the date of nomination of the port and the promise is a prediction about the safety of the port when the ship arrives in the future. [13, 24]. Abnormal occurrence should be given its ordinary meaning; something rare and unexpected that the notional charterer would not have in mind [16, 25, 27]. The test is not whether the events which caused the loss are reasonably foreseeable. The fact that the combination of long waves and northerly gales was theoretically foreseeable does not make it a normal characteristic of the port. Regard must be had to the reality of the situation in the context of all the evidence to ascertain whether the particular event was sufficiently likely to occur to have become an attribute of the port [14, 32, 37 40]. Teare J erred in failing to answer the unitary question of whether the simultaneous coincidence of the long waves and gales was an abnormal occurrence [34]. No vessel in the ports history had risked damage in the quay due to long waves at the same time the Kashima Fairway was unnavigable because of gale force winds. There was also evidence regarding the exceptional nature of the rapid development, duration and severity of the storm. On the basis of this evidence the conditions in question were an abnormal occurrence and there was therefore no breach by Daiichi of the safe port undertaking [41 45]. Assuming there had been a breach of the safe port warranty, Gard claims to be able to recover the insured value of the vessel from the time charterers as the demise charterers assignee on the basis that the demise charterer is liable to the owners for breach of its safe port undertaking, and is therefore entitled to recover the same sum from the time charterer [93, 138]. Lord Toulson, Lord Mance and Lord Hodge conclude that the provisions of clause 12 of the demise charter, which provide for joint insurance and a distribution of insurance proceeds, preclude such a claim. It is well established that co insureds cannot claim against each other in respect of an insured loss. Clause 12 provides a comprehensive scheme for an insurance funded result in the event of loss of the vessel by marine risks. The safe port undertaking does not alter this scheme. [139 146, 114 122]. Lord Sumption agrees that co insureds cannot claim against each other in respect of an insured loss. Whether this is because liability to pay damages is excluded by the terms of the contract, or because as between the co insureds the insurers payment makes good any loss and satisfies any liability to pay damages will depend on the terms of the contract [99 100]. In this case clause 12 of the demise charter envisages the latter [101 105]. Lord Clarke agrees with Lord Sumption on this issue [48 57]. Had there been a breach of the safe port warranty, Daiichi would not have been entitled to limit its liability under the Convention. Article 2(1)(a) of the Convention allows owners or charterers to limit liability for loss or damage to property occurring on board the ship or in direct connexion with the operation of the ship [61]. The court agrees with the Court of Appeal in The CMA Djakarta that giving the words their ordinary meaning, this category of claim does not include loss or damage to the ship itself [79 81]. This interpretation is supported by Articles 9 to 11 of the Convention [82 84] and there is nothing in the travaux prparatoires which supports another conclusion [86].
This appeal is concerned with the entitlement of a taxpayer to deduct input value added tax (VAT) and claim repayment of surplus input VAT. It concerns the interpretation of articles 167 and 168(1) of Council Directive (EC) 2006/112/EC of 28 November 2016 on the common system of value added tax (the Principal VAT Directive) and the case law of the Court of Justice of the European Union (CJEU) relating to those articles. In short, the question is whether a taxpayer can deduct as input tax the VAT which it has incurred in purchasing entitlements to an EU farm subsidy, the Single Farm Payment (SFP). The taxpayer has used those entitlements to annual subsidies over several years and intends to use money resulting from the receipt of those subsidies to fund its current and future business activities, which currently involve only taxable supplies. Frank A Smart & Son Ltd (FASL) is a Scottish company which carries on a farming business in Aberdeenshire. FASL is wholly owned by Mr Frank Smart, who is its sole director. Mr Smart and his wife are the partners in a partnership which owns Tolmauds Farm, which it leases to FASL. FASL received SFPs from the Scottish Government. SFPs were agricultural subsidies which between 2005 and 2014 were paid to farmers who met certain requirements. When the scheme was initiated, farmers in the United Kingdom were allocated initial units of entitlement to single farm payments (SFPEs) for no consideration. The SFPEs were tradeable and a market in them developed. FASL took advantage of the market in SFPE units to accumulate a fund for the development of its business. It spent about 7.7m between 2007 and 2012 on purchasing 34,377 SFPE units in addition to its initial allocation of 194.98 units for Tolmauds Farm. In this period FASL paid VAT on the SFPE units which it purchased and it has sought to deduct or claim repayment of that VAT as input tax. HMRC refused to allow FASL to deduct VAT of 1,054,852.28 in its returns between December 2008 and June 2012. FASL appealed to the First tier Tribunal (FTT). The FTT allowed the appeal. The FTT found that, when it purchased the SFPE units, FASL intended to apply the income which it received from the SFPs to pay off its overdraft and to develop its business operations. FASL was also contemplating three principal developments of its business, including establishing a windfarm, constructing further farm buildings and purchasing neighbouring farms. Based on those findings, the FTT concluded that the funding opportunity afforded by the purchase of the SFPE units did not form a separate business activity of FASL but was a wholly integrated feature of the farming enterprise. HMRC appealed to the Upper Tribunal (Lord Tyre), which refused the appeal. HMRC appealed to the Inner House of the Court of Session. An Extra Division of the Inner House (Lord Menzies, Brodie and Drummond Young) dismissed the appeal. HMRC appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Hodge gives the sole judgment with which the other Justices agree. The Supreme Court considered the Principal VAT Directive [11 16], the Value Added Tax Act 1994 [17 19] and the relevant CJEU case law [25 64]. It derived the following propositions [65]: (1) As VAT is a tax on the value added by the taxable person, the VAT system relieves the taxable person of the burden of VAT payable or paid in the course of that persons economic activity and thus avoids double taxation. (2) There must be a direct and immediate link between the goods and services which the taxable person has acquired (in other words the particular input transaction) and the taxable supplies which that person makes (in other words its particular output transaction). This link gives rise to the right to deduct. The needed link exists if the acquired goods and services are part of the cost components of that persons taxable transactions which utilise those goods and services. (3) Alternatively, there must be a direct and immediate link between those acquired goods and services and the whole of the taxable persons economic activity because their cost forms part of that businesss overheads and thus a component part of the price of its products. (4) Where the taxable person acquires professional services for an initial fund raising transaction which is outside the scope of VAT, that use of the services does not prevent it from deducting the VAT payable on those services as input tax and retaining that deduction if its purpose in fund raising, objectively ascertained, was to fund its economic activity and it later uses the funds raised to develop its business of providing taxable supplies. The same may apply if an analogous transaction involving the sale of shares is classified as an exempt transaction. (5) Where the cost of the acquired services, including services relating to fund raising, are a cost component of downstream activities of the taxable person which are either exempt transactions or transactions outside the scope of VAT, the VAT paid on such services is not deductible as input tax. Where the taxable person carries on taxable transactions, exempt transactions and transactions outside the scope of VAT, the VAT paid on the services it has acquired has to be apportioned. (6) The right to deduct VAT as input tax arises immediately when the deductible tax becomes chargeable. As a result, there may be a time lapse between the deduction of the input tax and the use of the acquired goods or services in an output transaction. Further, if the taxable person acquired the goods and services for its economic activity but, as a result of circumstances beyond its control, it is unable to use them in the context of taxable transactions, the taxable person retains its entitlement to deduct. (7) The purpose of the taxable person in carrying out the fund raising is a question of fact which the court determines by having regard to objective evidence. The existence of a link between the fund raising transaction and the persons taxable activity is to be assessed in the light of the objective content of the transaction. The ultimate question is whether the taxable person is acting as such for the purposes of an economic activity. This is a question of fact which must be assessed in the light of all the circumstances of the case, including the nature of the asset concerned and the period between its acquisition and its use for the purposes of the taxable persons economic activity. In light of the foregoing, the Court considers that FASL, when it incurred the costs of the SFPE units, was acting as a taxable person because it was acquiring assets in support of its current and planned economic activities, namely farming and the windfarm. On that basis, FASL was entitled to an immediate right of deduction of the VAT paid on the purchase of the SFPE units and is entitled to retain that deduction or repayment so long as it uses the SFPs which it received as cost components of its economic activities. Moreover, on the facts founds, FASL does not carry out and does not propose to carry out downstream non economic activities or exempt transactions. Therefore, no question of apportionment arises [68].
Until 2006, pension schemes could be approved by the Inland Revenue (now HMRC). Taxpayers who paid contributions into approved pension schemes received relief from income tax on their contributions, but were subject to certain restrictions on the application of the fund. In particular, with limited exceptions assets could only be withdrawn from an approved pension scheme on retirement (or death, if earlier), and then had to be used to purchase an annuity. A practice arose under which small pension schemes would gain approval and the consequent tax advantages, then be managed in such a way as to lose their approval, so that the scheme funds could be withdrawn free of the restrictions. Parliament enacted anti avoidance legislation to prevent this practice. The Income and Corporation Taxes Act 1988 (as amended) sets out three scenarios where a schemes approval may cease. Approval is withdrawn automatically where the scheme fails to comply with regulations, in which case its approval automatically ceases 36 months after the introduction of the regulations (s 591A(2), a transitional provision), and immediately after an unapproved and unauthorised alteration is made to the scheme (s 591B(2)). Where the Revenue considers that the facts cease to warrant the continuance of approval, the Revenue may also withdraw approval by notice from a date specified in the notice, which must not be earlier than the date when the facts first ceased to warrant the continuance of approval (s 591B(1)). Under s 591C of the Act, once approval ceases to have effect, the scheme is liable to a 40% tax charge on an amount equal to the value of the scheme assets immediately before the date of the cessation of approval of the scheme. The question arising in this appeal is when the charge is incurred where approval is withdrawn following the giving of notice by the Revenue under s 591B(1). In that case, does approval cease to have effect at the date of the notice itself, or at the date from which the facts of the scheme cease to warrant the continuance of approval, as specified in the notice? The Revenue notified the administrator of the Appellant pension scheme on 19 April 2000 that approval was withdrawn under s 591B(1) with effect from 5 November 1996. The Revenue says that the 40% tax charge fell to be assessed in the 2000/1 tax year when the withdrawal was notified. The taxpayer says that it fell to be assessed in the 1996/7 tax year when the scheme ceased to be eligible and withdrawal of approval took effect under the Revenues notice (and therefore that the Revenue is out of time to impose the assessment). The First tier tribunal, Upper Tribunal and Court of Appeal all considered that the tax charge fell in the 2000/1 tax year. The Supreme Court allows the appeal by a 3:2 majority. Lord Sumption gives the leading judgment. Lord Neuberger agrees with Lord Sumption and sets out his own reasoning. Lord Reed agrees with both Lord Sumption and Lord Neuberger, and again sets out his own reasoning. Lord Hodge and Lord Carnwath give dissenting judgments. The charge is assessed on a notional profit or gain accruing immediately before the cessation of approval under s 591C(2). [9] The parties correctly agreed that the date of cessation of approval, immediately before which the fund is valued, is the date specified in the notice. The conditions for liability to the tax charge in s 591C(4) (6A) only make sense on the footing that the cessation of the approval of the scheme is the effective date of the withdrawal of the approval and not the date of the notice itself. [11, 29] This is also the outcome which makes most sense as a matter of language and of principle: it avoids double taxation, and ensures that the fund is valued while it is still intact. [48] The words cessation of approval in s 591C(2) mean the same thing as the words ceases to have effect in s 591C(1). The date of cessation of approval is obvious in the case of automatic withdrawal under ss 591A(2) and 591B(2): it is the date when the scheme ceases to qualify for approval. The functional equivalent in the case of withdrawal by notice under s 591B(1) is the date specified in the Revenues notice. This is the natural result of the language of these provisions, and also reflects their common purpose. [10, 50] This is confirmed by s 591D(7), which equates approval of the scheme being withdrawn with its ceasing to have effect and cessation of approval. [13, 50] Lord Neuberger notes that as a general proposition, the use of two different expressionsan approval [ceasing] to have effect in s 591C(1), and the cessation of the approval in s 591C(2)indicates an intention that the expressions should have different meanings; however, that presumption is rebutted by s 591D(7). [28, 30] The majoritys analysis is supported by s 61 of the Finance Act 1995 (introducing ss 591C and D into the 1988 Act), which presupposes that the date of the notice and the date of cessation of approval may be different. [12, 33] The result is therefore to expose the taxpayer to retrospective assessment and to the payment of interest from the earlier date. Per Lord Sumption [15 20], this is not anomalous, but occurs whenever tax is assessed in arrears, and amounts simply to a recognition of facts which already existed; per Lord Neuberger [32], retroactivity is inherent in any case where a notice is served under s 591B(1), and it is consistent that the valuation of the assets and the charge to tax should take place at the same date; and per Lord Reed [52] the charge is not truly retrospective, because it involves the recovery of tax forgone at an earlier date in reliance upon an expectation as to the future management of the scheme which was not fulfilled, and it is legitimate to charge interest from the earlier date because the taxpayer has had the use of the money for that period. The Revenues concern that it will often take more than the six year time limit to identify abusive schemes and issue the requisite notice is better addressed through the Revenues power to make regulations requiring the provision of information relating to any approved scheme; accepting the Revenues argument would effectively mean that there would be no time limit and that it could choose the chargeable period at its discretion. [21] Lord Hodge, dissenting, considers that s 591C(2) specifies the rate of the charge by reference to the value of the assets immediately before the cessation of approval of the scheme, but makes no statement as to the tax year in which that charge is to fall. [75] He emphasises that clear and positive words are needed to justify the imposition of retrospective tax and is not satisfied that s 591D(7) contains such words, particularly in light of the different conclusion reached by the lower courts. [72 73, 76] Rather, s 591D(7) shows that the words approval of a scheme ceasing to have effect in s 591C(1) look to the process by which withdrawal occurred, namely the giving of the notice. [77] The administrator of a pension scheme may, as in this case, be unaware of the circumstances which later cause the Revenue to withdraw approval of their scheme, and it would be unfair retroactive taxation to impose a liability in interest for unpaid tax on the scheme administrator in such circumstances. [79] The majoritys other points do not provide the needed clarity. [80 84] Lord Carnwath, agreeing with Lord Hodge, considers that the s 591C(1) charging provision unequivocally provides that an approval ceases to have effect when it is withdrawn by notice and so the charge arises in the year when the notice is served. [87] Section 591D(7) provides no principled basis for rewriting it. [88]
This appeal concerns the compatibility of the use in a criminal trial of evidence obtained by a so called paedophile hunter (PH) group with the accused persons rights under article 8 of the European Convention on Human Rights (the ECHR). Article 8 provides that everyone has the right to respect for his or her private life and correspondence. PH groups impersonate children online to lure persons into inappropriate communications and provide the resulting material to the police. An adult member of a PH group, acting as a decoy, created a fake profile on a dating application using a photograph of a boy aged approximately 13 years old. The appellant entered into communication with the decoy, who stated that he was 13 years old. The appellant sent the decoy a sexual image and also arranged a meeting. At the meeting, the appellant was confronted by members of the PH group who remained with him until the police arrived. Copies of the appellants communications with the decoy were provided to the police. The respondent, as public prosecutor, charged the appellant with attempts to commit: (i) the offence of attempting to cause an older child (i.e. a child between 13 and 16 years old) to look at a sexual image, for the purposes of obtaining sexual gratification, contrary to section 33 of the Sexual Offences (Scotland) Act 2009 (the 2009 Act); (ii) the offence of attempting to communicate indecently with an older child, contrary to section 34 of the 2009 Act; and (iii) the offence of attempting to meet with a child for the purpose of engaging in unlawful sexual activity, contrary to section 1 of the Protection of Children and the Prevention of Sexual Offences (Scotland) Act 2005 (together, the charges). The appellant objected to the admissibility of the evidence sought to be relied upon by the respondent on the basis that it was obtained covertly without authorisation under the Regulation of Investigatory Powers (Scotland) Act 2000 and without authorisation or reasonable suspicion of criminality in violation of his rights under article 8. These objections were dismissed and the appellant was convicted of the charges. The appellant appealed against his conviction to the High Court of Justiciary, which refused the appeal and granted the appellant permission to appeal to the Supreme Court on two compatibility issues, which arise in criminal proceedings over whether a public authority has acted in a way that is unlawful under section 6(1) of the Human Rights Act 1998. The Supreme Court unanimously dismisses the appeal. Lord Sales gives the judgment, with which all members of the Court agree. The appellant appeals on two issues: (1) whether, in respect of the type of communications used by the appellant and the PH group, article 8 rights may be interfered with by their use as evidence in a public prosecution of the appellant for a relevant offence; and (2) the extent to which the obligation on the state, to provide adequate protection for article 8 rights, is incompatible with the use by a public prosecutor of material supplied by PH groups in investigating and prosecuting crime [11]. On the first issue, the appellant submits that there was an interference with the appellants rights to respect for his private life and his correspondence under article 8(1), which required the respondent to show that such interference was justified under article 8(2) [26]. The court holds that there was no interference with those rights at any stage because: (i) the nature of the communications rendered them incapable of being worthy of respect under article 8; and (ii) the appellant had no reasonable expectation of privacy in relation to the communications [29] [31]. It is implicit in article 8(1) that the protected features of private life and correspondence must be capable of respect within the scheme of values the ECHR exists to protect and promote. States party to the ECHR have a special responsibility to protect children against sexual exploitation by adults [32] [33]. Here, in the absence of any state surveillance, and where the issue is the balance of the interests of a person engaging in such conduct and the children who are the recipients of the relevant communications, the reprehensible nature of the communications means they do not attract protection under article 8(1) [40]. The interests of children have priority over any interest a paedophile could have in being allowed to engage in criminal conduct. Further, the prohibition of the abuse of rights in article 17 of the ECHR supports the conclusion that the criminal conduct at issue in this case is not capable of respect for the purposes of article 8(1) [41] [43]. An important indication of whether the right to respect for private life and correspondence is engaged is whether the individual had a reasonable expectation of privacy in relation to those communications, which is an objective question [51] [55]. The appellants communications were sent directly to the decoy. There was no prior relationship between the appellant and recipient from which an expectation of privacy might be said to arise. Requests made by the appellant to the decoy to keep the communications private did not establish a relationship of confidentiality. Furthermore, the appellant believed he was communicating with a 13 year old child, who it was foreseeable might share any worrying communications with an adult [56]. The appellant may have enjoyed a reasonable expectation of privacy so far as the possibility of police surveillance or intrusion by the wider public are concerned, but not in relation to the recipient [58]. Once the evidence had been passed on to the police, the appellant had no reasonable expectation that either the police or the respondent should treat them as confidential. Again, under the scheme of the ECHR, the effective prosecution of serious crimes committed in relation to children is part of the regime of deterrence a state must have in place [59]. On the second issue, the state had no supervening positive obligation to protect the appellants interests that would prevent the respondent making use of the evidence to investigate or prosecute the crime. On the contrary, the relevant positive obligation on the respondent was to ensure that the criminal law could be applied effectively to deter sexual offences against children. Article 8 has the effect that the respondent should be entitled to, and might indeed be obliged to, make use of the evidence in bringing a prosecution against him [64].
These appeals raise questions of some significance arising out of the interrelationship of the statutory schemes relating to the protection of employees pensions and to corporate insolvency. In order to protect employees from the adverse consequences of an under funded occupational pension scheme, the Pensions Act 2004 (the 2004 Act) introduced a financial support direction (FSD) regime. This enables the Pensions Regulator in specified circumstances (i) to impose, by the issue of an FSD to some or all of the other group companies (known as targets), an obligation to provide reasonable financial support to the under funded scheme of the service company or insufficiently resourced employer, and (ii) to deal with non compliance with that obligation by imposing, through a Contribution Notice (a CN), a specific monetary liability payable by a target to the trustees. Many UK registered members of the Lehman group of companies and of the Nortel group of companies have gone into insolvent administration. One of those Lehman group companies entered into service contracts with, and ran a pension scheme for the benefit of, employees who worked for other group members. The Nortel group included a company which had a pension scheme, and which was insufficiently resourced to fund that scheme. The pension scheme (the Scheme) in each case was a final salary scheme, which appears to be, and to have been for some time, in substantial deficit. The Pensions Regulator subsequently initiated machinery under the 2004 Act to require certain other group members the target companies to provide financial support for the Scheme. That machinery has been held up so it can be decided how the administrators of a target company should treat that companys potential liability under the FSD regime (in due course the liability under a CN) in a case where the FSD is not served until after the company has gone into administration (or into insolvent liquidation). Specifically, would the liability under such a requirement rank (a) as an expense of the targets administration, (b) pari passu (i.e. equally) with the target companies other unsecured creditors, or (c) as neither? Under option (a) the liability would rank ahead of the unsecured creditors, and may well be paid in full; under option (b) it would rank equally with those creditors; under option (c) it would rank behind them, and would probably be worthless. Briggs J and the Court of Appeal concluded that option (b) was not open to them, and preferred option (a) to option (c). The Supreme Court considers option (b) to be correct, and unanimously allows the appeals to the extent of declaring that a targets liability under the FSD regime, arising pursuant to an FSD issued after the company has gone into administration, ranks as a provable debt of the company, and does not rank as an expense of the administration. Lord Neuberger gives the main judgment of the Court, with which Lord Mance, Lord Clarke and Lord Toulson agree. Lord Sumption gives a short concurring judgment, with which Lord Mance and Lord Clarke agree. The potential liability as a result of an FSD issued after the commencement of an administration or an insolvent liquidation (an insolvent event) can constitute a provable debt within rule 13.12 of the Insolvency Rules 1986 (SI 1925/1986) (the Insolvency Rules). Whilst the potential FSD regime liabilities in the present cases do not fall within rule 13.12(1)(a) [68] [71], they fall within rule 13.12(1)(b) [83]. It is common ground that if a CN had been issued in respect of a target before an insolvent event, it would give rise to a provable debt. The courts below considered that, if a CN were issued after an insolvent event, it would give rise to a provable debt if it was based on an FSD issued before the insolvent event. It appears somewhat arbitrary that the characterisation and treatment of the liability under the FSD regime should turn on when the FSD or CN happens to have been issued, if it is based on a state of affairs which existed before the insolvent event [59]. The courts below felt constrained by a consistent line of authority from reaching the conclusion the Supreme Court has reached, although it appears that they would have so held if they had felt able to do so [56]. These earlier authorities can be overruled: the judgments are very short of reasoning, are inconsistent with another line of authority, and were decided at a time when the legislature and the courts were less anxious than currently for an insolvency to clear all the liabilities of a bankrupt (as they were all concerned with individual insolvencies) [87] [94]. There is no doubt that the liability which is imposed on a target on the issuing of an FSD after an insolvent event is a liability for the purposes of rule 13.12(1)(b), as it is a liability under an enactment within rule 13.12(4). The question is, however, whether it can be said to be a liability which arose by reason of any obligation incurred before the insolvent event [72]. That issue centres on the meaning of the word obligation in rule 13.12(1)(b) [74]. At least normally, in order for a company to have incurred a relevant obligation under rule 13.12(1)(b), it must have taken, or been subjected to, some step or combination of steps which (a) had some legal effect (such as putting it under some legal duty or into some legal relationship), and which (b) resulted in it being vulnerable to the specific liability in question, such that there would be a real prospect of that liability being incurred. If these two requirements are satisfied, it is also relevant to consider (c) whether it would be consistent with the regime under which the liability is imposed to conclude that the step or combination of steps gave rise to an obligation under rule 13.12(1)(b) [77]. In these appeals, all these requirements are satisfied, and accordingly the relevant obligation arose before the target companies went into administration. Given that the potential FSD liability in each of these cases is a provable debt within rule 12.3 of the Insolvency Rules, and therefore it would not be an expense, it is strictly unnecessary to consider whether the liability under an FSD served after an insolvent event would be a liquidation expense, if, as the courts below held, it was not a provable debt [97]. However, given that this issue was fully debated before the Court, and is one of some potential importance, the Court concludes that, if the liability did not rank as a provable debt, it would not count as an expense of the administration [98] [114]. The Court also concludes that if it had taken a different view on the provable debt issue, it would not have held that it had a residual discretion to direct the administrator of a target company to accord to the potential liability under the FSD regime a higher ranking than it would be given under the relevant legislation [115] [127]. Lord Sumption adds some observations about the limitations on what constitutes an obligation incurred for the purpose of rule 13.12(1)(b) of the Insolvency Rules [129] [136].
The central issue on this appeal is how the governing law of an arbitration agreement is to be determined when the law applicable to the contract containing it differs from the law of the seat of the arbitration, the place chosen for the arbitration in the arbitration agreement. On 1 February 2016, a power plant in Russia was severely damaged by fire. The appellant Russian company (Chubb Russia) had insured the owner of the power plant (the owner) against such damage. The owner had entered into a contract with another company (the head contractor), in relation to construction work to be carried out at the plant. In turn, the head contractor engaged the respondent (Enka), a Turkish engineering company, as a sub contractor in the construction project. The contract made between the head contractor and Enka included an agreement that disputes would be determined through arbitration proceedings in London. In May 2014, the head contractor transferred its rights and obligations under the contract to the owner. After the fire in February 2016, Chubb Russia paid an insurance claim by the owner and, by doing so, assumed any rights of the owner to claim compensation from third parties, including Enka, for damage caused be the fire. In May 2019, Chubb Russia brought a claim against Enka in Russia. In response, in September 2019 Enka brought an arbitration claim in the High Court in London arguing that, by proceeding in the Russian court, Chubb Russia was in breach of the arbitration agreement and seeking an anti suit injunction to restrain Chubb Russia from pursuing the Russian claim. At first instance, the High Court dismissed Enkas claim on the primary ground that the appropriate forum to determine to scope of the arbitration agreement was the Russian court. On appeal, the Court of Appeal overturned the judges decision. It held that, unless there has been an express choice of the law that is to govern the arbitration agreement, the general rule should be that the arbitration agreement is governed by the law of the seat, as a matter of implied choice; that there was no express choice of law in this case and that the arbitration agreement was therefore governed by English law; and that it was appropriate to grant an anti suit injunction to restrain Chubb Russia from pursuing the Russian claim. Chubb Russia appeals to the Supreme Court. By a majority the Supreme Court dismisses the appeal. The judgment is given by Lord Hamblen and Lord Leggatt with whom Lord Kerr agrees. Lord Burrows delivers a dissenting judgment, with which Lord Sales agrees. Lord Sales also gives his own judgment. Where an English court must decide which system of law governs an arbitration agreement, it should apply the English common law rules for resolving conflicts of laws rather that the provisions of the Rome I Regulation, as the latter excludes arbitration agreements from its scope [25] [28]. According to the common law rules, the law applicable to the arbitration agreement will be: (i) the law expressly or impliedly chosen by the parties; or (ii) in the absence of such choice, the system of law most closely connected to the arbitration agreement [27]. In determining whether the parties have made a choice of law, the court should construe the arbitration agreement and the contract containing it by applying rules of contractual interpretation of English law as the law of the forum [29] [34]. Where the parties have not specified the law applicable to the arbitration agreement, but they have chosen the law to govern the contract containing the arbitration agreement, this choice will generally apply to the arbitration agreement [43] [52]. This general rule encourages legal certainty, consistency and coherence while avoiding complexity and artificiality [53]. The Court of Appeal was wrong to find that there is a strong presumption that the parties have, by implication, chosen the law of the seat of the arbitration to govern the arbitration agreement [59] [64]. Any overlap between the law of the seat and that of the arbitration does not justify such a presumption [64] [94]. While a choice of seat can lead to such an inference in some cases, the content of the Arbitration Act 1996, particularly section 4(5), does not support such a general inference [73] [82]. Where there is no express choice of law to govern the contract, a choice of the seat of the arbitration does not by itself justify an inference that the contract (or the arbitration agreement) is intended to be governed by the law of the seat [110] [117]. Where the parties have made no choice of law to govern the arbitration agreement, either specifically or by choosing the law which is to govern the contract as a whole, the court must determine the law with which the arbitration agreement is most closely connected. In general, the arbitration agreement will be most closely connected with the law of the seat of arbitration. [118] [119]. This default rule is supported by the following considerations: (i) the seat is where the arbitration is to be performed (legally, if not physically) [121] [124]; (ii) this approach maintains consistency with international law and legislative policy [125] [141]; (iii) this rule is likely to uphold the reasonable expectations of contracting parties who specify a location for the arbitration without choosing the law to govern the contract [142] [143]; and (iv) this approach provides legal certainty, allowing parties to predict easily which law the court will apply in the absence of choice [144]. The majority holds that the contract in this case contains no choice of the law that is intended to govern the contract or the arbitration agreement within it. In these circumstances the validity and scope of the arbitration agreement is governed by the law of the chosen seat of arbitration, as the law with which the dispute resolution clause is most closely connected [171]. The seat of the arbitration is London. Therefore, the majority upholds the Court of Appeals conclusion that English law governs the arbitration agreement, albeit for different reasons [171]. Chubb Russia does not dispute that, if the arbitration agreement is governed by English law, it was legitimate for the Court of Appeal to grant an anti suit injunction in this case. [173]. The Supreme Court, however, affirms the Court of Appeals decision that, in principle, it makes no difference whether the arbitration agreement is governed by English or foreign law, as the inquiry in both cases remains the same: whether there been a breach of the agreement and, if so, whether it is just and convenient to grant an injunction to restrain that breach [178] [182]. While there may be circumstances in which it would be appropriate to await a decision of a foreign court before granting an injunction, deference to foreign courts should generally give way to upholding the importance of the parties bargain [183]. Lord Burrows and Lord Sales agree with the majority that, if the parties have expressly or impliedly chosen the law of the contract, this choice applies to the arbitration agreement [266]. They dissent on what the default position should be in the absence of such choice. They consider that it should be that the law with which the main contract is most closely connected governs the arbitration agreement, as this is the law with which in their view the arbitration agreement is also most closely connected [257]. They also dissent on whether the parties have in this case chosen the law that is to govern the contract. In their view, the parties impliedly chose Russian law to govern the construction contract and also, therefore, the arbitration agreement [228]. They agree with the majority that whether it is appropriate to grant an anti suit injunction does not depend on what law governs the arbitration agreement but only on whether pursuing the foreign proceedings is a breach of that agreement. As they conclude that Russian law governs the arbitration agreement, they would remit the question of whether there has been a breach of the arbitration agreement so as to justify the grant of an anti suit injunction to the Commercial Court.
Ms Moreno is a UK resident. In May 2011, whilst on holiday in Greece, she was hit by a car. The car was registered in Greece and driven by an uninsured driver. It is not disputed that the driver was responsible for the accident. Ms Moreno suffered very serious injuries. Ms Moreno has claimed damages from the UK Motor Insurers Bureau (UKMIB), pursuant to a series of Council Directives (collectively, the Directives), culminating in a Sixth Directive 2009/103/EC (the Sixth Directive). The Directives are transposed into English law by The Motor Vehicles (Compulsory Insurance) (Information Centre and Compensation Body) Regulations 2003 (SI 2003 No 37) (the 2003 Regulations). The purpose of the arrangements introduced by the Directives and the 2003 Regulations is to ensure that compensation is available for victims of motor accidents occurring anywhere in the European Union and to facilitate their recovery of such compensation. They establish a scheme whereby, amongst other things, victims of a motor accident which occurs in one member state can in certain circumstances claim compensation directly from a body in their own member state of residence. The UKMIB is the designated body in the United Kingdom against which such claims can be made. The operation of the relevant part of the Directives was conditional on the conclusion of a subsequent agreement between compensation bodies and guarantee funds (the Agreement), which was reached in April 2002. The preliminary issue the subject of this appeal is whether the scope of Ms Morenos claim to damages is to be determined in accordance with English or Greek law. Her concern is that Greek law would yield a lesser measure of compensation than English law. At first instance, Gilbart J considered that he was bound by previous Court of Appeal authority (Jacobs v Motor Insurers Bureau [2010] EWCA Civ 1208) to hold that the damages are to be determined by English law. Gilbart J granted a leapfrog certificate under section 12 of the Administration of Justice Act 1969, which allows for cases to move directly from the High Court to the Supreme Court with its permission, which was granted in July 2015. The Supreme Court unanimously allows the appeal by the Motor Insurers Bureau. Lord Mance gives the lead judgment with which the other Justices agree. The 2003 Regulations should, so far as possible, be interpreted in a sense which is not in any way inconsistent with the Directives: Marleasing v La Comercial Internacional de Alimentacin (Case C 106/89) [26]. There is no suggestion in the 2003 Regulations or elsewhere, that the domestic legislator intended to do anything other than faithfully implement and give effect to the Directives [28]. Two questions are central to this appeal. The first is whether the Directives prescribe any particular approach to the scope or measure of recovery applicable in a claim against a compensation body under article 7 of the Fourth Directive (article 25(1) of the Sixth Directive). The second is if they do, whether the language of Regulation 13(2)(b) of the 2003 Regulations reflects this approach, or mandates some different approach, whatever the Directives may have required [29]. As to the first question, viewed as a whole, the Directives were and are a scheme of which the constant aim has been to improve the prospects and ease with which injured parties can recover the compensation to which they are entitled in respect of any loss or damage caused by vehicles [6 30]. The inference is that the victim of a motor accident is entitled to the same compensation, whether against the driver responsible, his or her insurer, or, that failing, against the motor insurance bureau of the State of the accident or indeed the compensation body established in the victims state of residence [31]. Clauses 7.2 and 8.2 of the Agreement provided that the compensation body in the victims country of residence was to apply, in evaluating liability and assessing compensation, the law of the country in which the accident occurred. The Agreement needs to be viewed as part of the wider scheme, which in turn needs to be construed as a consistent whole [33]. The Directives do not leave it to individual member states to provide for compensation in accordance with any law that such states may choose. On the contrary, they proceed on the basis that a victims entitlement to compensation will be measured on a consistent basis, by reference to the law of the state of the accident, whichever of the routes to recovery provided by the Directives he or she invokes. In consequence, it also makes no difference which route is chosen to the measure of liability of the body or person ultimately responsible. Since the position as a matter of European Union law is clear, there is no need for a reference to the Court of Justice [35 39]. As to the second question, the 2003 Regulations were consistent with the scheme of the Directives [40 41]. The loss and damage recoverable from the UKMIB is said in Regulation 12(4)(b) to be that properly recoverable in consequence of that accident by the injured party from [the insured] person under the laws applying in that part of the United Kingdom in which the injured party resided at the date of the accident. The most obvious purpose of this is to determine which of the United Kingdoms three legal systems should apply, rather than prescribing the measure of recovery in such proceedings [42]. The decisions in Jacobs v Motor Insurers Bureau [2010] EWCA Civ 1208; [2011] 1 WLR 2609 and Bloy v Motor Insurers Bureau [2013] EWCA Civ 1543, [2014] 1 Lloyds Rep IR 75 should be over ruled in relation to the meaning of regulation 13(2)(b) [43].
In 2007 the Respondent (PBL) purchased the former Chelsea Barracks in London from the Ministry of Defence (MoD) for 959m. In order make the purchase, PBL obtained finance from a Qatari Bank, Masraf al Rayan (MAR), which specialises in Islamic finance. Islamic finance seeks to comply with Sharia law, which forbids the payment of interest in connection with the lending of money. In this case, the Sharia compliant funding model used is known as Ijara finance. On 5 April 2007, PBL and the MoD entered into a contract to purchase the barracks. On 29 January 2008, PBL contracted to sub sell the freehold to MAR. Also on 29 January 2008, MAR agreed to lease the barracks back to PBL. Upon completion, on 31 January 2008, the following occurred: (a) MAR and PBL entered into put and call options respectively requiring or entitling PBL to repurchase the freehold in the barracks; (b) the MoD conveyed the freehold in the barracks to PBL; (c) PBL conveyed the freehold in the barracks to MAR, and (d) immediately after that, MAR leased the barracks back to PBL. On 22 February 2008, PBL lodged a tax return in relation to the contract between it and MoD and claimed that there was no liability to Stamp Duty Land Tax (SDLT) because of the sub sale relief provision in s45(3) of the Finance Act 2003 (FA 2003). A return lodged by MAR relating to the sale agreement between PBL and MAR claimed alternative property finance relief under s71A of FA 2003. Section 71A relief was also claimed in relation to the lease by MAR to PBL on 31 January 2008. Consequently, the parties to the scheme transactions claimed that nobody incurred a liability to SDLT. The Appellants (HMRC) challenged the return made by PBL and issued a closure notice which amended the amount of SDLT due from 0 to 38.36m (the sum which would have been due on the sale by the MoD to PBL if that were a chargeable transaction). PBL appealed to the First tier Tribunal (FTT). In the FTT, HMRC successfully applied to amend its case to increase the amount of SDLT due from 38.36m to 50m (based on the total consideration which MAR agreed to provide PBL). Upon appeal to the Upper Tribunal (UT), PBL changed its position and argued that MAR was not entitled to s71A relief because, on a proper understanding of the related provisions of the FA 2003, MoD was the vendor of the barracks in terms of s71A(2). However, the UT concluded that PBL was the vendor. The Court of Appeal (CoA) found, amongst other things, that the vendor was MoD, and not PBL, with the result that s71A(2) did not exempt MAR from charge. The CoA found that PBL could not be the vendor due to s45(3) which disregarded the contract between MoD and PBL for the purchase of the barracks. As a result of this disregard, PBL had no chargeable interest so as to be regarded as entering into the sub sale contract with MAR. The principal question in the appeal to the Supreme Court is whether PBL is due to pay SDLT of 50m arising out of its purchase from the MoD. The appeal is allowed. Lord Hodge gives the majority judgment with which Lady Hale, Lord Hughes and Lord Lloyd Jones agree. Lord Briggs gives a dissenting judgment [93 129]. The UT correctly concluded that PBL was the vendor under s71A(2) and therefore that MARs purchase of the barracks from PBL was exempt from SDLT [23]. Various reasons support this finding. For instance, there is nothing within s71A which suggests that the exemption in s71A(2) will not apply when the sale by the customer to the financial institution is a sub sale which takes place contemporaneously and in connection with the customers purchase of the major interest in land [24 28]. The disregard in the tailpiece of s45(3) has no bearing on the operation of s71A(2)[30]. In this case, but for s75A (a general and broadly drafted anti avoidance provision [44 45]), the combination of the sub sale relief under s45(2) and s45(3) and the exemption under s71A(2) relieved the sale by the MoD to PBL and exempted the sale by PBL to MAR from a charge to SDLT [34 35]. It is unsurprising that s75A was only introduced over one year after the combination of s45 and s71A could operate in this way. S75A was enacted by Parliament to close such lacunas [31 33]. In this case, the party referred to as V in s75A is the MoD [46]. Looking at s75 as a whole, and taking a purposive approach to interpretation, P as referred to in s75A is PBL. PBL did not obtain a chargeable interest on 31 January 2008 because the contract between it and the MoD fell to be disregarded under s45(3). PBL acquired its chargeable interest, a leasehold interest, following the sub sale to MAR and the lease back to PBL. These transactions were transactions involved in connection with the disposal by MoD of its chargeable interest (s75A(1)(b)) [46 49]. S75A(1)(c) requires that the sum of the amounts of SDLT payable in respect of the scheme transactions (which in this case is nil) is less than the amount that would be payable on a notional land transaction effecting the acquisition of Vs chargeable interest by P on its disposal by V. In this case, the relevant notional land transaction involves PBL acquiring MoDs interest in the barracks [56]. S75A(5) provides that the chargeable consideration on the notional transaction is the largest amount (or aggregate amount) given by any one person for the scheme transactions. HMRC correctly asserted that the relevant sum is 1.25bn (the purchase price which MAR contracted to pay to PBL). SDLT due thereon is 50m (although this is subject to PBLs right to make a claim under s80 of FA 2003) [57 64]. S75B does not assist PBL. This section operates by excluding incidental transactions from the calculation of the chargeable consideration on the notional transaction for the purposes of s75A(5). However, s75B(2) and s75B(6) support the conclusion that both the sub sale to MAR and the grant by MAR of the lease to PBL are included in the transactions which transfer the chargeable interest from V to P for the purposes of s75A(5)[68 72]. Therefore, the 1.25 billion consideration which MAR contracted to pay to PBL is the relevant consideration under s75A(5)(a)[73]. PBL also argued that s75A(5) and s75B read together indirectly discriminates against those of Islamic faith (who may be expected to adopt Sharia financing techniques) contrary to the European Convention on Human Rights [66; 74]. This matter can be determined on the simple bases (a) that any discriminatory effect is objectively justified and (b) that, in any event, PBL is not a victim [75 80]. Various procedural challenges by PBL are also rejected [81 86]. Finally, a different approach suggested in Emmet and Farrand on Title whereby the transfer of the Chelsea barracks to MAR in the Ijara transaction should be viewed in English law as a mortgage such that MAR should have been registered as the proprietor of a charge (which is exempt from SDLT) would be contrary to the legislative scheme in FA 2003 [87 91]. In Lord Briggs view, the transfer from PBL to MAR was not exempt under s71A(2) because PBL was not the vendor under the relevant land transaction within the combined meaning of sections 45(5A)(b) and 71A(2). The vendor was the MoD [101]. Lord Briggs considers that this analysis achieves rather than wholly frustrates the underlying purpose of the relevant provisions, namely to charge land transactions involving sub sales or Islamic finance to a single charge to SDLT, rather than there being no charge at all. The contrary result cannot be what Parliament intended [109], at a time when there was no recourse to s75A [129]. In response, Lord Hodge notes that Lord Briggs approach results in different interpretations of vendor under s71A(2) and s73(2). He finds HMRCs explanation of a patchwork of provisions and a lacuna (remedied by s75A) more persuasive [36 38].
The Appellant (the taxpayer) operates bingo clubs. Customers pay a fee, which entitles them to play in a number of bingo games (collectively, a session). There is no obligation to play every game in a session. Prizes are paid to those who win games. VAT is charged on the supply of goods or services. Council Directive (EC) 2006/112 of 28 November 2006 (the Principal VAT Directive), which currently still applies in the UK, establishes a common system of VAT for member states of the European Union. The main UK national legislation is the Value Added Tax Act 1994 (the VAT Act) and the Value Added Tax Regulations 1995 (the 1995 Regulations). VAT is normally charged on the full amount paid by the customer. However, exceptionally in the case of commercial gambling the taxable amount is the net sum retained by the organiser after deducting the winnings paid out. For bingo, the fees charged must therefore be divided into two components: the stake, which is the contribution each customer makes towards the cash prizes, and the participation fee, which is the total fee received minus the stake. At all relevant times VAT was payable on the participation fee and not the stake. The present dispute arises from a change in guidance given by HMRC about how participation fees should be calculated. Until 2007, the guidance stated that bingo promoters should calculate the participation fees separately for each game. In February 2007, HMRC issued Business Brief 07/07 (the business brief), which stated that participation fees should be calculated on a session by session basis. This is more favourable to the promoter than the game by game basis as it tends to produce a lower taxable amount. The business brief stated that Bingo promoters that have calculated the VAT due on participation and session charges on a game by game basis, and who now find that they have done so incorrectly, may make a claim to HMRC for a repayment of any resulting overdeclaration, subject to the conditions set out in Notice 700/45. Notice 700/45 gave general guidance and stated that a claim was subject to a time limit of three years. This time limit had a legislative basis in section 80 of the VAT Act. The taxpayer accounted for VAT on a game by game basis until 2007. After the business brief was issued, the taxpayer made a claim under section 80 of the VAT Act for repayment of sums overpaid as a result of having used this basis of calculation; because of the time limit in section 80, the taxpayer claimed and was repaid for the previous three years only. In 2011, the First tier Tribunal (Tax Chamber) heard an appeal by another bingo club operator, which argued that it was entitled to make an adjustment without any time limitation. The First tier Tribunal agreed: Carlton Clubs plc v Revenue and Customs Comrs [2011] UKFTT 542 (TC); [2011] SFTD 1209. In light of that case, the taxpayer in the current dispute sought to make an adjustment for the years 1996 HMRC declined to accept that. The taxpayer appealed. The question for the Supreme Court was whether the taxpayer was entitled to make such an adjustment. The Supreme Court unanimously dismisses the appeal. Lord Leggatt gives the sole judgment. The first obstacle facing the taxpayer was the time limit in section 80 of the VAT Act, which applied to recovery of money paid that was not VAT due to HMRC. To avoid the time limit, the taxpayer therefore had to argue that all the tax paid on a game by game basis in the years 1996 2004 was due to HMRC [24]. The taxpayer argued that both the session by session and game by game methods were legitimate methods of calculation. As such, when using the game by game method, it was paying tax that was due and therefore section 80 of the VAT Act, and its time limit, did not apply [27]. Lord Leggatt disagreed; there was only one correct method of calculating the taxable element which was the session by session method [30]. In the present case, it was an agreed fact that a customer purchased a right to participate in a session of bingo [38]. No reason was advanced for going behind the pricing policy adopted by the taxpayer [39]. It followed that if, as a result of using the game by game basis, the taxpayer had paid more VAT to HMRC between 1996 and 2007 than if it had used the session by session method, then the taxpayer had paid tax that was not due. This means that section 80 with its three year time limit applied, so that VAT paid before 2004 cannot be recovered [41]. This was sufficient to dispose of the appeal. However, Lord Leggatt went on to address the rest of the taxpayers argument. The taxpayer sought repayment by relying on article 90 of the Principal VAT Directive, which states In the case of cancellation, refusal or total or partial non payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly under conditions which shall be determined by the member states. The mechanism for adjustments under article 90 is found in regulation 38 of the 1995 Regulations, which applies where there is an increase or a decrease in consideration for a supply. There is no time limit for making such adjustments [45]. The taxpayer argued that where the method of calculation changes and produces a lower amount, there is a reduction in the price / decrease in consideration for a supply for which an adjustment can be made under regulation 38 [46]. Lord Leggatt rejected that argument [47]. Article 90 and regulation 38 apply only where there has been a change in the consideration actually received by the taxpayer, not where all that has changed is the method used to calculate the taxable amount [48]. It would subvert section 80 of the VAT Act if the taxable person could, by adopting a different method of calculation, adjust its liability for all past years. The taxpayer further argued that the business brief required or invited bingo promoters to change the calculation method and make retrospective adjustments accordingly [57]. This was also not accepted. HMRC does not generally have the power to issue binding guidance [59] and the business brief was merely HMRCs view of the law; if the taxpayer disagreed, the position would need to be resolved by a tribunal [60]. In any case, the business brief could only reasonably be read as inviting bingo promoters who found that they had incorrectly calculated VAT on a game by game basis to make a claim for repayment under section 80 [64]. It could not be read as inviting promoters to make adjustments under regulation 38 [65]. The business brief was therefore inconsistent with the taxpayers case [67].
In January 2010 Lady Brownlie and her husband, Sir Ian Brownlie QC, were on holiday in Egypt, staying at the Four Seasons Hotel Cairo at Nile Plaza. Her evidence is that she had telephoned the hotel from England and booked an excursion in a chauffeur driven car. During the excursion, the car crashed. The passengers, in addition to Sir Ian and Lady Brownlie, were his daughter Rebecca, and Rebeccas two children. Sir Ian and Rebecca were killed. The others were seriously injured. Four Seasons Holdings Inc (Holdings) is the holding company of the Four Seasons hotel group. It is incorporated in British Columbia, Canada. Lady Brownlie issued a claim against Holdings, seeking: (i) damages for her own personal injuries, (ii) damages under the Law Reform (Miscellaneous Provisions) Act 1934 as Sir Ians executrix, and (iii) damages for her bereavement and loss of dependency under the Fatal Accidents Act 1976. In order to serve her claim form on Holdings in Canada, Lady Brownlie required permission from the court for service outside England and Wales. Master Yoxall initially granted permission, but Master Cook subsequently set aside that order on the basis that the English court lacked jurisdiction. Lady Brownlie appealed to Mr Justice Tugendhat, who restored the original order of Master Yoxall. The Court of Appeal permitted service outside England and Wales in respect of Lady Brownlies contractual claim and her claim under the 1976 Act, but disallowed it in respect of her claim under the 1934 Act and her claim for damages for her own injuries. The Supreme Court unanimously allows the appeal. Lord Sumption gives the lead judgment, with which Lord Hughes agrees. Lady Hale gives a partially concurring judgment with which Lord Clarke and Lord Wilson agree. Lord Wilson also gives a partially concurring judgment, with which Lord Clarke agrees. Before permission can be given for service of a claim form outside the jurisdiction, it is necessary for the claimant to establish that: (i) the case falls within at least one of the jurisdictional gateways in paragraph 3.1 of Practice Direction 6B (6BPD) to the Civil Procedure Rules (CPR), (ii) his or her claim has a reasonable prospect of success, and (iii) England and Wales is the proper place in which to bring the claim. Lady Brownlies contractual claim relies on a contention that the contract was made within the jurisdiction (the gateway in paragraph 3.1(6)(a)), whereas her tortious claims rely on a contention that damage was sustained within the jurisdiction (the gateway in paragraph 3.1(9)(a)) [3]. In order to satisfy the Court of such jurisdictional facts, a claimant must show a good arguable case on the issue. This means: (i) that the claimant must supply plausible evidence for the application of the relevant jurisdictional gateway in paragraph 3.1; (ii) that if there is an issue of fact about it, or some other reason for doubting whether the gateway applies, the Court must take a view on the material available if it can reliably do so; but (iii) the nature of the issue and the limitations of the material available at this interim stage may be such that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible (albeit contested) evidential basis for it [4 7]. The Supreme Court invited Holdings to provide further evidence, which clarified that at the material times the Cairo hotel had been owned by a company unrelated to Holdings and operated by Holdings Egyptian subsidiary. There is consequently no realistic prospect of Lady Brownlie establishing that she contracted with Holdings, nor of Holdings being held liable for the drivers negligence. It follows that her claim against Holdings lacks reasonable prospects of success [13 15]. It is therefore unnecessary to consider where the contract was made. Lord Sumption adds (obiter) that the law governing that question is artificial but that its application may be unavoidable under the current wording of paragraph 3.1(6)(a) [16]. Lady Hale adds (obiter) the Rules Committee could consider a broader formulation of paragraph 3.1(6)(a)[33]. In those circumstances the correct interpretation of the gateway in paragraph 3.1(9)(a) does not arise. Anything said on the subject is obiter [17, 32]. The claim under the Fatal Accidents Act 1976 has no prospect of success because the 1976 Act has no application to a tort which is not governed by English law. The drivers alleged negligence is governed by the law of Egypt [18, 32, 55]. The Court of Appeal was wrong to base its interpretation of paragraph 3.1(9) on the Rome II Regulation, which is concerned with applicable law rather than jurisdiction [21 , 48 50, 57]. Lord Sumption and Lord Hughes would have held that the other tortious claims did not fall within paragraph 3.1(9)(a) [17]. This is because there is a fundamental difference between the damage done to an interest which the law protects (in this case, bodily integrity) and subsequent expenditure which is merely evidence of its amount [22 25]. The draftsman of 6BPD could have provided that damage should extend to the financial or physical consequences of the damage, but nothing in the language suggests that he did so. Policy considerations strongly suggest that that was not intended. In particular, (i) the current rules were intended to assimilate the test to that which applies in Brussels regulation cases, which has always disregarded the secondary consequences of physical damage; and (ii) if the test is satisfied by the occurrence of any of the subsequent physical or financial consequences of the damage in England, the result will in practice be to confer jurisdiction by virtue of the claimants place of residence [26 30]. Lady Hale, Lord Wilson and Lord Clarke consider Lady Brownlies tort claims to fall within paragraph 3.1(9)(a) insofar as they seek damages for personal injury to herself and, as his executrix, to her late husband [56]. Lady Hale observes that, under the CPR and its predecessors, the Court has always retained a discretion to refuse permission to serve proceedings outside the jurisdiction [34 39]. There is a consistent line of first instance decisions permitting claims in tort to be brought in England and Wales if damage is suffered here a result of injuries inflicted abroad. The judges in those decisions carefully considered and correctly rejected the arguments to the contrary [40 47]. There is no reason to think that the authors of paragraph 3.1(9) were contemplating anything but the ordinary and natural meaning of the word damage. The various judges who have held that damage refers to actionable harm are supported by the approach of the New South Wales Court of Appeal towards a similar jurisdictional rule [51]. Furthermore, damage can be suffered by the same person in more than one place and the distinction between direct and indirect damage is not easy to draw in all cases [51 53]. Lord Wilson and Lord Clarke consider that the relevant jurisdictional rules have widened as required by EU law; but it does not follow that those rules, in a claim unconstrained by EU law, should be narrowed to the size of the gateway set by EU law [58 62]. Paragraph 3.1(9)(a) refers to damage rather than the damage [63]. A narrow interpretation of the word damage, requiring claimants to litigate elsewhere, could lead to injustice [64]. It is questionable whether claims in which only a tenuous amount of damage is suffered in England and Wales will satisfy the separate test of whether that is the proper place in which to bring the claim [57, 65]. The courts of Ontario and New South Wales have a long standing jurisdiction to entertain claims based only on the occurrence of secondary damages within those jurisdictions, which ought to allay fears that this interpretation would encourage abuse [66].
The issue in the appeal is whether section 31(3)(d) of the Adoption and Children (Scotland) Act 2007 (the 2007 Act) is incompatible with the Convention right set out in article 8 of the European Convention on Human Rights 1950 (the Convention), with the consequence that it is outside the legislative competence of the Scottish Parliament as defined in the Scotland Act 1998 and is not law. The appellant is the mother of a child who is the subject of adoption proceedings. She is opposed to the proposed adoption and has refused to give her consent. The first respondents are the prospective adoptive parents. Section 31 of the 2007 Act is concerned with parental consent to adoption. Subsection (3) sets out the grounds on which the parents or guardians consent to the making of the adoption order may be dispensed with. In this case, one of the grounds relied on is that set out in section 31(3)(d). This provision applies only where neither section 31(4) nor section 31(5) apply: that is to say, where the court does not consider that the parent is unable satisfactorily to discharge her parental responsibilities or exercise her parental rights and is likely to continue to be unable to do so, or where the parent is not someone who is subject to an order removing parental responsibilities and rights and is unlikely to have such responsibilities or rights restored in the future. An adoption order may be made in these circumstances where [] the welfare of the child otherwise requires the consent to be dispensed with. The Supreme Court dismisses the appeal. The lead judgment is given by Lord Reed, with whom the other justices agree. Lord Hope and Lord Carnwath add brief concurring judgments. The Supreme Court first considers the correct approach to interpretation where Convention rights apply. It notes that the special interpretive duty imposed by section 3 of the Human Rights Act 1998 arises only where the legislation, if read and given effect according to ordinary principles, would result in a breach of the Convention. If the ordinary meaning of the legislation is incompatible with the Convention, it is then necessary to consider whether the incompatibility can be cured by interpreting the legislation in the manner required by section 3. If the legislation cannot be construed in a manner which is compatible with the Convention, then it will not be within the competence of the Scottish Parliament [15 17]. In interpreting section 31 of the 2007 Act, the Court notes that it is premised on the need for parents to consent to the making of an adoption order. Section 31(2)(b) however confers a power, exercisable only by a court, to dispense with the consent of a parent on the grounds specified in section 31(3). Secondly, the Court observes that those grounds are specified in greater detail than in section 52 of the Adoption and Children Act 2002, on which section 31 of the 2007 Act was based [24 29]. Turning to the precise wording of section 31(3)(d), the word welfare has to be read in the context of section 14(3), which requires the court to have regard to the need to safeguard and promote the welfare of the child throughout the childs life as the paramount consideration. The Court also considers that the court must have regard to the specific matters listed in section 14(4), so far as is reasonably practicable. Furthermore, section 31(3)(d) empowers the court to dispense with the parents consent only if it is satisfied that the welfare of the child requires it. The word requires must mean, as a matter of ordinary English, that it is necessary [30 32]. That ordinary meaning is appropriate for several reasons. First, the court will not lightly authorise the making of an adoption order against the wishes of a parent. Secondly, the 2007 Act was intended to operate in the context of the Convention rights, and the duty of courts, under section 6 of the Human Rights Act, not to act in a way which is incompatible with those rights. It must therefore have been intended that section 31(3)(d) would be construed and given effect by the courts in a manner which complied with the Convention. Thirdly, the 2007 Act is also to be construed in accordance with the presumption that it is not intended to place the United Kingdom in breach of its international obligations. The relevant international obligations include those arising under the Convention [33 37]. The Court next considers whether, construed on the basis of ordinary principles of statutory interpretation, section 31(3)(d) of the 2007 Act is incompatible with article 8 of the Convention. Having examined the relevant case law, the Court concludes that if the provision is applied as it considers it should be, then decisions made under it are compatible. Such decisions have a legitimate aim, namely to protect the welfare of children. Moreover, they meet the requirements of necessity and proportionality [38 43]. The Court rejects the contention that an order made under section 31(3)(d) is not in accordance with the law, within the meaning of article 8(2), because the provision is so imprecisely expressed that it lacks legal certainty. Interpreted in the light of its statutory context, it is plain that requires imports a test of necessity. Although section 31(3)(d) leaves much to the judgment of the sheriff, that reflects the nature of the subject matter of the provision. It is impossible to spell out exhaustively the particular circumstances in which an order dispensing with parental consent may be necessary. The application of the provision is foreseeable, provided the court interprets the provision correctly and bases its decision upon a reasonable assessment of the facts [45 49]. The Court regrets the delay in these proceedings, and makes suggestions as to how such delays might be minimised in future. [51 64].
These appeals concern the role of siblings in the procedures by which childrens hearings in Scotland make compulsory supervision orders (CSOs) under the Childrens Hearings (Scotland) Act 2011 (the 2011 Act). A CSO is an order in respect of a child which may (among other things) direct where the child is to reside and regulate the childs contact with any person. The 2011 Act provides for certain persons to have (or to be deemed to have) relevant person status in relation to a child. This status confers a right to be notified of, and an obligation to attend, any childrens hearing in relation to the child. The status also confers ancillary rights, such as access to the papers, the right to make submissions, and the right to seek a review of any CSO. Under section 81(3) of the 2011 Act, a person is deemed to be a relevant person if that person has (or has recently had) significant involvement in the upbringing of the child. In most cases that would not include a sibling. ABC is a 16 year old. His younger brother, DEF, is subject to a CSO which regulates his contact with ABC. ABC is not a deemed relevant person in relation to DEF. ABC argues that the relevant person scheme is incompatible with his right to respect for his family life under article 8 of European Convention on Human Rights (ECHR) and is therefore outside the legislative competence of the Scottish Parliament. The Lord Ordinary dismissed ABCs petition for judicial review but held that the test for deemed relevant person status in section 81(3) of the 2011 Act was too narrow to be compatible with article 8 of the ECHR, unless it was read down to include a broader range of people having established family life with the child. The First Division of Inner House of the Court of Session dismissed ABCs appeal and reversed the finding that there was a need to read down section 81(3). XY is a 24 year old with three younger sisters who are all subject to CSOs. XY applied to be deemed a relevant person in relation to each of his siblings and was briefly granted this status. However, following a series of decisions by childrens hearings, sheriffs and the Sheriff Appeal Court, XY is no longer deemed to be a relevant person in relation to any of his siblings. The First Division of the Inner House of the Court of Session, applying its own decision in the ABC case, dismissed XYs appeal against these decisions. XY argues that the provisions of the 2011 Act governing the grant and removal of deemed relevant person status (sections 81(3) and 81A(3)) are not compatible with his rights to a fair hearing and to respect for his family life under articles 6 and 8 of the ECHR. He argues that these provisions are therefore not within the legislative competence of the Scottish Parliament, unless they can be read down to render them compatible. The Supreme Court unanimously dismisses the appeals. Lady Hale and Lord Hodge give the sole judgment with which the other Justices agree. The Supreme Court considers that article 8 of the ECHR provides the appropriate framework for analysis. The requirement of a fair hearing under article 6 does not add anything to that right in the present circumstances [27]. In each case, the relevant interest for the purposes of article 8 is the maintenance and development of the relationship between the sibling and the referred child [29]. In the context of a childrens hearing, respect is shown to that interest if, in the particular circumstances of the case, the sibling is enabled to have an involvement in the decision making process, seen as a whole, to a degree sufficient to protect that interest [30]. The required degree of involvement will vary based on the nature and extent of the siblings relationship with the referred child. The Supreme Court concludes that article 8 does not require public authorities to grant relevant person status to a sibling, who does not have, and has not recently had, a significant involvement in the upbringing of the child [51]. Whilst the guidance has not always been clear, there is a range of measures which can be used to ensure that the relevant public authorities comply with their duty to act compatibly with the article 8 rights of family members who are not relevant persons [41]. For instance, the Scottish Childrens Reporter Administration directs reporters, when arranging a hearing, to consider whether there is anyone other than a (deemed) relevant person who ought to be invited under the discretionary powers contained in section 78 of the 2011 Act [32]. Childrens hearings also have recourse to advice from the National Convener of Children's Hearings Scotland, who would advise against refusing to obtain the views of a sibling of sufficient age and maturity [33]. Further guidance is provided in Childrens Hearings Scotlands Practice and Procedure Manual, which directs childrens hearings to obtain information about a childs relationships with siblings and to give careful consideration to how these relationships can be maintained and protected [35]. Under the Children (Scotland) Act 1995 and the Looked After Children (Scotland) Regulations 2009, the responsible local authority must obtain details of the childs siblings and their contact with the child and prepare a childs plan with arrangements for contact between the child and others [36]. In addition, the Principal Reporter, who is responsible for investigating whether a CSO is necessary, may require the local authority to provide a report or further information about a child, including relevant information about the childs siblings [37]. The child or any relevant person may also make representations on behalf of the childs wider family, including siblings [39]. Taken together, these mechanisms allow childrens hearings to show respect for the family life of those who are not entitled to the status of relevant person [38], provided that hearings are conducted in a practical and sensible manner and in line with the guidance of the Principal Reporter and Childrens Hearings Scotland [41]. As such, the Supreme Court holds that the relevant provisions of the 2011 Act are within the competence of the Scottish Parliament and need not be read down [50, 51]. Those who have a significant involvement in the upbringing of a child are those who make decisions for the child. Relevant person status is granted to such persons because CSOs interfere with their rights to make such decisions [46]. A sibling, who has not taken on such responsibility and does not face such interference, should not be given relevant person status. It would not be appropriate for every sibling to be required to attend all the childrens hearings under pain of criminal sanction [47], or to have comprehensive access to the referred childs documents (which might include highly sensitive information about the child and other family members) [48], or to have the power to delay or disrupt referrals by withholding their agreement to the underlying grounds [47]. Nor would this be consistent with the statutory requirement for childrens hearings to minimise the number of people present at any given time [50].
The central issue in these appeals is whether at common law an employee can recover damages for loss arising from the unfair manner of his dismissal in breach of an express term of an employment contract. Each of Mr Edwardss and Mr Bothams employment contracts contained express terms governing the procedure for dismissal in cases of misconduct and each were summarily dismissed from their employment as, respectively, consultant orthopaedic surgeon and youth community worker [3], [15]. In Mr Edwards case, disciplinary proceedings were instituted against him in December 2005. He was alleged to have undertaken an inappropriate internal examination of a female patient and then denied that the examination had taken place [4]. In February 2006, a disciplinary hearing was held and the panel decided that he should be summarily dismissed for gross personal and professional misconduct [5]. By a claim issued in the High Court in August 2008, Mr Edwards claimed damages for breach of his employment contract and its wrongful termination. Among other procedural breaches, he alleged that the disciplinary panel had not been constituted in line with the applicable policy, which formed a term of his contract. His case was that, if the panel had included a clinician of the same discipline as him, his contract would not have been terminated. His preliminary schedule of loss alleged that he lost earnings (past and future) of over 3.8 million [9]. Mr Botham was suspended from work in December 2002 and was charged with gross misconduct for behaving inappropriately in relation to two teenage girls. Following disciplinary proceedings, in September 2003 he was summarily dismissed for gross misconduct. Because his misconduct was in relation to young people, he was placed on the list of persons deemed unsuitable to work with children under the Protection of Children Act 1999 (the POCA list) [14]. Mr Botham brought proceedings in respect of his dismissal in the employment tribunal. In May 2007, it held he had been unfairly dismissed and his summary dismissal was a breach of contract. In relation to the unfair dismissal, it found that the Ministry of Defence (MoD) had breached express terms of his contract set out in the Discipline Code found in the MoDs Personnel Manual [15]. The tribunal awarded him 7,000 loss of salary and benefits for his notice period, a basic award of 1,989 and a compensatory award of 53,500. His name was removed from the POCA list [16]. Mr Botham then issued proceedings in the High Court seeking damages for breach of the express terms of his contract. Relying on the findings of the tribunal, he alleged that the MoD, in conducting the disciplinary process, failed to comply with provisions of the Disciplinary Code, by reason of which he suffered a loss of reputation, was put on the POCA list and prevented from obtaining further employment in his chosen field. The Supreme Court by a majority allows the appeal. Employees may not recover damages for loss suffered as a result of a breach of a term in their employment contract as to the manner of their dismissal unless the loss can be said to precede and be independent of the dismissal. Compensation for the manner of dismissal is limited to what they may recover pursuant to the Employment Rights Act 1996 (the 1996 Act). Lord Dyson gives the leading judgment with which Lord Mance (adding further comments) and Lord Walker agree. Lord Phillips agrees that the appeals should be allowed, but for different reasons. Lady Hale and Lords Kerr and Wilson dissent. In Johnson v Unisys Ltd [2001] UKHL 13, the House of Lords held that loss arising from the unfair manner of dismissal is not recoverable as damages for breach of the implied term of trust and confidence in employment contracts: it falls within what has been called the Johnson exclusion area [1]. By the time of the report of the Royal Commission on Trade Unions and Employers Associations 1965 1968 (the Donovan report) it was settled law that an employee was not entitled to recover damages in respect of the manner of his dismissal. The Donovan report recommended that the law should be changed and that statute should establish machinery to safeguard against unfair dismissal [21]. Parliament gave effect to this recommendation in the Industrial Relations Act 1971. The relevant provisions are now contained in the 1996 Act. But Parliament placed significant limitations on the ability of an employee to complain of unfair dismissal, such as the three month time limit for bringing a claim, and on the remedies available: there is a cap on the level of the compensatory award (now 68,400). Therefore, Parliament decided to give a remedy which was less generous than that which the common law would give for breach of contract in the ordinary way [19] [23]. In each legislative modification to the unfair dismissal scheme, Parliament linked failure to comply with disciplinary procedures with the outcome of unfair dismissal proceedings; the provisions about disciplinary procedure were intended to operate within the scope of the law of unfair (not wrongful) dismissal [30] [37]. It follows that, if provisions about disciplinary procedures are incorporated as express terms of an employment contract, they are not ordinary contractual terms. Parliament intended such provisions to apply to employment contracts to protect employees from unfair dismissal. It has specified the consequences of a failure to comply in unfair dismissal proceedings. It could not have intended that they would also give rise to a common law claim for damages. Unless the parties express otherwise, they are taken not to intend that a failure to comply with contractual disciplinary procedures will give rise to a common law claim for damages [37] [39],[94]. This is regardless of whether the term is express or implied. A dismissal may be unfair for a variety of reasons and any such complaint was intended by Parliament to be adjudicated on by the specialist employment tribunal, not that an employee could choose to pursue his complaint of unfair dismissal in the ordinary courts, free from the limitations carefully crafted by Parliament [40]. However, other remedies, such as injunction, which do not cut across the statutory scheme, are not excluded [44]. Whether individual cases fall within the Johnson exclusion area is a matter of fact and depends on whether the procedural breach forms part of the dismissal process: [51]. Mr Edwards dismissal flowed from the panels erroneous findings, which flowed from its improper constitution. Likewise, Mr Botham alleges that the loss of reputation was caused by the dismissal itself. Both cases therefore fall within the Johnson exclusion area [55] [59], [99].
On 24 October 2007 and again on both 3 and 13 April 2008 the Respondent, Mr Varma, was stopped at Gatwick Airport and found to be in possession of a quantity of tobacco which he had brought into the United Kingdom without having made payment of the relevant import duties. On 27 November Mr Varma was convicted in the Crown Court of being knowingly concerned in fraudulently evading duty chargeable on goods, contrary to section 170(2)(a) of the Customs and Excise Management Act 1979. Following this, on 15 January 2009 the judge made Mr Varma subject to a conditional discharge under section 12 of the Powers of Criminal Courts (Sentencing) Act 2000 (the 2000 Act), the condition being that he did not commit any further offence for a two year period from the date of the order. Confiscation proceedings under Part 2 of the Proceeds of Crime Act 2002 (the 2002 Act) were postponed until 3 April 2009. On that date the judge made a confiscation order depriving Mr Varma of the profits of his crimes to the extent of the amount available for recovery. The judge valued that sum at 1,500 and made a confiscation order in that amount. On 13 July 2009 Mr Varma sought leave to appeal out of time against the confiscation order on the basis that there was Court of Appeal authority (R v Clarke [2009] EWCA Crim 1074) to the effect that the Crown Court has no power to impose a confiscation order against an offender following conviction for an offence in respect of which the offender has been absolutely or conditionally discharged. This reflected the fact that the Court could only discharge an offender where it was of the opinion that it would be inexpedient to inflict punishment; this is subject to a number of specified exceptions listed in section 12(7) of the 2000 Act which the Court would not be prevented from imposing on an offender subject to a discharge. Given that section 12(7) made no reference to confiscation orders the Court in Clarke held that confiscation proceedings could not be brought where an offender is absolutely or conditionally discharged. The Court of Appeal granted permission to appeal, allowed Mr Varmas appeal and quashed the confiscation order, holding that it was bound by the decision in Clarke. However, the Court made clear that, but for the decision in Clarke, it would have reached the contrary conclusion and allowed the confiscation order to be made. The Court of Appeal certified the following point of law of general public importance for consideration by the Supreme Court of the United Kingdom: Does the Crown Court have power to make a confiscation order against a defendant following conviction for an offence if he or she receives an absolute or conditional discharge for that offence? The Supreme Court of the United Kingdom granted permission to appeal. The Supreme Court unanimously allows the appeal; the Crown Court has the power and, where the criteria in section 6 of the 2002 Act are satisfied, the duty to make a confiscation order against an offender following conviction for an offence in respect of which the offender has been absolutely or conditionally discharged. Lord Clarke gives the lead judgment with which Lord Dyson and Lord Reed agree. Lord Phillips and Lord Mance give short concurring judgments. Where the criteria in section 6 of the 2002 Act are satisfied the Crown Court is not only empowered to make a confiscation order but, unless it believes the victim of the conduct has started or intends to start civil proceedings against the offender for loss, injury or damage arising from that conduct, is under a duty to make such an order against the offender even where the offender has been absolutely or conditionally discharged following conviction for that offence [58]. The criteria in section 6 of the 2002 Act are satisfied in this case; (a) Mr Varma has been convicted of offences in proceedings before the Crown Court; (b) the prosecutor has requested that the court proceed under section 6 of the 2002 Act; (c) the Crown Court held Mr Varma benefited to the tune of 7,257.86; and, (d) the Court has decided upon the recoverable amount which it valued at 1,500. Consequently, the Court was under a duty to make a confiscation order to the extent of that amount; even where an offender is absolutely or conditionally discharged. There is nothing in the Act which gives the Court the power to decline to exercise its duty to make a confiscation order where the criteria in section 6 of the 2002 Act are satisfied. The Court found that the purpose of section 13(4) of the 2002 Act was neither to prohibit nor to limit the scope of a confiscation order [17]. The reference in section 13(4) of the 2002 Act to deciding the appropriate sentence for the defendant referred to the sentencing process during which the court considers how the defendant should be dealt with. It is unnecessary to decide whether an absolute or conditional discharge constitutes a sentence for these purposes; it is sufficient that an absolute or conditional discharge is an order made as a result of deciding the appropriate sentence within the meaning of section 13(4) of the 2002 Act [17]. Sections 14 and 15 of the 2002 Act contemplate circumstances in which confiscation proceedings may be postponed until after sentence is imposed. The Court holds that such a postponement of confiscation proceedings in no way nullifies the courts duty to return to those proceedings after deciding upon the appropriate sentence [20]. The Court acknowledges that there is no express reference to confiscation orders amongst the measures the courts are not prevented from imposing under section 12(7) of the 2000 Act where an offender is absolutely or conditionally discharged. Nonetheless, the Court holds that the lack of any express reference to a confiscation order in section 12(7) in no way nullifies the duty upon the court to make such an order where the criteria in section 6 of the 2002 Act are satisfied [29 31]. Lord Phillips gives a short concurring judgment in which he questions whether it is legitimate for the Revenue and Customs Prosecution Office (Customs), as the prosecuting authority in this case, to seek a confiscation order rather than seeking to exact the duty payable on the goods [59 60]. Lord Phillips questions whether, in confiscation proceedings, it is legitimate to treat a defendant as having evaded duty where the only reason he has done so is that Customs have chosen not to exact it. Lord Mance gives a short concurring judgment in which he contends that Lord Phillipss suggestion would render it impossible to treat any smuggler as having evaded duty payable on goods, unless and until it is clear that Customs could not pursue and recover the duty. Lord Mance expresses some doubt as to whether that position accurately reflects the ingredients of the criminal offence created by section 170(2) of the Customs and Excise Management Act 1979 [61 63].
The appeal raises two distinct legal issues: (1) The definition of sculpture in the Copyright, Designs and Patents Act 1988, and, in particular, the correct approach to three dimensional objects that have both an artistic purpose and a utilitarian function; (2) Whether an English court may exercise jurisdiction in a claim against persons domiciled in England for infringement of copyright committed outside the European Union in breach of the copyright law of that country? This appeal is concerned with intellectual property rights in various artefacts made for use in the first Star Wars film, Star Wars Episode IV A New Hope. The most important was the Imperial Stormtrooper helmet. It has been treated as decisive for the outcome of the case. As the trial judge put it, one of the most abiding images in the film was that of the Imperial Stormtroopers. The films story line and characters were conceived by George Lucas. Between 1974 and 1976 his concept of the Imperial Stormtroopers as threatening characters in fascist white armoured suits was given visual expression in drawings and paintings by an artist, Mr Ralph McQuarrie, and eventually three dimensional form by Mr Andrew Ainsworth. He produced several prototype vacuum moulded helmets. Once Mr Lucas had approved the final version, Mr Ainsworth made 50 helmets for use in the film. The Appellants (here referred to collectively as Lucasfilm) own copyrights in the artistic works created for the Star Wars films. They have built up a successful licensing business, including licensing models of Imperial Stormtroopers. In 2004 Mr Ainsworth used his original tools to make versions of the Imperial Stormstrooper helmet and armour for sale to the public. (The second respondent is a company owned by Mr Ainsworth; for practical purposes, he can be treated as the sole respondent). He sold between $8,000 and $30,000 of the goods in the United States. Lucasfilm obtained judgment against him in the United States. It also commenced proceedings in the English High Court, including claims for infringement of English copyright and claims under US copyright law. By the time of the Supreme Court hearing, Lucasfilm claimed only that the helmets qualified for copyright protection under English law as sculptures and not as works of artistic craftsmanship. In terms of section 4 of the Copyright Designs and Patents Act 1988, copyright subsists in, amongst other things, original artistic works, which includes a sculpture, irrespective of artistic quality. Whether a helmet was a sculpture is significant for two reasons. If it is, any copying of the helmets which Mr Ainsworth had originally produced would infringe Lucasfilms copyright. It is also relevant for the defences which are available. To produce a helmet by working from a drawing of it infringes copyright in the drawing. However, it is not an infringement of any copyright in a design document which records a design for anything other than an artistic work to make an article to the design or to copy an article made to the design: section 51 1988 Act. If the helmet did not qualify as sculpture, and was therefore not an artistic work, Mr Ainsworth had a defence to an English copyright action based on infringement of Mr McQuarries graphics. The High Court dismissed the claims for infringement of English copyright: the helmet was not a work of sculpture and therefore Mr Ainsworth had a defence under section 51. It held, however, that the United States copyright claims were justiciable and that US copyright had been infringed. The Court of Appeal allowed Mr Ainsworths appeal. It agreed that the helmet was not a work of sculpture but held that the US copyright claims were not justiciable. Lucasfilm appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. It holds that the helmets were not sculptures but that the US copyright claims were justiciable in English proceedings. Lord Walker and Lord Collins give a joint opinion, with which the other members of the Court agree. Sculpture issue The court reviews the legislative history of the current statutory provisions and previous authorities as to the meaning of sculpture: [14] [35]. In the High Court, the judge had formulated various guidelines as to the meaning of sculpture. For example, some regard must be had to the normal use of the word sculpture. The concept can apply to things going beyond what one would normally expect to be art, but it is inappropriate to stray too far from what would normally be regarded as sculpture. Not every three dimensional representation of a concept qualifies: [36] [37]. Lucasfilm contended that the helmet was sculpture as it had no practical function at all. Its purpose was wholly artistic, to make a visual impression on the filmgoer. That was not, however, how the trial judge and the Court of Appeal had viewed matters. Mann J found the helmets to be a mixture of costume and prop and that their primary function was utilitarian, namely to express an idea as part of character portrayal in the film. He held that this lacked the necessary quality of artistic creation required of a sculpture. This type of judgmental conclusion was one with which appellate courts should be slow to interfere, as Lord Hoffmann observed in Designers Guild Ltd v Russell Williams (Textiles) Ltd [2000] 1 WLR 2416: [40] [45]. The judge did not err in law or reach an obviously untenable conclusion: [46]. It would not accord with the normal use of language to apply the term sculpture to, for example, a 20th century military helmet used in the making of a film, however great its contribution to the artistic effect of the finished film. The argument for applying the term to an Imperial Stormtrooper helmet was stronger, because of the imagination that went into the concept of the Stormtroopers. But it remained the Star Wars film itself that was the work of article The helmet was utilitarian in the sense that it was an element in the process of production of the film: [44]. The Court noted that the law did not apply an elephant test, but instead a multi factoral approach: [47]. Justiciability of foreign copyright claim The Court of Appeal had held that the common law rule in British South Africa Co v Companhia de Moambique [1893] AC 602 that an English court had no jurisdiction to entertain an action for the determination of title to, or the right of possession of, foreign land, or the recovery of damages for trespass to such land, was an example of a general principle which applied to claims for infringement of foreign intellectual property rights. The Supreme Court concludes that, provided there is a basis for in personam jurisdiction over the defendant, an English court does have jurisdiction to try a claim for infringement of copyright of the kind involved in the present action: [105].
The Competition and Markets Authority (CMA) is the successor in title to the Office of Fair Trading (OFT). In April 2008 the OFT identified 13 parties, including the respondents, as having infringed the Competition Act 1998. In early June 2008 both respondents, along with four other parties, entered into Early Resolution Agreements (ERAs) with the OFT. The ERAs involved the parties admitting infringement and co operating with the OFT in exchange for substantial reductions in the anticipated penalties. A party to an ERA could also appeal against that final decision, notwithstanding the admissions in the ERA, but in that case was liable to have his penalty increased by the Competition Appeal Tribunal (CAT). The Early Resolution process was neither subject to statutory rules nor, at the material time, described in any published document. An internal OFT document nonetheless emphasised Fairness, transparency and consistency as integral to an effective settlement process. An OFT speaking note for use in discussions with parties also included a commitment to equal treatment principles. TM Retail (TMR) was one of the parties which had entered into an ERA. In 2008 the OFT responded to a query from TMR with an assurance that, if it did not appeal, it would get the benefit of any successful appeal made by any of the other parties to the decision. In April 2010 the OFT issued its final decision which made findings of infringement against parties under investigation, including the respondents. Six of those parties appealed to the CAT. Neither the respondents not TMR appealed, but instead chose to pay the reduced penalties imposed in the ERAs. The CAT allowed the appeals of all six appellants. TMR then wrote to the OFT, citing the 2008 assurance and inviting the OFT to withdraw the decision against it. The OFT reached a settlement agreement with TMR whereby the penalty which had been imposed on TMR was repaid with a contribution to interest. The respondents invited the OFT to withdraw the decisions against them, arguing that they should also be given the benefit of the assurances given to TMR. The OFT refused. The respondents ultimately brought judicial review claims. These failed in the High Court but succeeded in the Court of Appeal, which held that the OFTs failure to repay the penalties to the respondents was, in the absence of some objective justification for the difference in treatment compared to TMR, a breach of a public law duty to treat all those under investigation equally. The CMA appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. Lord Carnwath gives the lead judgment, with which the other Justices agree. Lord Sumption and Lord Briggs give concurring judgments. Domestic administrative law does not recognise a distinct principle of equal treatment. Consistency is a generally desirable objective, but not an absolute rule [24]. In this case the OFT was applying a single set of legal and policy criteria to a limited group of parties within a single area of business activity, and its commitment to equal treatment had been expressed in terms to those parties. To that extent, they had a legitimate expectation of equal treatment; but that tells one nothing about the legal consequences of such an expectation [29 30]. Although procedural unfairness or impropriety is a well established ground of judicial review, substantive unfairness as such is not. the case law add nothing to the ordinary principles of judicial review by which this case must be judged [31 42]. Even accepting that there was a breach of a legitimate expectation in the failure to replicate the assurances given to TMR in 2008, that would not in itself provide a basis for financial remedy in relation to the events of 2012, nor the reversal of financial penalties which had by then been lawfully imposed on, and accepted by, the respondents. It makes no difference to the result whether one applies a test of objective justification or one of rationality [43]. All those who entered ERAs knew of the possibility that other parties would appeal successfully. That was a risk the respondents took knowingly. TMR did not. TMR sought and obtained an assurance on which it claimed to have relied. In 2012 the OFT could reasonably take the view that, if the assurance were not honoured, TMR would have had a strong case for permission to appeal to the CAT out of time, whereas the respondents did not. If objective justification were needed for OFT taking a different approach to TMR, that was sufficient. [44 45]. Lord Sumption adds that the assurance given to TMR was a mistake because it was inconsistent with the OFTs policy of non discrimination, the terms of the ERA under discussion, and the purpose of the Early Resolution procedure [51 52]. That, however, cannot affect the position of the respondents, each of whom had entered into a distinct ERA which was intended finally to resolve the issues which were the subject of the CAT appeals, subject only to their right to either (i) terminate the ERA before the final OFT decision or (ii) appeal to the CAT after that decision. They invoked neither option, thus accepting the risk that they would not benefit from any other partys successful appeal but ensuring that they would retain the benefit of the discounted sanction if the appeals failed. Finality and certainty required that they should live with the consequences [53]. The assurance to TMR was in no sense given at their expense. They had no right to such an assurance. The OFTs mistake was that they gave the assurance to TMR, not that they failed to give it to the respondents. It was not irrational for the OFT in 2012 to repay the penalty to TMR after the appeal while not repaying the respondents, because having failed to appeal in reliance on the assurance, TMR would otherwise have been entitled to obtain leave to appeal out of time. Since they were in materially the same position as the six successful appellants, their appeal would have succeeded. Therefore, while the decision was discriminatory, the discrimination was objectively justified. Unlike TMR, the respondents had no basis for a late appeal to the CAT [54 56]. Lord Briggs adds that, where a public authority has the option to avoid replicating an earlier mistake but at some cost to equal treatment, the choice is one for the authority rather than the court, subject to the usual constrains of lawfulness and rationality. The OFTs conduct did not transgress those boundaries. The circumstances amount to a powerful objective justification for the unequal treatment: (i) the assurance to TMR was a mistake, (ii) its withdrawal in 2012 likely would have left TMR even better off than if the assurance were honoured, and (iii) the respondents had neither received nor relied upon any similar assurance. On any view the OFT made a rational choice between unpalatable alternatives, with which the court should not interfere [62 63].
Mrs HC is an Algerian national who has been living in the UK since 2009. She arrived with leave but then over stayed. In 2010 she married a British national on whom she depended financially. She had two children by him, in 2011 and 2013. Her children are British nationals. The relationship ended after domestic violence in late 2012, when Mrs HC sought help from her local authority. Oldham City Council, after initially refusing, agreed to provide Mrs HC and her children with temporary housing and 80.50 per week for subsistence and utilities, under section 17 of the Children Act 1989. It is common ground that Mrs HC is entitled to reside in the UK as the carer of her children, due to decision of the Court of Justice of the European Union (CJEU) in Zambrano v Office nationale de lemploi (Case C 34/09) [2012] QB 265. In Zambrano the CJEU held that an EU member state could not take measures in respect of a non EU citizen who was the primary carer (a Zambrano carer) of an EU citizen, where those measures effectively deprive that dependent EU citizen of the genuine enjoyment of his or her rights under EU law. In response to the Zambrano decision, the UK government introduced regulations which amended legislation to preclude Zambrano carers from claiming various income related benefits: (i) The Social Security (Habitual Residence) (Amendment) Regulations 2012; (ii) The Child Benefit and Child Tax Credit (Miscellaneous Amendments) Regulations 2012; (iii) The Allocation of Housing and Homelessness (Eligibility) (England) (Amendment) Regulations 2012 (collectively, the Regulations). Mrs HC challenges the legality of the Regulations. Mrs HC contends that the denial of mainstream welfare and housing provision to a Zambrano carer and her child is unlawful, because it amounts to unlawful discrimination under article 21 of the EU Charter of Fundamental Rights and Freedoms (the Charter) and/or under article 14 of the European Convention of Human Rights (ECHR). The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the lead judgment, with which Lord Clarke, Lord Wilson and Lord Sumption agree. Lady Hale gives a concurring judgment. In Zambrano and subsequent cases, the reasoning of the CJEU turned solely on the risk that the dependents of Zambrano carers might be forced to leave the EU, thereby being deprived of the enjoyment of their rights as EU citizens. That Zambrano right of residence is exceptional and is not triggered merely by the desirability of keeping the family together. It is not a right to any particular quality of life or standard of living [8 15]. It was argued on behalf of Mrs HC that in EU law, once a right of residence is established, the Zambrano carer is automatically entitled to the same social security assistance as nationals of the host state. That argument relied on the judgment of the CJEU in Baumbast v Secretary of State for the Home Department [2002] ECR I 7091, as followed in Ibrahim v Harrow London Borough Council and Teixeira v Lambeth Borough Council (Joined Cases C 310/08 and C 480/08) [16 20]. This Court rejects the analogy with those cases for two reasons. First, those cases concerned whether rights of residence were subject to conditions derived from EU law. The rights asserted in those cases were not limited by domestic law. Conversely the issue in this case is whether the Regulations, which limit Mrs HCs entitlement to assistance, comply with EU law. Second, the argument that a right of residence triggers a right to equal treatment under EU law relies on article 21 of the Charter. This begs the question of whether the Charter applies to this case at all [21]. According to article 51 of the Charter, the Charter applies to EU member states only when they are implementing EU law. As a result, the test for the applicability of the Charter is not whether Mrs HC was personally within the scope of EU law; it is whether the Regulations were implementing EU law [22 28]. EU law requires no more for the children of a Zambrano carer than the practical support necessary for them to remain in the EU. It is common ground that the limited financial support provided to Mrs HC and her children is sufficient for them to remain. It follows that Mrs HC cannot rely on the Charter to establish a right to further financial assistance [5, 28 29]. The measures adopted by the UK do not amount to unlawful discrimination under article 14 of the ECHR. Discrimination on the basis of immigration status is an accepted part of EU and national law and cannot in itself give rise to an issue under article 14. Insofar as Mrs HC relies on differences between her treatment as a Zambrano carer specifically and the treatment of others, such differences only reflect the rules of EU law which created her Zambrano carer status. In any event, the European Court of Human Rights has accepted that the allocation of public funds in the social security context is primarily a matter for national authorities, provided that allocations are not manifestly without reasonable foundation. The objectives underlying the Regulations cannot be said to fall outside that wide margin of discretion allowed to national governments [31 32]. No issue arises in the appeal as to the scope of the local authoritys duties under section 17 of the Children Act 1989, but that provision is now an important aspect of the governments response to the Zambrano principle. Section 17 confers a duty on local authorities to promote the welfare of the children in their area and, insofar as consistent with that, to promote the upbringing of such children by their families [33 34]. In this case, the duty arises from a responsibility imposed by EU law, but the allocation of that responsibility as between central and local government is a matter of domestic law only. That does nothing to diminish the importance of the duty under section 17. It is appropriate to provide guidance at a national level for the various local authorities discharging that duty [36 37]. In her concurring judgment, Lady Hale adds that a local authority reviewing the needs of the children for the purposes of section 17 will no doubt consider: (i) the need to promote actively the welfare of the children, when exercising various statutory powers; (ii) the fact that these children are British, with the right to remain here for the rest of their lives; (iii) the impact on the proper development of the children which would follow if they were denied a level of support equivalent to their peers [43 46]. The other members of the Court agree with those observations [37]. In Lady Hales view the administration of section 17, unlike the Regulations, could be said to implement EU law by enabling the children to remain in the UK. If the Charter were applicable to the administration of section 17, it might be possible to regard discrimination against the children of Zambrano carers in that context as falling within article 21 of the Charter. In that case, the justifications presently offered on behalf of the Secretary of State would be unimpressive. But section 17 is one way of providing these children with what they need and deserve. The availability of alternatives, which are in some ways preferable, does not mean that the UK is in breach of EU law [48 52].
This appeal is concerned with the meaning and effect of section 28 of the Family Law (Scotland) Act 2006 which, for the first time, enables a cohabitant to apply to the court for a financial provision where the cohabitation ends otherwise than by the death of one of the parties. The court may make an order for payment by the other cohabitant of a capital sum, having regard to whether that party (the defender) has derived economic advantage from contributions made by the applicant and whether the applicant has suffered economic disadvantage in the interests of the defender or any child. The court must then have regard to the extent to which any economic advantage derived by one party is offset by economic disadvantage suffered by that party, or economic disadvantage suffered by one party is offset by economic advantage derived by that party. The Appellant, Mrs Gow, met the Respondent, Mr Grant in 2001, when she was about 64 years old and he was about 58. They commenced a relationship, and in about December 2002 Mr Grant asked Mrs Gow to move in with him at his home in Penicuik. Mrs Gow agreed to do so if they became engaged, which they then did. They lived together as husband and wife and engaged in an active social life together until January 2008, when their relationship came to an end. When the parties met Mrs Gow also owned a flat in Edinburgh. After the couple moved in together, Mr Grant strongly encouraged Mrs Gow to sell her property, which she did in June 2003. The sheriff held that there was no evidence that Mrs Gow was forced to sell the flat because she was in financial difficulties. Rather, she had sold the property in the interests of furthering her relationship with Mr Grant. The net proceeds of the sale had been used partly for her own purposes and partly for the couples living expenses. Mrs Gow continued to live in Mr Grants home until she obtained rented accommodation in June 2009. The sheriff found that the value in July 2009 of Mrs Grants former flat was 88,000. The difference between that figure and the price at which the flat was sold in June 2003 was 38,000. The sheriff also heard evidence that during their cohabitation the parties purchased two timeshare weeks in their joint names, each of which cost 7,000. Mrs Gow paid 1,500 towards the first week, and the whole price of the second week. The sheriff recognised that the language of section 28 allowed her a discretion to make an order and that a precise calculation of loss, based on specific payments and receipts, did not require to be made. Her conclusion, having regard to the relevant matters, was that Mrs Gow had suffered a net economic disadvantage, and that she should be compensated in the sum of 39,500. Mr Grants appeal to the Inner House was allowed and the sheriffs award of a capital sum to Mrs Gow was set aside. The Supreme Court unanimously allows Mrs Gows appeal, overturns the decision of the Second Division, and affirms the sheriffs finding that the Appellant has suffered economic disadvantage in the interests of the Respondent to the extent of 39,500. The leading judgment is given by Lord Hope, with whom Lady Hale, Lord Wilson, Lord Reed and Lord Carnwath agree. A concurring judgment is also given by Lady Hale, with whom Lord Wilson and Lord Carnwath also agree. Section 28 does not seek to replicate the arrangements that are available for financial provision on divorce or the termination of a civil partnership. For this reason it would not be right to adopt the same approach to the application of that section as would be appropriate if the exercise was being conducted under section 9 of the Family Law (Scotland) Act 1985. That would be to impose a regime of property sharing, and in some cases, continuing financial support, on couples who might well have opted for cohabitation to avoid such consequences. But it is sufficiently clear from the background to the enactment of section 28 that in its case too the underlying principle is one of fairness. The section is designed to enable the court to correct imbalances arising out of a non commercial relationship where parties are quite likely to have made contributions or sacrifices without counting the cost or bargaining for a return. The statutory purpose does no more than reflect the reality that cohabitation is a less formal, less structured and more flexible form of relationship than either marriage or civil partnership [35]. It would therefore be wrong to approach section 28 on the basis that it was intended simply to enable the court to correct any clear and quantifiable economic imbalance that may have resulted from the cohabitation. That is too narrow an approach. Section 9(1)(b) of the 1985 Act enables fair compensation to be awarded, on a rough and ready valuation, in cases where otherwise none could be claimed. Section 28 of the 2006 Act is designed to achieve that effect. So it may be helpful to refer to cases decided under section 9(1)(b) when the court is considering what might be taken to be an economic advantage, disadvantage or contribution for this purpose or how the economic burden of caring for a child is to be dealt with under section 28(2)(b). An assessment of what is in the interests of any relevant child cannot simply be reduced to purely financial factors [36]. The phrase in the interests of the defender can be taken to mean in a manner intended to benefit the defender as the Second Division indicated. But it does not compel that interpretation, and in the present context, where the guiding principle is one of fairness, its more natural meaning is directed to the effect of the transaction rather than the intention with which it was entered into. Provided that disadvantage has been suffered in the interests of the defender to some extent, the door is open to an award of a capital sum even though it may also have been suffered in the interests of the applicant [38]. The sheriff was therefore entitled to take the sale of the house into account, notwithstanding her findings that the proceeds were used by Mrs Gow for her own purposes or to meet the parties joint living expenses, that it was encouraged by Mr Grant and that it was in the interests of furthering the parties relationship [39]. The sheriff was also entitled to hold that the loss of the benefit of the increase in value was an economic disadvantage, and that it was suffered by Mrs Gow in the interests of her relationship with Mr Grant. When the cohabitation ended Mrs Gow did not have a home whereas Mr Grant still had a home which had increased in value. Mrs Gow should be compensated for that disadvantage [40]. In relation to the sums spent on acquisition of the timeshare, this was a matter for the discretion of the sheriff. Her note indicates that this part of her award was arrived at after carrying out a careful analysis of all the facts. The Second Division therefore had no proper basis for disturbing this part of the award [41 42]. Lady Hale states that there are lessons to be learned from this case in England and Wales. There is a need for some such remedy south of the border. Sufficient basis for changing the law has been amply provided by the long standing judicial calls for reform; by the Law Commissions analysis of the deficiencies in the present law and the injustices which can result; by the demographic trends towards cohabitation and births to cohabiting couples, which are even more marked south of the border than they are in Scotland; and by the widespread belief that cohabiting couples are already protected by something called common law marriage which has never existed in the south [50]. The main lesson from this case, as also from the research carried out in Scotland and England to date, is that a remedy such as this is both practicable and fair, focusing on where parties were at the beginning of the relationship and where they are at the end. It does not impose upon unmarried couples the responsibilities of marriage but redresses the gains and losses flowing from their relationship [56].
Lady Arden explains that neither the Coroners and Justice Act 2009 (the Act) nor the European Convention on Human Rights requires any particular standard of proof for conclusions at an inquest [2,12]. There was case law to the effect that conclusions of suicide and unlawful killing should be reached on the criminal standard [60, 70]. A coroners inquest is not, however, a criminal proceeding [2]. The Coroners (Inquests) Rules 2013 (the Rules) contain a form which must be used to record the result of an inquest [15]. Note (iii) to this form explains that the standard of proof for short form conclusions of suicide and unlawful killing is the criminal standard and that for other conclusions the civil standard applies [16]. Adopting Wilson LJs reasoning in R (LG) v Independent Appeal Panel for Tom Hood School [2010] EWCA Civ 142; [2010] PTSR 1462 Lady Arden holds that the Rules could prescribe standard of proof. The issue is whether the effect of Note (iii) is to require a particular standard. The Ministry of Justice (the MoJ) consulted on the Rules in draft [24]. The MoJs response document explained that case law had established the standard of proof and the Rules could not change the law [26 27]. Lady Arden holds that that response is relevant to interpreting Note (iii) and shows that Parliament did not intend to change or codify the law as it understood it to be [42]. A footnote can lay down a new legal rule (Hunt v R M Douglas (Roofing) [1990] 1 AC 398) but the circumstances of that case were very different [43]. The contrary result in this case would contravene the drafting conventions on which our unwritten constitution depends [44]. On its true interpretation, Note (iii) did not take away the power of the courts to develop the common law [56]. Lady Arden concludes that, consistently with legal principle, the civil standard of proof applies to short form conclusions of suicide [68]. The previous case law is not binding on the Supreme Court and does not identify a good reason against applying the civil standard [70]. To apply different standards of proof for short form and narrative conclusions leads to an internally inconsistent system of fact finding [71]. If a criminal standard of proof is required, suicide is likely to be under recorded [73 74]. Societal attitudes to suicide have changed and the role of inquests has developed to be concerned with the investigation of deaths, not criminal justice [75 81]. Also, certain Commonwealth jurisdictions have aligned the standard of proof applicable in inquests with the standard applicable in civil proceedings [82]. Lady Arden holds that the civil standard of proof also applies to determinations of unlawful killing [93],[96]. There is then consistency between the determinations made at an inquest [96]. In his concurring judgment, Lord Carnwath considers that the Act does not indicate that the civil standard of proof cannot apply a conclusion of suicide [100]. In his view, Note (iii) does not have that effect. The public consultation materials confirm that position [107]. Lord Kerr in his dissenting judgment holds that the criminal standard of proof applies to short form conclusions of suicide and unlawful killing [143]. There is no inconsistency caused by a short form and narrative conclusion having different standards of proof [116]. There is nothing untoward in putting suicide and unlawful killing in a special category of verdicts that require proof to the criminal standard [139]. Note (iii) to the form did not attempt to change the law, but confirmed what the existing law was. As a result, the common law rule became a statutory rule [125]. It can only cease to have effect if Parliament enacts a statutory provision to amend or abolish it [126]. The Rules unquestionably established a statutory basis for the application of the criminal standard of proof for short form conclusions of suicide and unlawful killing [132]. Lord Reed agrees with Lord Kerr.
The appeal concerns the nature and assessment of paid annual leave required by the Civil Aviation (Working Time) Regulations 2004 (the Regulations). The appellants are pilots employed by the respondent (British Airways). Their terms of employment are found in a Memorandum of Agreement (MOA). The MOA provides for pilots to receive a fixed annual sum plus two supplementary payments varying according to the time spent flying, namely the Flying Pay Supplement (FPS) of 10 per flying hour and the Time Away From Base allowance (TAFB) paid at 2.73 per hour. TAFB was introduced in place of meal allowances and to cover other costs. Pilots are taxed on 18% of TAFB as the tax authorities regard it as providing more than needed purely for costs. The two supplementary payments are subject to limits because pilots are limited to a number of permissible hours flying or on duty each year. The MOA requires pilots to take a certain period of annual leave and entitles them to take periods of additional leave. When on leave, pilots are paid the basic fixed pay. Pilots are required to receive paid annual leave under the Regulations, which implemented the provisions of Council Directive 2000/79/EC (the Aviation Directive). The appellants brought claims against British Airways arguing that pursuant to the Regulations, they were entitled to both the supplementary payments as well as the fixed annual sum as part of their paid annual leave. They succeeded in the Employment Tribunal and the Employment Appeal Tribunal, but the Court of Appeal allowed British Airways appeal. In 2010 the Supreme Court heard the appellants appeal against that judgment, and decided it was under a duty to refer five questions concerning the interpretation of the relevant European law on the meaning of paid annual leave to the Court of Justice of the European Union (CJEU) (British Airways plc v Williams [2010] UKSC 16). The CJEU gave its response in a judgment dated 15 September 2011 (British Airways v Williams (Case C 155/10) [2012] ICR 847). The matter thereafter returned to the Supreme Court to rule on its consequences for the dispute between the parties. The Supreme Court, in the light of the judgment of the CJEU, unanimously remits the appellants claims to the Employment Tribunal for further consideration of the appropriate payments to be made to them in respect of periods of paid annual leave. The judgment is given by Lord Mance. The CJEU had ruled that the purpose of the requirement for paid annual leave in the Aviation Directive was to put the worker in a position which was, as regards remuneration, comparable to periods of work. A specific analysis of the various components of a workers pay was required. Any aspect which is linked intrinsically to the performance of the tasks which the worker is required to carry out under his contract of employment .such as, in the case of airline pilots, the time spent flying was to be taken into account. By contrast, components intended exclusively to cover occasional or ancillary costs arising at the time of performance need not be. It was for the national court to assess whether the various components comprising the workers total remuneration met those criteria, such assessment to be carried out on the basis of an average over a reference period which was judged to be representative [9 14]. The appellants argued that their claims should now be remitted to the Employment Tribunal for assessment, and that their remuneration on leave should include basic pay, FPS and 18% of TAFB. British Airways, however, submitted that the Regulations were too unspecific to give effect to the Aviation Directive and the requirement for an average over a reference period which is judged to be representative required a detailed legislative scheme which could not by supplied by an employment tribunal [15 19]. The wording of regulation 4 of the Regulations was taken from article 7 of the Aviation Directive. The same principles must govern the wording of both. If British Airways choice of a representative reference period was not acceptable to an individual pilot, a court or tribunal could take its own view. Even though the Regulations did not expressly address complaints relating to the payment of annual leave, complaint to a court was in fact permitted by Regulation 18(1) in respect of a refusal by an employer to permit the exercise of any right enjoyed by the employee under Regulation 4 and compensation could be awarded under Regulation 18(4) [20 27]. As for the proportion (if any) of TAFB to be included in paid annual leave, the test stated by the CJEU excluded sums intended exclusively to cover costs. The Supreme Court did not have the material before it to determine the real basis for the payment of TAFB and British Airways genuine intention would need to be considered by the employment tribunal. The attitude of the tax authorities was irrelevant [28 32].
Mr Kiarie has Kenyan nationality. He came to the UK in 1997 with his family at the age of three. Mr Byndloss has Jamaican nationality. He has lived in the UK since the age of 21 and has a wife and children living in the UK. Following their separate convictions for serious drug related offences, in October 2014 the respondent made orders for their deportation to Kenya and Jamaica respectively and rejected the appellants claims that deportation would breach their right to respect for their private and family life under article 8 of the European Convention on Human Rights (ECHR). When making the deportation orders, the Home Secretary issued certificates under section 94B of the Nationality, Immigration and Asylum Act 2002. In certifying the appellants claims under section 94B, the respondent chose not to instead certify their human rights claims as clearly unfounded under section 94, indicating that their appeals were arguable. The effect of section 94B certification is that the appellants can bring their appeals against the respondents immigration decisions only after they have returned to Kenya and Jamaica. Until 30 November 2016, section 94B provided that where a human rights claim had been made by a person liable to deportation, the Secretary of State may certify the claim if she considers that the removal of the person pending the outcome of their appeal would not be unlawful under section 6 of the Human Rights Act 1998 and that the person would not face a real risk of serious irreversible harm if removed to that country. The court stresses that this appeal is not about the circumstances in which a person can successfully resist deportation by reference to his private or family life. It recently addressed that question in the case of Ali and ruled that he can do so only if the circumstances are very compelling. The question in this appeal is: where the law gives such a person a right to appeal to a tribunal against a deportation order, then, however difficult it may be for him to succeed, does the Home Secretary breach his human rights by deporting him before he can bring the appeal and without making proper provision for him to participate in the hearing of it? The Court of Appeals answer was no. The Supreme Court unanimously allows the appeal of Mr Kiarie and Mr Byndloss and quashes the certificates. Lord Wilson gives the lead judgment, with which Lady Hale, Lord Hodge and Lord Toulson agree. Lord Carnwath gives a concurring judgment. The fundamental objective of section 94B arises from the fact that the appellants are foreign criminals and, by virtue of section 32(4) of the UK Borders Act 2007, the deportation of a foreign criminal is conducive to the public good [32 33]. However, Parliament gave foreign criminals a right of appeal against a deportation order by enacting section 82(1) and (3A) of the Nationality, Immigration and Asylum Act 2002. The public interest in the removal of an appellant in advance of his appeal is outweighed by the public interest that a right of appeal should be effective [35]. In proceedings for judicial review of a section 94B certificate, the tribunal must decide for itself whether deportation in advance of appeal would breach the appellants ECHR rights. It must assess for itself the proportionality of deportation at that stage, albeit attaching considerable weight to public policy considerations relied on by the respondent [42 43]. The application of the Wednesbury criterion to the right to depart from the Home Offices findings of fact, even when heightened to anxious scrutiny, is inapt. Under section 6 of the Human Rights Act 1998, the court may require to be more proactive than application of that criterion would permit. The residual power of the court to determine facts, and to receive evidence including oral evidence, needs to be recognised [47]. Article 8 requires that an appeal against a deportation order by reference to a claim in respect of private and family life should be effective [51 52]. While the effect of an appellants immediate removal from the UK is likely to significantly weaken his arguable appeal [58], what is determinative of these appeals is whether the issue of a section 94B certificate obstructs an appellants ability to effectively present his appeal against the deportation order [59]. In an appeal brought from abroad, the appellants ability to present his case is likely to be obstructed in a number of ways. Even if he is able to secure legal representation, the appellant and his lawyer would face formidable difficulties in giving and receiving instructions prior to and during the hearing [60]. Further, the effectiveness of an arguable appeal is likely to turn on the ability of the appellant to give live evidence to assist the tribunal in its assessment of whether he is a reformed character and the quality of his relationships with others in the UK, in particular with any child, partner or other family member [61, 63]. An effective appeal requires that the appellants are afforded the opportunity to give live evidence [76]. While the giving of evidence on screen is not optimum, it might be enough to render the appeal effective for the purposes of article 8, provided that the opportunity to give evidence in that way is realistically available to them [67]. However, the financial and logistical barriers to their giving evidence on screen from abroad are almost insurmountable. The respondent has therefore certified article 8 claims of foreign criminals under section 94B in the absence of a ECHR compliant system for the conduct of an appeal from abroad. The Ministry of Justice has failed to make provision for facilities at the hearing centre, or for access to such facilities abroad, as would allow the appellants to give live evidence and participate in the hearing [76]. Deportation pursuant to the certificates would therefore interfere with the appellants rights to respect for their private and family life in the UK pursuant to article 8 and, in particular, with the aspect of their rights which requires that their challenge to a threatened breach of them should be effective. The respondent has failed to establish that deportation in advance of appeal strikes a fair balance between the rights of the appellants and the interests of the community and therefore the decisions to issue the certificates were unlawful [78]. In a concurring judgment, Lord Carnwath concludes that an effective appeal for the purposes of article 8 is unlikely to turn on subjective issues requiring the appellant to give direct evidence, such as whether the appellant is a reformed character [100]. However, it is wrong in principle for the respondent, as the opposing party to the appeal, to be allowed to dictate the conduct of the appellants case or the evidence on which he chooses to rely. The respondent must be able, at the time of certification, to satisfy herself that the necessary facilities can and will be provided [102].
The dispute which has given rise to this appeal is a product of the failure of Icelands entire banking system in the autumn of 2008. The issue is how cross claims between two credit institutions are to be dealt with in insolvency proceedings in two different states in the European Economic Area (the EEA). Landsbanki Islands hf (Landsbanki) is an Icelandic company. Its wholly owned subsidiary, Heritable Bank plc (Heritable), is a Scottish company. Both companies have been in formal insolvency since 7 October 2008. On that date, the Court of Session appointed joint administrators to Heritable, and the Financial Services Authority of Iceland took control of Landsbanki. The District Court of Reykjavik later appointed a winding up board to Landsbanki [1 3, 38]. The relevant European legislation is Directive 2001/24/EC of 4 April 2001 on the reorganisation and winding up of credit institutions (the Directive), which applies to EU Member States and non EU countries in the EEA, including Iceland. The Directive was implemented in the UK by The Credit Institutions (Reorganisation and Winding up) Regulations 2004 (the Regulations). Landsbanki is an EEA credit institution for the purpose of Part 2 of the Regulations. Heritable is a UK credit institution for the purposes of Parts 3 and 4. Regulation 5 in Part 2 of the Regulations provides in essence that an EEA insolvency measure has effect in the UK in relation to the branches of an EEA credit institution, its property and assets, and its debts and liabilities, as if it were part of the general law of insolvency of the UK [2, 4, 23, 33]. Landsbanki submitted a total of four claims in Heritables administration in Scotland, but only one, submitted in December 2008 for about 86m in respect of a revolving credit facility governed by English law, is the subject of this appeal. Heritables administrators rejected that claim in November 2009, applying the Scots law rule on the balancing of accounts in bankruptcy, on the ground that Heritable had claims against Landsbanki which equalled or exceeded the amount of Landsbankis claim and which served to extinguish it. Later in November 2009, Landsbanki appealed to the Court of Session in Scotland against the administrators decision. In October 2009 Heritable had submitted four claims in Landsbankis winding up in Iceland. In January 2010 Landsbankis winding up board rejected three and accepted the fourth in a reduced amount. Heritables administrators formally objected to these decisions in February 2010 [5 10]. In the Court of Session appeal in Scotland, Landsbanki argued that the rejection of Heritables claims had effect and was binding in the UK in terms of regulation 5 of the Regulations, and that Heritables administrators were therefore bound to hold that Heritable had no claim against Landsbanki which could operate by way of set off. Heritable argued that Landsbankis argument was irrelevant. In Iceland, Heritables administrators asked that no further steps be taken in relation to their objections until Landsbankis Court of Session appeal in Scotland had been finally determined. Landsbankis winding up board declined this request and referred the objections to the District Court of Reykjavik in March 2010. Heritables administrators unsuccessfully sought a stay of those proceedings pending a determination of the point before the Court of Session [10, 12]. Back in Scotland, the Lord Ordinary in the Court of Session found in favour of Landsbanki in July 2010 after a debate. Following this decision, Heritables administrators withdrew Heritables claims from Landsbankis winding up in August 2010. Landsbanki then issued a counterclaim in the proceedings in the District Court of Reykjavik seeking a declaration that the Heritable claims had been extinguished. Heritables administrators successfully applied to discontinue the proceedings before the District Court of Reykjavik and the appeal of Landsbankis winding up board to the Icelandic Supreme Court was unsuccessful. Back again in Scotland, Heritable appealed against the Lord Ordinarys decision and the Inner House of the Court of Session reversed the Lord Ordinary in September 2011. Landsbanki now appeal to the Supreme Court. The issue is whether Heritables claims, extinguished as a matter of Icelandic law, are to be treated as extinguished in Heritables administration so that Heritables administrators cannot use them to set off Landsbankis claim [11, 13 16, 22, 43]. The Supreme Court unanimously dismisses Landsbankis appeal. It affirms the decision of the Inner House of the Court of Session. The judgment is given by Lord Hope with whom all the other Justices agree [62]. Heritables administrators may use the Heritable claims by way of set off against Landsbankis claim. The key to a proper understanding of regulation 5 lies in an appreciation of the fact that, while it is designed to give effect to the mandatory choice of the law of insolvency of the EEA state in which the foreign credit institution is located, it is not concerned in the least with the effects of the mandatory choice of Scots law for the administration of Heritable in Scotland. Those effects are provided for in Parts 3 and 4 of the Regulations, which have nothing to do with the effects of the mandatory choice of the law of Iceland for the winding up of Landsbanki [58]. Seen in the context of Part 2 of the Regulations (which is concerned with jurisdiction in relation to credit institutions), there is nothing remarkable about what regulation 5 sets out: even if an EEA credit institution has branches in the UK, the entire process of winding up must be conducted in its home state. Applied in this case, regulation 5 provides, among other things, that Landsbankis property or assets located in Scotland are not to be disposed of in accordance with Scots law, and that steps by a creditor to enforce a claim against Landsbanki are to be pursued solely in the proceedings in Iceland. For the purposes of the winding up, decisions taken by the winding up board are to be given effect in Scotland. In this way the integrity of the exclusive jurisdiction that is given to Iceland is preserved. But the provisions of regulation 5 are concerned only with the winding up in Iceland in relation to Landsbanki and it is only for that purpose that the winding up is to have effect as if it were part of the general law of insolvency in the UK. The provisions do not apply to the administration of Heritable in Scotland. The rules which apply to Heritable are set out in Parts 3 and 4 of the Regulations [52 54]. Regulations in Parts 3 and 4 provide that the general law of insolvency has effect in relation to UK credit institutions and that matters such as the conditions under which set off may be invoked and the rules governing, among other things, the admission and ranking of claims are to be determined in accordance with the general law of insolvency of the UK. They also preserve the right of creditors to demand the set off of their claims against the claims of the insolvent credit institution, where set off is permitted by the law applicable to the credit institutions claim. Issues of set off are therefore to be determined as the common law of Scotland requires, according to the proper law of the contract. That rule is conceived in the interests of creditors in other EEA states, bearing in mind that exclusive jurisdiction is given to the UK as the home state. The creditors right to claim set off is put onto the same basis as creditors in the UK [56, 57]. Although not decisive, Landsbankis argument also produces an arbitrary and unprincipled outcome. Its logic is that Heritables claims against Landsbanki would have been extinguished even if Heritable had been a wholly solvent company. The only way for Heritable to have avoided the extinguishment of its claim and therefore retained the right to use it by way of set off would have been for it to lodge and maintain it in Landsbankis winding up, even if it would not have been cost effective to do so or the prospects of recovery were nil. The effect of Landsbankis argument would also be to give universal priority to the process in which a decision happened to be made first. That would encourage forum shopping, especially where there was a prospect of inconsistent findings as to the validity of a claim in different states. It is hard to believe that this was intended by the framers of the Directive [59 61].
In June 1981, Mr McGeough was implicated in the attempted murder of Samuel Brush, a postman and member of the Ulster Defence Regiment who was shot in County Tyrone. In the course of the attack, Mr Brush managed to fire a gun at his assailants, striking one of them. Mr McGeough subsequently presented at a nearby hospital with a gunshot wound from what was later determined to be Mr Brushs weapon. He received treatment there and at a hospital in Dublin and, despite being placed under police guard, he managed to escape and leave the country. In August 1983 Mr McGeough applied for asylum in Sweden. The application was supported by the appellants account of his life, from which it appeared that he had been an operational member of the Irish Republican Army and had participated in the attack on Mr Brush. His application for asylum was dismissed, as was his subsequent appeal against the dismissal. In November 2010, the appellant was tried at Belfast Crown Court for attempted murder and possession of a firearm. He was convicted of both offences and neither conviction is challenged in this appeal. At the same time, he was tried on two charges of membership of a proscribed organisation (the Irish Republican Army), those charges being based on the material contained in the Swedish asylum application. An application was made during the course of the trial that the Swedish material should not be admitted in evidence, either because it should be excluded under section 76 of the Police and Criminal Evidence Act 1984 (PACE) as having such an adverse effect on the fairness of the trial that it should not be admitted, or because the admission of the evidence would offend the rule against self incrimination. Having heard evidence from a Swedish legal expert, the trial judge rejected the appellants application on the basis that there was nothing in Swedish law, nor in Council Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures for granting and withdrawing refugee status (the Procedures Directive), nor in general public policy considerations which prevented the disclosure by Sweden of the material in the asylum application to UK prosecuting authorities. The appellant had been represented in Sweden by lawyers who must have told him of the Swedish rule that the papers in an asylum application were open public documents. The conditions necessary for exclusion of the material under section 76 PACE were therefore not present. Further, the appellant had not been under compulsion when providing the information in the asylum application so the privilege against self incrimination was not engaged. The Swedish material was admitted in evidence and the appellant was convicted of the charges of membership of a proscribed organisation. The Court of Appeal dismissed the appellants appeal against conviction. The Supreme Court unanimously dismisses the appeal. Lord Kerr gives the only judgment, with which the other Justices agree. The need for candour in the completion of an asylum application is self evident, but that should not be regarded as giving rise to an inevitable duty of confidence over material contained in them [22]. There is no explicit requirement in the Procedures Directive that material disclosed by an applicant for asylum should be preserved in confidence for all time and from all agencies, just that (per Article 22 of the Procedures Directive) it should not be disclosed to alleged persecutors or in the course of examining the individual case (neither of which applied here) [23]. Nor does the overall purpose of the Directive assist the appellant in establishing a general prohibition on disclosure: Article 22 is precisely worded and to read into it a general duty of confidence would unwarrantably enlarge its scope [24, 27]. Article 41 of the Directive requires member states implementing the Directive to abide by the confidentiality principle as defined in national law [25]. Swedish law does not contain a duty of confidentiality over information supplied in support of an asylum application where that application has been unsuccessful, but favours such applications entering the public domain [26]. The material provided by Sweden was lawfully supplied and the authorities in this country had a legal obligation to make appropriate use of it if it revealed criminal activity [28]. Whether the material would have been treated differently if it had originated in the United Kingdom did not affect the manner in which the trial judge was required to approach his decision under section 76 PACE. The judge was plainly right to refuse the application [29]. Further, the absence of compulsion in the case of an application for asylum renders comparisons with situations involving compulsion (such as the requirement to answer questions under section 98 of the Children Act 1989) inapt. The rule against self incrimination does not require a prohibition on the use of evidence obtained through a non compulsive procedure such as an application for asylum [30].
In 2005 the appellant, Mr Barton, brought a claim alleging professional negligence against a law firm, Bowen Johnsons, which had acted for him in 1999. The respondent law firm, Wright Hassall LLP, initially acted for him in that negligence claim, until they applied to come off the record following a dispute about fees. Mr Barton unsuccessfully resisted that application and was ordered to pay the costs. His appeal against that costs order was dismissed, also with costs against him. In the meantime, acting in person, he had settled the proceedings against Bowen Johnsons. Two actions followed between Mr Barton and Wright Hassall. In the first, Wright Hassall successfully claimed their costs of acting for him before they came off the record. The second was the present action against them, which Mr Barton, acting in person, began by a claim form issued on 25 February 2013. Under rule 7.5 of the Civil Procedure Rules a claim form is valid for four months from the issue date. His claim alleged that Wright Hassall had breached their duties to him in their conduct of the action against Bowen Johnsons and in coming off the record when they did. Mr Barton claimed damages reflecting: (i) difference between the settlement sum and the alleged value of his claim and (ii) the costs of resisting Wright Hassalls application to come off the record and of his appeal on costs. Wright Hassall had in March 2012 instructed solicitors, Berrymans Lace Mawer, who had emailed Mr Barton asking him to address all future correspondence to them. On 17 April 2013 Berrymans sent Mr Barton an email which ended: I will await service of the Claim Form and Particulars of Claim. On 24 June 2013, the last day before the expiry of the issued claim form, Mr Barton sent them an email which began: Please find attached by means of service upon you. 1. Claim Form and Response Pack On 4 July 2013 Berrymans wrote to Mr Barton, saying that they had not confirmed that they would accept service by email. In the absence of that confirmation, email was not a permitted mode of service. They added that the claim form had expired unserved and that the claim was now statute barred. A claimant who cannot properly serve the claim form within four months may apply for either: (i) an extension under rule 7.6 of that period or (ii) an order under rule 6.15 that an otherwise non compliant step be treated as good service. Before the District Judge, Mr Barton pursued both options as alternatives to his primary case that his service complied with the rules. He failed but was permitted to appeal on whether his purported service by email should be validated. The Circuit Judge held that it should not. The Court of Appeal upheld that order. Mr Barton appealed to this Court. The Supreme Court dismisses the appeal by a majority of three to two. Lord Sumption, with whom Lord Wilson and Lord Carnwath agree, gives the lead judgment. Lady Hale and Lord Briggs dissent. What constitutes good reason for validating the non compliant service of a claim form is essentially a matter of factual evaluation. The main factors, the weight of which will vary with the circumstances, are likely to be: (i) whether the claimant took reasonable steps to serve in accordance with the rules; (ii) whether the defendant or his solicitor knew of the contents of the claim form when it expired; (iii) what, if any, prejudice the defendant would suffer from validation of the non compliant service [9 10]. It cannot be enough that Mr Bartons email brought the claim form to Berrymans attention. That is likely to be necessary for validation but it is not sufficient. Rules of court must identify a formal step to be treated as informing the defendant of the contents of the claim form. A clear and precise rule is necessary: (i) to determine the exact point from which time limits run for the taking of further steps, or the entry of judgment in default of them, and (ii) because valid service of the claim form may have significant implications for the operation of any relevant limitation period, as in this case. Consequently it has never been enough that the defendant is aware of the contents of the claim form [15 16]. Moreover, particular problems are associated with electronic service. A solicitor must have his clients authority to accept service, which normally in practice covers any mode of service. But a solicitors office must be properly set up to receive and monitor formal electronic communications, which can arrive unnoticed and in the absence of the person primarily responsible for the matter [17]. Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step he is about to take. Rule 6.3 and Practice Direction 6A, to which Mr Barton did not in fact refer, are not inaccessible and obscure. They do not justify his assumption that Berrymans would accept service by email unless they said otherwise. Others have made the same mistake as Mr Barton, but not for want of clarity in the rules [18 19]. By June 2013 Mr Barton was an experienced litigant. He knew about limitation. He knew that not all solicitors accepted service by email. Yet he took no steps to check whether Berrymans did so, or to ascertain the rules on service by email [19 20]. A claimant need not necessarily show that compliant service was impossible. It is enough that he has taken such steps as are reasonable. In this case the problem was that Mr Barton made no attempt to serve in accordance with the rules. All that he did was employ a mode of service which he should have appreciated was not in accordance with the rules [21]. The contention that Berrymans, by raising this issue, had been playing technical games does not advance Mr Bartons case: they did nothing before the purported service to suggest that they would not raise it [22]. None of this would have mattered if Mr Barton had allowed himself time to rectify any mishap. But having issued the claim form at the very end of the limitation period, and having made no attempt to serve it until the very end of its period of validity, he can have only a very limited claim on the courts indulgence under rule 6.15(2). By comparison, validation of service would prejudice Wright Hassall by depriving them of an accrued limitation defence [23]. There is no merit in the contention that the outcome in the lower courts is incompatible with Mr Bartons right to a fair trial under article 6 of the European Convention on Human Rights. The relevant rules are sufficiently accessible and clear. They serve a legitimate purpose. The Limitation Act, not those rules, prevented Mr Barton from pressing his claim. A reasonable limitation period does not contravene article 6 [24]. Lord Sumption agrees with Lord Briggs that the Civil Procedure Rule Committee should look at the issues dealt with on this appeal, but the appeal is dismissed [25]. Lord Briggs, with whom Lady Hale agrees, would have allowed the appeal for the following reasons. The most important purpose of service is to ensure that the contents of the claim form are brought to the attention of the person to be served. A second important purpose is to notify the recipient that the claim has been commenced against the defendant, and on a particular day. The provisions in Practice Direction 6A regulating service by email are to ensure that recipients have the opportunity to put in place arrangements for monitoring and dealing with what was then a new mode of service [28 29]. Where all three of those purposes are achieved, that is a good reason for validating service under rule 6.15 provided that there are not sufficient adverse factors against it, which might include a deliberate failure to comply or professional negligence [30]. The power to validate service is not limited to cases where an independent good reason is identified, beyond satisfaction of those underlying purposes [32 35]. Mr Bartons attempted service fully achieved those purposes. That provides good reason for validation unless the circumstances swing the balance against it. Aspects of the circumstances may be said to point both ways. Berrymans loss of its accrued limitation defence does not militate against validation: the acquisition of the defence would have been a windfall. Taking all the relevant considerations into account, Mr Bartons attempt at service by email should be validated [38 43].
This appeal concerns the correct approach to written contracts in the employment context where there is a dispute as to the genuineness of a written term. The question arises in the context of a dispute as to whether individuals are workers within the meaning of the National Minimum Wage Regulations 1999 (NMWR) and of the Working Time Regulations 1998 (WTR). The appellant (Autoclenz) provides car cleaning services to motor retailers and auctioneers. The respondents (the claimants) are 20 individual valeters who all worked as car valeters for Auoclenz. All signed similar contractual documents which contained statements to the effect that the claimants were self employed and the claimants were taxed on that basis. In 2007, Autoclenz required the claimants to sign new contracts. The new contract contained a clause which provided: For the avoidance of doubt, as an independent contractor, you are entitled to engage one or more individuals to carry out the valeting on your behalf, provided that such an individual is compliant with Autoclenzs requirements of sub contractors as set out in this agreement. The contract also provided that: You will not be obliged to provide your services on any particular occasion nor, in entering such agreement, does Autoclenz undertake any obligation to engage your services on any particular occasion. The claimants brought a claim in the employment tribunal (ET) seeking a declaration that they were workers as defined under the WTR and the NMWR and consequently entitled to holiday pay and to be paid in accordance with the NMWR. Both sets of regulations define worker in materially identical terms as: an individual who has entered into or works under (a) a contract of employment; or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual. As a matter of law no obligations clauses and substitution clauses are inconsistent with contracts of employment or contracts of personal performance It was therefore common ground between the parties that if the terms of the written contract were valid then, as a matter of law, the valeters could not be said to be workers within the meaning of the WTR and the NMWR. The ET held that these contractual terms did not reflect the true agreement between the parties and could be disregarded so that the claimants could be regarded as employed under contracts of employment within limb (a) of the definition. The Employment Appeal Tribunal (EAT) allowed Autoclenzs appeal on the basis that the claimants were not employees under limb (a) but held that they were workers under limb (b) of the definition. It held that on the basis that the ET had applied the incorrect legal test for the identification of sham terms. Both parties had to intend the contractual clause to mislead before it could be said to be a sham and there was insufficient evidence of such an intention. Both sides appealed to the Court of Appeal which restored the judgment of the ET, holding that the claimants were workers within the meaning of (a) and (b). The Supreme Court unanimously dismisses the appeal, holding that the ET had been entitled to find that the claimants were workers because they were working under contracts of employment within the meaning of the NWMR and the WTR. The substantive judgment is given by Lord Clarke, with whom Lord Hope, Lord Walker, Lord Collins and Lord Wilson agree. The ET had been entitled to disregard the terms included in the written agreement between the parties on the basis that the documents did not reflect what was actually agreed between the parties. In the employment context the courts must be alive to the possibility that written documentation may not accurately reflect the reality of the relationship between the parties. Employers may include terms aimed at avoiding a particular statutory result, even where such terms do not reflect the real relationship: [21] [25]. Where one party to an employment contract seeks to challenge the genuineness of the terms there is no need to show an intention to mislead anyone; it is enough that the written term does not represent the intentions or expectations of the parties. The question in every case is what was the true agreement between the parties: [26] [29]. The correct approach to that is enquiry is that set out by the Court of Appeal in this case. The focus must be to discover the actual legal obligations of the parties. To carry out that exercise the tribunal will have to examine all the relevant evidence. That will include the written term itself, read in the context of the whole agreement, as well as evidence of how the parties conducted themselves in practice and what their expectations of each other were: [31] [33]. Nothing in the judgment is intended in any way to alter those principles which apply to ordinary contracts, and in particular, to commercial contracts: [21]. However, the circumstances in which contracts relating to work or services are concluded are often very different from those in which commercial contracts between parties of equal bargaining power are agreed. This must be taken into account in deciding whether terms of any written agreement in truth represent what was agreed: [34] [35]. In the present case the ET had been entitled to find that: (1) the valeters would perform the services defined in the contract for Autoclenz within a reasonable time and in a good and workmanlike manner; (2) that the valeters would be paid for that work; (3) that the valeters were obliged to carry out the work offered to them and Autoclenz undertook to offer work; and (4) that the valeters must personally do the work and could not provide a substitute to do so. It follows that the Court of Appeal was entitled to hold that those were the true terms of the contract and that the ET was entitled to disregard the terms of the written documents: [37] [38].
This question in this appeal is whether the courts of England or Hungary should have jurisdiction to determine proceedings concerning the future welfare of two young girls. They are Hungarian nationals but were born and have been resident in England all their lives. Under article 8(1) of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as Brussels II Revised) the primary rule is that jurisdiction lies with the courts of the member state where the child is habitually resident. The issue is whether the exception to this rule, found in article 15, permitting the transfer of certain proceedings to a court in another member state if it is better placed to hear the case and this would be in the best interests of the child, should apply in this case. The parents of the girls are Hungarian nationals, who moved to England in 2011. The older girl (Janetta) was born in January 2012. She came to the attention of the UK authorities when the mother gave birth to the younger girl (Ella) in May 2013. Due to the conditions of extreme squalor in which Janetta was found to be living, and the absence of medical attention for Ellas birth, both girls were removed from their parents that day and have been living with foster carers ever since. Care proceedings were issued in January 2014 and the local authority made enquiries regarding the availability and suitability of family members in Hungary to care for the girls. It was in touch with the Hungarian Central Authority (HCA) which proposed the transfer of the girls to Hungary and maintained that only the Hungarian authorities had the right to adopt Hungarian citizen minors. The mother returned to Hungary in 2014 and has since given birth to a third child. She applied for the care proceedings in respect of the girls to be transferred to Hungary pursuant to article 15 of Brussels II Revised. The local authority concluded that there was no viable family placement in Hungary and applied for a placement order for the adoption of the girls, possibly by their foster parents in England, without parental consent. The High Court granted the mothers application (supported by the HCA) to request the transfer of the proceedings under article 15. The Court of Appeal dismissed the appeal brought by the Childrens Guardian and local authority. The Childrens Guardian appeals to the Supreme Court. The issues were the proper approach to the assessment of the childs best interests for the purposes of article 15 and the correctness of the decision to transfer in this case. The Supreme Court unanimously allows the appeal, setting aside the request for a transfer of the proceedings to Hungary and returning the case to the High Court. Lady Hale gives the only judgment. The context in which the question of jurisdiction arises is important. Free movement of workers and their families within the EU has led to many children residing in states of which they are not nationals. Inevitably some of them require protection from ill treatment or neglect, or the risk of it. In every case it is necessary for the court to consider whether the case should be transferred to another state [2]. It is particularly important where the English court might exercise its power to place children for adoption without parental consent, on the basis that the welfare of the child requires this, as this power is unavailable in many other member states [3]. Although the question of the applicability of article 15 to public law care proceedings is currently the subject of a pending reference to the Court of Justice of the European Union in a case from Ireland, the Supreme Court proceeds on the assumption that article 15 is capable of applying and reviews the decisions of the courts below on their merits, rather than making a further reference. The best interests of the girls requires a decision on their future without yet further delay [35, 54]. As for the correct approach to article 15, the language is simple and clear and the court can apply it to the facts of this case without awaiting the outcome of the reference [57]. The principal issue is the nature of the best interests assessment in article 15 and whether it is limited to questions relevant to the choice of forum, as the judge had found. The addition of the best interests test is intended to be an additional safeguard for the child, consistent with the rights of children found in article 24 of the Charter of Fundamental Rights of the European Union [41 42]. While a number of factors will be relevant both to the question of whether a court is better placed to hear the proceedings and of whether transfer is in the best interests of the child, these are separate questions and must be addressed separately. The answer to the second does not inexorably follow from the first [43]. The question is whether the transfer (rather than the eventual outcome) is in the childs best interests but the impact of the transfer on the welfare of the child and on the choices available to the court deciding the eventual outcome must be considered [44]. In the present case, the short term effect of the transfer would be to remove the girls from the home where Ella had lived for virtually her whole life and Janetta for most of hers, where they were happy and settled, to an unfamiliar foster placement in Hungary; and the long term effect would be to rule out one possible option for their future care and upbringing, which was to remain in their present home either through adoption, or a special guardianship order or ordinary residence order. This is not necessarily the outcome which the court should eventually decide, as questions of maintaining links with the girls extended family in Hungary and ethnic background will also be important factors [45 46]. But the judge failed to consider whether the English court could achieve the same outcomes in Hungary as the Hungarian courts, without the need to transfer the case, which would also preserve the options to keep the girls in their present home [48 49]. The English court was also better placed to decide the outcome as it had already heard all the evidence that those involved wished to put before it [50]. These were crucial factors which had been left out of account [51]. The judge had been wrong to apply article 15 to the placement order proceedings but this did not in itself vitiate his decision to transfer the care proceedings. He had the power to stay the placement order proceedings under the wide case management powers of the court and, if it had been right to uphold the transfer, then it would clearly have been right to stay the placement order proceedings [53]. The case is therefore returned to the High Court to determine the future arrangements for the girls, with updated evidence. The full range of outcomes will be open to the court, not simply the stark choice between closed adoption and a foster placement in Hungary, and the judge will apply the extended guidance given by the Court of Appeal in this case [61].
The Abortion Act 1967 (as amended) (the Act) sets out the circumstances in which the termination of a pregnancy can lawfully be brought about and requires the termination to take place in a National Health Service Hospital or approved clinic. Section 4(1) establishes a right of conscientious objection: it provides that no person shall be under any duty, whether by contract or by any statutory or other legal requirement, to participate in any treatment authorised by this Act to which he has a conscientious objection unless, pursuant to subsection (2), it is necessary to save the life or prevent grave permanent injury to the physical or mental health of a pregnant woman. The issue arising in this appeal is the precise scope of this right. The respondents are two experienced midwives employed at the Southern General Hospital in Glasgow as Labour Ward Co ordinators. Both are practising Roman Catholics who have informed their employer of their conscientious objection to taking part in the termination of pregnancy. A small proportion of terminations take place in the Labour Ward rather than the Gynaecology Ward. A midwife will be assigned to give these patients one to one care. The Labour Ward Co ordinator will book in patients, allocate staff in the ward, and supervise and support midwives. The respondents do not wish to undertake these tasks in connection with patients undergoing terminations. They were dissatisfied with the arrangements made to accommodate their objections and raised a grievance with their employer. The hospital took the view that delegation, supervision and support did not constitute participating in the treatment and rejected the grievance. The respondents brought proceedings for judicial review challenging the decision letters received as a result of the grievance procedure. They were unsuccessful before the Lord Ordinary but succeeded before an Extra Division of the Inner House, which granted a declarator that the scope of s 4(1) included the entitlement to refuse to delegate, supervise and/or support staff in the provision of care to patients undergoing terminations save as required by s 4(2). This was a wide interpretation of the right, which was said to extend to any involvement in the process of treatment, the object of which is to terminate a pregnancy. The respondents employers appealed to the Supreme Court. The Supreme Court unanimously allows the appeal and sets aside the declarator made in the Inner House. Lady Hale gives the only substantive judgment, with which the other justices agree. The only question in this case is one of pure statutory construction: the meaning of the words to participate in any treatment authorised by this Act to which he has a conscientious objection. It was common ground that any treatment authorised by this Act meant the process of treatment in hospital for the termination of pregnancy and that participating meant actually taking part in that process, rather than the extended meaning given to participation by the criminal law [11]. Questions of whether the respondents rights to respect for their religious beliefs protected by Article 9 of the European Convention on Human Rights have been unlawfully restricted, or whether their employers have a duty to make reasonable adjustments to the requirements of their job to take account of their religious beliefs do not fall to be decided in this case, but are better suited to resolution in the proceedings which the respondents have also brought in the employment tribunal [23 24]. Nor does the Supreme Court have the evidence from which the impact on a safe and accessible abortion service of a wide or narrow interpretation of section 4(1) could be assessed [25 27]. The course of treatment to which conscientious objection is permitted by s 4(1) is the whole course of medical treatment bringing about the termination of the pregnancy. It begins with the administration of the drugs designed to induce labour and normally ends with the ending of the pregnancy by delivery of the foetus, placenta and membrane. It also includes the medical and nursing care which is connected with the process of undergoing labour and giving birth the monitoring of the progress of labour, the administration of pain relief, the giving of advice and support to the patient, the delivery of the foetus, the disposal of the foetus, placenta and membrane and any specific aftercare required as a result of the process of giving birth. But the ordinary nursing and pastoral care of a patient who has just given birth was not unlawful before the Abortion Act 1967 and thus not made lawful by it [34]. A narrow meaning of the words to participate in is more likely to have been in the contemplation of Parliament when the Act was passed, rather than the host of ancillary, administrative and managerial tasks associated with the acts being made lawful. Participate means taking part in a hands on capacity: actually performing the tasks involved in the course of treatment [37 38]. Paragraph 39 sets out the list of tasks carried out by Labour Ward Co ordinators like the respondents and indicates which specific elements will be within the scope of s 4(1). These include providing advice requested by a midwife connected with the care of a particular patient undergoing a termination (as opposed to ordinary monitoring of all patients); accompanying the obstetrician on ward visits to those patients; providing part of the treatment in response to requests for assistance from the patient or from the midwife caring for her (but not responding by itself to such requests and making a referral if necessary); providing break relief personally for those midwifes; being present if medical intervention is required in connection with the treatment; and forming judgments about the progress of these patients personally. A necessary corollary of the duty of care owed to patients by members of the health care profession is that any conscientious objector is under an obligation to refer the case to a professional who does not share the objection [40].
This case concerns a requirement in the Local Government Pension Scheme (Benefits, Membership and Contributions) Regulations 2009 (the 2009 Regulations) that unmarried co habiting partners be nominated by their pension scheme member partner in order to be eligible for a survivor's pension. The survivor must also show that he or she has been a cohabitant for two years before the date on which the member sent the nomination and has been in that position for two years before the date of death. There is no similar nomination requirement for married or civil partner survivors. The Department of the Environment of Northern Ireland (DENI) included a nomination requirement in the 2009 Regulations in order to ensure parity with other local government pension schemes in Scotland and England and Wales, which at the time had similar requirements. The appellant, Denise Brewster, lived with her partner, William Leonard McMullan, for around ten years before December 2009. On Christmas Eve that year, they became engaged. Mr McMullan died two days later. At the time of his death, Mr McMullan was employed by Translink, a public transport operator, for whom he had worked for approximately 15 years. Throughout that time he had been a member of, and had paid into, the Local Government Pension Scheme (the scheme). Ms Brewster believes that Mr McMullan had completed a form in which he nominated her to be eligible for a survivors pension, but the Northern Ireland Local Government Officers Superannuation Committee (NILGOSC), which administers the scheme, says it did not receive any form. Accordingly, NILGOSC refused to pay her a survivors pension. Ms Brewster applied for a judicial review of this decision. The High Court held that the requirement of nomination of a cohabiting partner in the 2009 Regulations was incompatible with article 14 of the European Convention on Human Rights (which prohibits discrimination) read together with article 1 protocol 1 (peaceful enjoyment of possessions) (A1P1). The Court of Appeal allowed the respondents appeal, finding that the nomination requirement was neither unjustified nor disproportionate. In the meantime, prompted by the judgment of the High Court, the equivalent regulations in England and Wales and in Scotland were amended to remove the nomination requirement in those schemes. When the appellant became aware of these changes, she applied to the Court of Appeal for her appeal to be re opened. Her application was refused and she now appeals to the Supreme Court. The Supreme Court unanimously allows Ms Brewsters appeal and declares that the requirement in the 2009 Regulations that the appellant and Mr McMullan should have made a nomination be disapplied; and that the appellant is entitled to receive a survivors pension under the scheme. Lord Kerr gives the judgment, with which the other Justices agree. The parties are agreed that a survivors pension, as a possession, falls within the ambit of A1P1 and that the appellant, as a surviving unmarried cohabiting partner, enjoys a relevant status for the purpose of article 14 and is in an analogous situation to a surviving married partner or civil partner [44 47]. The only issue, therefore, is whether the interference with the appellants right to property has been objectively justified. The starting point in assessing justification must be the duty of the state under article 14 to secure the appellants right to equal treatment. The duty to secure rights calls for a more proactive role than the requirement to respect rights. The question of justification must be assessed objectively, but the court should not substitute its view for that of the decision maker, particularly in matters of socio economic policy [49]. According to DENI, the objective behind the nomination requirement was to establish the existence of a cohabiting relationship equivalent to marriage or civil partnership and identify the wishes of the scheme member [29]. The 2009 Regulations, however, already require a surviving partner to establish that a genuine and subsisting relationship existed, so the nomination requirement adds nothing to this evidential hurdle. The confirmation of the members wishes has no intrinsic value [31]. Although the status of cohabitation is not an immutable characteristic but a matter of choice, this was not a factor that was considered by the decision maker [59]. The desirability of establishing a bright line rule is also of marginal significance in this case, as no thought was given to the possible difficulties with administration that might arise if the nomination procedure was not included and no evidence was produced that it would cause significant problems in administering the scheme, particularly as in England and Wales it is considered that the nomination procedure is not necessary [62]. Given DENIs acceptance that the provision of a survivor benefit engages A1P1 and that the appellant has the requisite status to rely on article 14, the objective behind the nomination requirement must have been to eliminate unwarranted differences of treatment between married or civil partner survivors on the one hand and unmarried long term partners in a stable relationship on the other [34]. When it comes to general measures of economic or social strategy, the court will generally respect the legislatures policy choice unless it is manifestly without reasonable foundation [53 55]. Where a conscious, deliberate decision by a government department is taken on the distribution of finite resources, the need for restraint on the part of a reviewing court is both obvious and principled. But where the question of the impact of a particular measure on social and economic matters has not been addressed by the government department responsible for a particular policy choice, the imperative for reticence on the part of a court tasked with the duty of reviewing the decision is diminished [64]. A matter is not immune from review purely on account of coming within the realm of social or economic policy it must be shown that a real policy choice was at stake. In the present case, not only were socio economic factors not at the forefront of the decision making process, but the attempt to justify retention of the procedure was characterised by general claims, unsupported by concrete evidence and disassociated from the particular circumstances of the appellants case [65]. There is no rational connection between the objective, which was to remove the difference of treatment between a longstanding cohabitant and a married or civil partner, and the imposition of the nomination requirement and therefore its discriminatory effect cannot be justified [67].
In Cadder v HM Advocate [2010] UKSC 43, the Supreme Court held, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421, that the Crowns reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee at a police station was a violation of his rights under Article 6(3)(c) read with Article 6(1) of the European Convention on Human Rights. The question in this case is whether the Salduz principle extends to the use of any evidence whatever, the existence of which was discovered as a result of answers given by the accused while in custody without access to legal advice; or whether evidence which, although derived from those answers, has an independent life of its own and does not require to be linked to those answers in order to support the Crowns case will normally be admissible. The accused has been indicted at the High Court of Justiciary on a charge of assault and rape. He was detained under section 14 of the Criminal Procedure (Scotland) Act 1995, and was taken to a police station and interviewed. He was not given access to legal advice prior to or during the interview. He was asked where he had been on the date of the alleged rape, and replied that, prior to the alleged incident, he had taken a powdered substance at another pub that had provoked an adverse reaction. He stated that his best friend could back up his statement. The police subsequently took a statement from the friend, who confirmed what the accused had said about his reaction to the drug. But he also described having a telephone conversation with the accused the next morning, when the accused described meeting a woman the previous night and having consensual sex with her. The accused submitted that his rights under Article 6(3) would be contravened if the Crown were permitted to elicit evidence of his police interview, that the evidence of his friend about the telephone conversation was incriminatory evidence which had been obtained as a direct result of his replies during the police interview, and that the Crown should not be permitted to lead this evidence. When this point came before the trial judge for debate the Lord Advocate asked him to refer the issue to this Court. The questions referred by the trial judge are: 1. Whether the act of the Lord Advocate in leading and relying on evidence obtained from information disclosed during the course of a police interview with an accused person without the accused person having had access to legal advice would be incompatible with that persons rights under Article 6(1) and (3)(c) of the Convention, having regard in particular to the decision in Cadder; and 2. Whether the act of the Lord Advocate in leading and relying on the evidence of the friend in these proceedings would be incompatible with the accuseds rights under those Articles. The Supreme Court unanimously allows the appeal. It answers question 1 in the negative, and declines to answer question 2, leaving it to the trial judge to decide whether, if the Crown were to lead and rely on the friends evidence about the telephone conversation, the accused would, in all the circumstances, be deprived of his fundamental right to a fair trial. Lord Hope gives the main judgment, with which Lords Dyson, Kerr and Clarke agree. Lord Brown gives a short concurring judgment. The Salduz principle is not restricted to admissions made without access to legal advice during police questioning (Gafgen v Germany (2010) 52 EHRR 1). The question is whether the rule extends to evidence derived from a detainees answers but which can speak for itself, without it being necessary to refer for support or explanation to anything the detainee said in his police interview [9]. In this case, the statement allegedly made by the accused to his friend in the telephone call was at least partly incriminatory, in relation to the fact of sexual intercourse taking place at the locus. But this of itself does not make it inadmissible. The assumption is that the police would not have obtained this evidence but for what the accused told the police when he was arrested. If that is the case, the question is whether the fact that the source of the friends information was the accused himself renders the friends evidence inadmissible [15]. The guiding principle in Scots law is Lawrie v Muir 1950 JC 19, which states that an irregularity in the method by which evidence has been obtained does not necessarily make that evidence inadmissible in a criminal prosecution [17]. The law of England and Wales is to the same effect (Section 76(4) of the Police and Criminal Evidence Act 1984l. Ultimately the question is whether it would be fair to admit the evidence [18]. In Gafgen, the ECtHR noted that there is no clear consensus about the exact scope of application of the exclusionary rule. In particular, factors such as whether the impugned evidence would, in any event, have been found at a later stage, independently of the prohibited method of investigation, may have an influence on the admissibility of such evidence [22]. Where the boundary lies between what the Convention requires to be automatically excluded because it is derived from what the person has said and what is not remains unclear [23], and there have been no other cases dealing with the issue since Gafgen. Strasbourg has not, however, suggested that leading evidence of the fruits of questioning that is inadmissible because the accused did not have access to a lawyer when he was being interviewed will always and automatically violate the accuseds rights under Article 6(1) and (3)(c). Regard can be had to the position in England and Wales, where, subject to the courts discretionary power to exclude it under section 78(1), evidence derived from an involuntary statement which can be adduced without having to rely on that statement is admissible [24]. Assistance may also be found in the Canadian Supreme Court case of Thomson Newspapers Ltd v Canada (Director of Investigation and Research) [1990] 1 SCR 425, where attention was drawn to the distinction between evidence that simply would not have existed independently of the exercise of the power to compel it; and evidence derived from compelled testimony which is, by definition, evidence that existed independently of the compelled testimony [25]. This supports the conclusion to be drawn from what Strasbourg has said so far on this issue: that there is no absolute rule that the fruits of questioning of an accused without access to a lawyer must always be held to be a violation of his rights under Article 6(1) and (3)(c). It is one thing if the impugned evidence was created by answers given in reply to such impermissible questioning. It is another if the evidence existed independently of those answers, so that those answers do not have to be relied upon to show how it bears upon the question whether the accused is guilty of the offence in question. The question whether such evidence should be admitted has to be tested by considering whether the accuseds right to a fair trial would be violated by the leading of the evidence [27].
This judgment is one of a number given by the Supreme Court today on issues arising from alleged complicity of United Kingdom officials in allegedly tortious acts of the UK or other states overseas. Mr Belhaj and his wife were detained in Kuala Lumpur in 2004. The respondents allege that MI6 informed the Libyan authorities of their whereabouts, leading to them being rendered to Libya against their will. They allege that they were unlawfully detained by Malaysian officials in Kuala Lumpur, Thai officials and US agents in Bangkok, and finally in Libya. They allege that the United Kingdom arranged, assisted and encouraged their rendition, as well as conspired in and assisted torture, inhumane and degrading treatment inflicted on them by the US and Libyan authorities. Mr Rahmatullah was detained by British forces in Iraq on 28 February 2004 on suspicion of being a member of the proscribed organisation Lashkar e Taiba. Within a few days he was transferred into US custody. By the end of March 2004 the US authorities had transferred him to Bagram Airbase in Afghanistan, where he was detained by such authorities without charge for over ten years. Part of his claim is that, in relation to this ten year period, British officials acted in combination with the US authorities and/or assisted or encouraged his unlawful detention and mistreatment by the US authorities. Rahmatullah is said to be representative of other claims currently before the High Court. The issues before the Court are whether, assuming for present purposes that the allegations made are true, the claims of UK complicity for unlawful detention and mistreatment overseas at the hands of foreign state officials are properly triable in the English courts. The appellants rely on the doctrines of state immunity and/or foreign act of state. In Belhaj the High Court held that there was no state immunity but that the claims were barred being based on foreign acts of state. The Court of Appeal affirmed the decision on state immunity but held the doctrine of foreign act of state to be: (i) limited to acts occurring within the jurisdiction of the relevant foreign state; and (ii) subject to a public policy exception for grave human rights violations. In Rahmatullah, the High Court held that neither doctrine applied. Both cases come before the Court on appeal, in the case of Rahmatullah by leapfrog order. The Supreme Court unanimously dismisses the Governments appeals. Lord Mance gives the lead judgment. Lord Neuberger gives a concurring judgment, with which Lord Wilson, Lady Hale and Lord Clarke agree. Lord Sumption adds a further concurring judgment, with which Lord Hughes agrees. State immunity is based on the sovereign equality of states and international comity [12]. The appellants submit that state immunity covers (under the concept of indirect impleading) cases where it is integral to a claim against United Kingdom authorities to prove that foreign officials acted contrary to their own laws. They rely on the concepts of interests or activities in Article 6(2)(b) of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property [25]. However, the Court concludes that none of those concepts covers reputational disadvantage that could be suffered by foreign states [29, 195]. The relevant foreign states will not be affected in any legal sense by proceedings to which they are not party. The pleas of state immunity fail accordingly [31, 197]. Lord Mance identifies three types of foreign act of state rule recognised in current English authority, broadly also reflected in the judgment of Lord Neuberger. The first is a rule of private international law, whereby a foreign states legislation will normally be recognised and treated as valid, so far as it affects movable or immovable property within that states jurisdiction [35, 135]. The second rule (taking, without necessarily endorsing current Court of Appeal authority) goes no further than to preclude a domestic court from questioning the validity of a foreign states sovereign act in respect of property within its jurisdiction, at least in times of civil disorder [38, 74 78]. Even if this rule were, however, viewed as extending more generally to acts directed against the person, it would be subject to a public policy exception which would permit the allegations of complicity in torture, unlawful detention and enforced rendition in this case to be pursued in the English courts [80, 156]. Thirdly, a domestic court will treat as non justiciable or will refrain from adjudicating on or questioning certain categories of sovereign act by a foreign state abroad, even if outside the jurisdiction of that state [40, 123]. Whether an issue is non justiciable under the third rule falls to be considered on a case by case basis, having regard to the separation of powers and the sovereign nature of activities [90 95]. English law will take into account whether issues of fundamental rights are engaged, including liberty, access to justice and freedom from torture [98, 101]. The international relations consequences of a court adjudicating on an issue may also feed into the assessment under the third rule [41]. In this case, the circumstances do not lead to a conclusion that the issues are non justiciable [96 105, 167 8]. Lord Neuberger underlines the limits of the foreign act of state doctrine. A public policy exception qualifies the first and (so far as it exists) second rules; and, if necessary, also the third rule [157]. Lord Sumption identifies in the case law two relevant principles: municipal law act of state corresponding generally with the first two rules of Lord Mances framework [228], and international law act of state corresponding generally with Lord Mances third rule. Municipal act of state is confined to acts done within the territory of the relevant foreign state [229]. International law act of state requires the English courts not to adjudicate on the lawfulness of the extraterritorial acts of foreign states in their dealings with other states or the subjects of other states, since these occur on the plane of international law [234]. But the doctrine does not apply simply because the subject matter may incidentally disclose that a state has acted unlawfully and it is subject to a further public policy exception, potentially applicable in cases of violations of jus cogens under international law (fundamental norms from which no derogation is permitted) and of fundamental human rights [248]. It is unnecessary to decide whether: a) the UN Convention against Torture requires any modification of the doctrine of foreign act of state to give a universal civil remedy for torture [11(v)(a), 108]; b) article 6 of the European Convention on Human Rights precludes reliance on state immunity or foreign act of state; or to say more than that the appellants would face difficulties on each point [11(v)(b), 281 4]. In the result, state immunity is no bar to the claims, and the appellants have not, on the assumed facts, shown any entitlement to rely on the doctrine of foreign act of state to defeat the present proceedings. The appeals are dismissed and the cases may proceed to trial.
In 2003 the appellant, Mr Macklin, was convicted of possession of a handgun in contravention of section 17 of the Firearms Act 1968, and a further charge of assaulting two police officers by repeatedly pointing the handgun at them. The issue in dispute at his trial was whether he was the person who had been pursued by the officers and who had pointed the gun at them. He was identified at trial by both officers. One of them had recognised the appellant at the time of the incident, and the other had identified him from a selection of photographs shortly afterwards. Their evidence was challenged in cross examination. The judge warned the jury about the risk that visual identification evidence might be unreliable, but gave no specific directions concerning the risks associated with the identification of an accused person in court. Some years later the Crown disclosed material which had not been disclosed at the trial, including statements given to the police by witnesses. One witness gave a description inconsistent with the appellants appearance. Two witnesses failed to identify the appellant when shown his photograph. It was also disclosed that the police had found fingerprints belonging to someone else in the car, and that that person had a criminal record. In 2012 the appellant was granted leave to appeal against his conviction, on the basis of (i) the Crowns failure to disclose material evidence; (ii) the Crowns leading and relying on dock identifications by the police officers, without having disclosed material evidence and without the officers having participated in an identification parade; and (iii) a contention that the judge had misdirected the jury in failing to warn them of the dangers of dock identification evidence. The appellant argued that, with respect to the first two matters, the Lord Advocate had acted in a manner incompatible with article 6(1) of the European Convention on Human Rights. The appellants appeal was refused by the High Court of Justiciary. He was subsequently granted permission to appeal to the Supreme Court. The Supreme Court unanimously dismisses Mr Macklins appeal. Lord Reed gives the leading judgment. Lord Gill gives a concurring judgment. The other justices agree with both judgments. Lord Reed explains that the jurisdiction of the Supreme Court under section 288AA of the Criminal Procedure (Scotland) Act 1995 is not to sit as a criminal appeal court exercising a general power of review, but to determine compatibility issues, which are questions as to whether a public authority has acted unlawfully under section 6(1) of the Human Rights Act 1998 or has acted incompatibly with EU law, or whether a provision of an Act of the Scottish Parliament is incompatible with Convention rights or EU law [5 7]. As a consequence of section 34 of the Scotland Act 2012, which introduced compatibility issues into the 1995 Act by inserting a new section 288ZA, and the Scotland Act 2012 (Transitional and Consequential Provisions) Order 2013, the first two grounds raised by the appellant were converted from being devolution issues to compatibility issues. However the third ground, which concerns the directions given by the trial judge, did not give rise to a devolution issue which could be converted into a compatibility issue [10]. The question of whether a failure of disclosure has resulted in a breach of article 6(1) ECHR has to be considered in the light of the proceedings a whole, including the decisions of appellate courts. This involves consideration firstly of whether the prosecution failed to disclose all material evidence, in circumstances in which such a failure would result in a violation of article 6(1), and secondly whether the defect in the trial procedures was remedied by the procedure before the appellate court [13]. As held in McInnes v HM Advocate [2010] UKSC 7, on the question of whether withheld material should have been disclosed, the test is whether the material might have materially weakened the Crowns case or materially strengthened the defences case. Where this is satisfied, the test concerning the consequences of the non disclosure is whether, taking all the circumstances of the trial into account, there is a real possibility that the jury would have arrived at a different verdict [14]. The Crown conceded before the High Court of Justiciary that the statement of the witness who had given a description inconsistent with the appellants appearance, and the statements given by the witnesses who failed to identify the appellant when shown his photograph, should have been disclosed. The High Court applied the first test in McInnes to the remaining withheld evidence and explained its reasons for concluding that the material did not require to be disclosed. In relation to the material which should have been disclosed, the High Court then applied the second test in McInnes and explained its reasons for concluding that there was no real possibility that the jury would have arrived at a different verdict [15 16]. The High Court also considered whether the Crowns leading of the identification evidence from the police officers had resulted in the Lord Advocates acting incompatibly with article 6(1) and concluded that it had not [17]. The fact that under current Crown practice, the withheld material would have been disclosed does not lead to the conclusion that the non disclosure breaches article 6(1); it is the first of the McInnes tests which must be applied [18]. In determining a compatibility issue, applying Lord Hopes dicta in McInnes, the Supreme Court can decide whether the High Court has adopted the correct test, but not whether it then applied that test correctly to the facts [20]. It was conceded that the Supreme Court might have jurisdiction to intervene if the High Court merely purported to apply the McInnes test but did not actually apply it. But this does not permit examination of whether the test was correctly applied to the facts. This principle gives effect to the finality accorded to the High Courts decisions. It should not be undermined by permitting dressed up challenges to the application of the correct test [22]. In the present case it is clear from the reasoning of the High Court that it identified the correct test and also applied it to the circumstances of the case. Comparison with Holland v HM Advocate [2005] UKPC D 1 does not assist, as the Judicial Committee of the Privy Council was performing a different exercise and its decision reflected the particular circumstances of that appeal [23]. Mr Macklins appeal should therefore be dismissed [24]. Lord Gill gives a concurring judgment, finding that the High Court identified and applied the correct test, and that its conclusions on the significance of the non disclosure in relation to the verdict do not fall within this Courts jurisdiction [25 49].
Virgin obtained judgment from the English Court of Appeal (the CA) against Zodiac for damages to be assessed for the infringement of certain claims (the relevant claims) in a European Patent. The CA found their patent to have been valid and infringed by Zodiac. Subsequently, the Technical Board of Appeal (the TBA) of the European Patent Office (the EPO) ruled that that the relevant claims were invalid because they had been anticipated in prior art, and retrospectively amended the patent so as to remove, with effect from the date of grant, all the relevant claims. Virgin submitted that it was nevertheless entitled to recover damages for infringement because the CAs conclusions that the patent (including the relevant claims) was valid and that the relevant claims were infringed by Zodiac were res judicata as between it and Zodiac on the subsequent assessment of damages, and that it was not open to Zodiac to reply on the TBAs amendment to the patent, as this would be inconsistent with the orders made by the CA. That argument had succeeded before the CA in similar circumstances in previous cases, and the CA had followed those decisions in the present case. Zodiacs case is that the unamended patent has been retrospectively amended, and that the relevant claims therefore no longer exist, and are deemed never to have existed. It submits that no issue of res judicata arises because that was not the situation considered by the CA. The Supreme Court unanimously allows the appeal and declares that Zodiac are entitled to rely on the amendment of patent in answer to Virgins claim for damages on the enquiry. Lord Sumption gives the lead judgment, Lord Neuberger gives a concurring judgment, and the other members of the Court agree with both judgments. After a review of the law of res judicata [17 26], the Court gives two related reasons why Zodiac cannot be precluded from relying on the decision of the TBA on the enquiry as to damages. One is that it is relying on the more limited terms of a different patent which, by virtue of the TBAs decision, must at the time of the enquiry be treated as the one that existed at the relevant time, whereas the unamended patent, relied on by Virgin, must be treated as if it had never existed. The second reason is that Zodiac is not seeking to reopen the validity of the relevant claims, which was one of the questions determined by the CA. The invalidity of those claims may be the reason the TBA amended the patent, but Zodiac is relying on the mere fact of amendment, not the reasons why it happened [27, 53, 54]. The CA reached a different conclusion because it followed a line of cases holding that a patentee, whose patent (in proceedings against a particular defendant) is found to be valid and infringed, is entitled to claim damages from the defendant for the infringement without regard to a subsequent revocation of the patent, even though as a matter of English law the revocation of a patent for invalidity relates back to the date of grant [28, 48]. The Court holds that this line of cases was wrongly decided. Their major fallacy is the assumption that cause of action estoppel was absolute generally rather than absolute only as regards points actually determined by the earlier decision. Accordingly, the decisions in those cases had no regard to the fact that the consequences of the patents subsequent revocation had not been, and could not have been, determined, or even taken into account, in the earlier decision, because it had not happened by the time of that decision. They were also wrong to suppose that, by taking into account the subsequent revocation, a court would be rehearing the question of validity decided by the judgment on liability. The revocation was a decision in rem determining the status of the patent as against the world [32, 48]. It had been revoked by the authority which had granted it and it must be treated as never having existed. The issue raised on the enquiry was not invalidity but revocation [32]. Accordingly, where judgment is given in an English court that a patent (whether English or European) is valid and infringed, and that patent is subsequently revoked or amended (whether in England or at the EPO), the defendant is entitled to rely on the revocation or amendment on the enquiry as to damages [35]. The Supreme Court also proposed that the current procedural guidelines laid down by the CA, which propose that the English court should normally refuse to stay its own proceedings if it would be likely to resolve the question of validity significantly earlier than the EPO, should be re examined [38, 69].
This appeal concerns the liability of employers in the knitting industry of Derbyshire and Nottinghamshire for hearing loss suffered by employees prior to 1 January 1990. The central issue is whether liability existed at common law in negligence and/or under s.29(1) of the Factories Act 1961 towards an employee who suffered noise induced hearing loss due to exposure to noise levels between 85 and 90dB(A)lepd. Mrs Baker, the Respondent, worked in a factory in Sutton in Ashfield, Nottinghamshire, from 1971 until 2001. From 1971 to 1989 she was exposed to noise which was found at trial to have been between 85 and 90dB(A)lepd and which had led to her sustaining a degree of noise induced hearing loss. The measure db(A)lepd indicates exposure at a given sound level over a period of eight hours. Mrs Baker brought a claim against her employers, for whom liability now rests with Quantum Clothing Group Ltd, one of the Appellants. A number of other individuals brought similar claims against Meridian Ltd, Pretty Polly Ltd and Guy Warwick Ltd, and all the claims were decided together as test cases. Only Mrs Baker was found to have suffered hearing loss due to noise exposure in her employment and the other claims were therefore dismissed. Mrs Bakers claim was dismissed on the different basis that her employers had not committed any breach of common law or statutory duty. The Court of Appeal allowed an appeal by Mrs Baker and reached conclusions less favourable to all four employers than those arrived at by the judge at first instance. The Court held that liability at common law arose in January 1988 for employers with an average degree of knowledge, which included Guy Warwick. Quantum, Meridian and Pretty Polly were found to have had greater than average knowledge and were liable at common law from late 1983. S.29(1) of the Factories Act 1961 provides that, every place at which any person has at any time to work shall, so far as is reasonably practicable, be made and kept safe for any person working there. The Court held that the section imposes a more stringent liability than at common law and in particular that what was safe was to be judged irrespective of whatever was regarded as an acceptable risk at the time. On this basis the Court held that the date from which liability arose under the section was January 1978. The present appeal has been brought by Quantum, Meridian and Pretty Polly, with Guy Warwick intervening. The Supreme Court allows the appeal by a majority of 3:2 and restores the judges decision at first instance. Lord Mance gives the lead judgment. Lord Dyson gives an additional concurring judgment, and Lord Saville agrees with both. Lord Kerr and Lord Clarke give dissenting judgments. The Supreme Court first dealt with common law liability in negligence. The central question was whether a 1972 Code of Practice published by the Department of Employment, which recommended a noise exposure limit of 90dB(A)lepd, constituted an acceptable standard for average employers to adhere to during the 1970s and 1980s. The judge at first instance had found that it did until the terms of a draft European Directive of 1986, which proposed a lower limit, came to be generally known in 1988 via a consultative document. The Court upheld that conclusion of the judge. Examination of the underlying statistical material did not undermine the relevance of the Code as a guide to acceptable practice. It was official and clear guidance which set an appropriate standard upon which a reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s. The Court also endorsed a further two year period beyond 1988 allowed by the judge for implementing protective measures, thus meaning that the average employer had no common law liability before 1 January 1990. The Court of Appeal had been incorrect to replace that period with a period of six to nine months. On the facts, Quantum and Guy Warwick were in the position of average employers to whom the 1 January 1990 date applied. Courtaulds and Pretty Polly, however, were in a special position. By the beginning of 1983 they had an understanding of the risk that some workers would suffer damage from exposure to between 85 and 90dB(A)lepd, which distinguished their position from that of the average employer. Allowing a further two years to implement protective measures, they were potentially liable at common law from the beginning of 1985. The Court then dealt with liability under s.29(1) of the 1961 Act. In construing the section, the Court first held that a workplace may be unsafe within the meaning of the section not only due to its physical fabric, but also due to activities carried on in it. The next question was whether the section applies to risks created by noise. The Court held that it did, on the basis that the section could accommodate attitudes to safety that were not held at the time when it was enacted. Thirdly, the Court held that what is safe is a relative concept that must be judged having regard to general knowledge and standards at the time of the alleged breach of duty. Finally, the Court held that the qualification, so far as is reasonably practicable, also allows such general knowledge and standards to be taken into account. Applying that construction, the section did not impose in this respect a more stringent liability than at common law. The employers by complying with the Code of Practice were not in breach of the statutory duty before like dates as those from which they were potentially liable at common law. Lord Kerr and Lord Clarke dissented. They held that the terms of the Code of Practice and other material available by 1976 were such that employers should have been aware that damage to hearing could occur at levels below 90dB(A)lepd and that certain individuals in the workforce would be particularly vulnerable at those levels. Further, the employers should have been aware that they could have reduced that risk at not inordinate cost by the provision of ear protection. Liability therefore arose at common law from the late 1970s onwards. As to liability under s.29(1), the concept of safety, unlike the qualification of reasonable practicability, does not include an assessment of what was foreseeable at the time. On the facts, the workplaces were not safe and it was reasonably practicable to provide ear protection. The dissenting Justices therefore held that employers were liable under the section from 1978 as held by the Court of Appeal.
This appeal concerns the application of the Cancellation of Contracts made in a Consumers Home Regulations 2008 (the 2008 Regulations). The respondent, Mr Swift, owns a removal business. The appellant, Dr Robertson, telephoned him on 27 July 2011 to ask for a quotation for moving his furniture from Weybridge to Exmouth on 2 August 2011. Mr Swift visited his home the following day to inspect the items to be moved and while he was there the two men agreed a price of 7,595.40. Mr Swift then sent a removal acceptance document by email, which Dr Robertson signed and handed to Mr Swift on his second visit to the house that day to deliver packing materials. This document provided for charges in the event of cancellation of the contract less than 10 days before the removal was due to start. Dr Robertson paid a deposit of 1,000. Over the following days Dr Robertson made enquiries of other removal firms and found one which could undertake the work for 3,490. He telephoned Mr Swift to tell him he wished to cancel the contract, and sent him a letter giving notice of cancellation on 1 August 2011. He refused to pay the cancellation charges on the ground that he had been entitled to cancel the contract by virtue of the 2008 Regulations, and when Mr Swift issued proceedings, he denied liability and counterclaimed for the return of his deposit. Dr Robertsons submissions failed at trial, and on appeal in the Exeter County Court, but the Court of Appeal found that the 2008 Regulations did apply in the circumstances of his case. It held that they prevented Mr Swift from enforcing the contract against Dr Robertson. However, Dr Robertson had not been entitled to cancel the contract because Mr Swift had failed to give him the required notice of his right to cancel. The contract had remained alive and Dr Robertson could not therefore recover his deposit. Dr Robertson appealed against the dismissal of his counterclaim to the Supreme Court. The Supreme Court unanimously allows Dr Robertsons appeal. It holds that the 2008 Regulations give consumers the right to cancel contracts made in their homes before and for 7 days after notice of the right to cancel is served, and Dr Robertson was therefore entitled to exercise this right and to recover the deposit he had paid. Lord Kerr, with whom the other judges all agree, gives the only judgment. The 2008 Regulations gave effect to Council Directive (85/577/EEC) (the Directive). The Directive was designed to protect consumers against the risks inherent in the conclusion of contracts away from business premises. It requires traders to give consumers written notice of their right to cancel the contract at the time the contract is concluded and asks member states to ensure through national legislation that appropriate consumer protection measures are put in place for cases where this notice is not given [8 12]. The Court of Appeal was correct to conclude that the 2008 Regulations applied in the circumstances of this case, and that the contract was therefore unenforceable by Mr Swift, even though there had been two visits to Dr Robertsons home at his express invitation. It had been open to member states to adopt provisions that were more favourable to consumers than those required by the Directive [17 19]. The Court of Appeal had, however, erred when it found that Dr Robertson was not entitled to cancel the contract unless and until he had been served with notice of his right to cancel. The 2008 Regulations should be interpreted in the light of the wording and purpose of the Directive [20 22, 28]. The right to cancel contracts made at home was central to the protection afforded to consumers under the Directive and the requirement to give notice of the right to cancel was not a technical prerequisite to the exercise of the right [23 24]. To hold that it could be nullified by a failure or refusal of a trader to give written notice of the right to cancel to a consumer would run directly counter to the overall purpose of the Directive and create a considerable gap in the level of protection provided [25]. Accordingly the cancellation period referred to in Regulation 2 (1) should be interpreted to mean the period commencing from when the trader is required to give the consumer a written notice of his right to cancel pursuant to regulation 7(2) and expiring 7 days after receipt by the consumer of a notice of the right to cancel [32]. On this basis Dr Robertson was within the cancellation period provided by the 2008 Regulations when he sent his letter of 1 August 2011 and he was entitled to recover his deposit [34].
This test case raises a question about the jurisdictional boundary between the specialist tax tribunal and the ordinary courts, as well as an underlying issue as to the approach taken by the Revenue to enquire into a claim for loss relief made as part of a tax avoidance scheme used by some 200 taxpayers [1]. On 31 October 2008, Maurice David Cotter filed a tax return for the 2007/08 year of assessment. He made no claim for loss relief in the return, and let the Revenue calculate his tax for that tax year. This resulted in a calculation of income and capital gains tax of 211,927.77 [2]. In January 2009, Mr Cotters accountants wrote to the Revenue enclosing a provisional 2007/08 loss relief claim and amendments to his 2007/08 return. These added various entries to boxes in the return intimating that Mr Cotter had sustained an employment related loss of 710,000 in the tax year 2008/09 for which he claimed relief in tax year 2007/08 under the Income Tax Act 2007 [3 4]. He acknowledged that his interpretation of the applicable tax law might not accord with that of the Revenue and stated, for these reasons I assume you will open an enquiry [5]. His accountants then sent a copy of the loss relief claim to a Revenue recovery office, stating: As a result of this claim no further 2007/08 taxes will be payable by Mr Cotter [6]. The Revenue wrote to Mr Cotters accountants to confirm that the tax return had been amended and that enquiries would be opened into the claim and the tax return. It indicated that it did not intend to give effect to any credit for the loss until those enquires were complete. On the same day, it issued a fresh tax calculation of 211,927.77. The Revenue then wrote to Mr Cotter intimating that it was enquiring into the amendment and the loss claim under Schedule 1A to the Taxes Management Act (TMA). His accountants informed the recovery office that they had asked the Revenue to amend the self assessment calculation [7]. They asserted that (i) no further taxes were payable for 2007/08 because of the loss claim which was the subject of enquiry and (ii) that if tax were due as a result of an enquiry under section 9A TMA, it was not payable until the enquiry had been completed. Meanwhile, advisors acting for Mr Cotter wrote to the Revenue arguing that legal proceedings against him would be unlawful because his self assessment showed that no tax was payable as at 31 January 2009, and the Revenue had not amended his self assessment return [8]. On 22 June 2009, the Revenue issued proceedings in the county court seeking recovery of 203,243, namely the income and capital gains tax for 2007/08 and the first payment of account for 2008/09. Mr Cotter argued that he was entitled to use his loss claim to reduce to nil the tax otherwise payable for 2007/08 and that the First tier Tribunal (Tax Chamber) had exclusive jurisdiction to determine whether that was the case [9]. The proceedings were transferred to the High Court (Chancery Division) and on 14 April 2011 David Richards J held that the court had jurisdiction and that Mr Cotter was not entitled to rely on his claim for loss relief as a defence to the Revenues claim [10]. This was overturned in the Court of Appeal. Lady Justice Arden (with whom Lords Justices Richards and Patten agreed) held that if the Revenue wished to dispute an item contained in a tax return it had to follow the procedure set out in section 9A TMA, which would have given Mr Cotter a right to appeal to the tribunal [11]. The Supreme Court unanimously allows the Revenues appeal, restoring the relevant provisions of the High Courts order [35]. The central question is whether the Revenue was correct to have carried out its enquiry under Schedule 1A to TMA (allowing postponement of relief until completion of the enquiry), or whether any enquiry ought to have been made under section 9A (with effect given to the claim meantime). Section 9A allows an officer to enquire into anything contained in the return, or required to be contained in the return, including any claim or election included in the return [19]. Part of the appeal therefore involved a consideration of the meaning of a return in the relevant legislation. Delivering the Courts judgment, Lord Hodge provides guidance as to how the system works [33 36]. In summary, where a taxpayer makes a claim for relief in a tax return form which is, on its face, relevant to that particular year of assessment, or where he chooses to calculate the amount payable and allows for the relief in his calculation, the Revenue may correct the tax return if it disagrees with the claim for relief. If the taxpayer rejects the amendment, the Revenue may institute a section 9A enquiry. Upon the closure of that enquiry, the taxpayer will have a right of appeal to the tribunal. In the meantime, effect is given to the loss relief claim [27; 34]. If, by contrast, the taxpayer chooses to let the Revenue calculate his tax but includes a claim for relief in a tax return form which is clearly not relevant to the calculation of tax for that particular year of assessment, the Revenue may ignore the claim in its calculation. In other words, it may treat the claim as made otherwise than in a return, and Schedule 1A TMA shall apply. The Court considers that, in the present context, a return refers to the information in the tax return form which is submitted for for the purpose of establishing the amounts in which a person is chargeable to income tax and capital gains tax for the relevant year of assessment and the amount payable by him by way of income tax for that year (section 8(1) TMA) [24 25; 35]. Lord Hodge notes that whilst treating everything on the tax return form as the tax return is attractive in its simplicity, it would expose the Revenue to irrelevant claims made in the form which have no merit and which serve only to postpone the payment of tax due [20 21]. Having concluded, correctly, that the claim in respect of losses incurred in 2008/09 did not alter the tax chargeable or payable in relation to 2007/08, the Revenue was entitled indeed obliged to use Schedule 1A as the vehicle for its enquiry (section 42(11)(a) TMA) [26]. The county court and the High Court had jurisdiction in this case as it was not an appeal against an assessment to tax in respect of a particular year of assessment (the exclusive jurisdiction of the tribunal [29]) but a question of whether a claim for relief for losses incurred in 2008/09, which the taxpayer had made in his tax return form for 2007/08, constituted a defence to the Revenues claim for immediate payment of the tax it had calculated as payable in respect of 2007/08 [29 32].
This appeal concerns the imposition of two types of indeterminate sentences of imprisonment. The first is a sentence of life imprisonment, under which a prisoner is entitled to be considered by the Parole Board for release on licence once he has served a fixed term of imprisonment specified by the sentencing judge. The second is a sentence of imprisonment for public protection (IPP) which a judge can impose on a defendant convicted of a serious offence pursuant to s 225 Criminal Justice Act 2003 (as amended), where he finds that there is a significant risk that the defendant will commit further offences that will cause serious harm to members of the public. Again, the sentencing judge will specify a minimum term to be served before the prisoner will be entitled to be considered by the Parole Board for release on licence. The test applied by the Parole Board is the same in the case of both sentences. It must be satisfied that it is no longer necessary for the protection of the public that the prisoner be confined. Mr Smith has numerous convictions for robbery related offences. On 24 January 2000 he received a mandatory sentence of life imprisonment upon further such convictions, with a minimum term of four years. He satisfied the Parole Board that he should be released on 25 September 2004 but was arrested in 2008 on suspicion of having committed eight armed robberies between 2006 and 2007. His arrest resulted in his recall to prison under his life sentence for breach of his licence conditions. He pleaded guilty to the offences and was sentenced on 10 October 2008 to a sentence of IPP with a minimum term to be served of six years. Mr Smith appealed against the imposition of the sentence of IPP on two alternative grounds. The first was that it was unlawful because the judge could not have been satisfied for the purposes of s 225 that he represented a significant risk to the public, given that he had been recalled to prison under his life sentence and would have to satisfy the requirements of the Parole Board before he could be released. The second was that the judge should not have exercised his discretion under s 225 to impose the sentence of IPP when it would achieve no additional benefit. The Supreme Court unanimously dismisses the appeal. It holds that the imposition of the sentence of IPP on Mr Smith was both lawful and open to the sentencing judge in the exercise of his discretion. Lord Phillips gives the judgment of the court. On the lawfulness issue, the wording of s 225(1)(b) is in the present tense and requires the sentencing judge to impose a sentence of IPP if there is a significant risk of harm to the public. It would place an unrealistic burden on the judge to require him to form a view of the position at the end of the minimum term of imprisonment. It is implicit that the risk must be assessed on the premise that the defendant is at large at the moment the sentence is passed [15]. On the exercise of discretion, although it was not sensible to impose a sentence of IPP in circumstances where it will achieve no benefit, in this case it enabled the sentencing court on the most recent occasion to express its finding that Mr Smith did in fact satisfy the dangerousness provisions of the Criminal Justice Act 2003. Given that the Parole Board had earlier released him on the basis that he did not pose a risk of serious harm to the public, the judge could not be criticised for imposing a sentence that demonstrated that the contrary was the case [19].
The appellant was employed as a home carer by the respondents. Her work involved visiting clients in their homes and providing personal care. On 18 December 2010, at around 8pm, she was required to visit an elderly lady. There had been severe wintry conditions in central Scotland for several weeks, with snow and ice lying on the ground. The appellant was driven to the house by a colleague, who parked her car close to a public footpath leading to the house. The footpath was on a slope, and was covered with fresh snow overlying ice. It had not been gritted or salted. The appellant was wearing flat boots with ridged soles. After taking a few steps, she slipped and fell, injuring her wrist. The Lord Ordinary, relying on expert evidence, found the respondents liable for the appellants injury on the basis that they did not provide her with protective footwear. The Lord Ordinarys decision was reversed by an Extra Division of the Inner House. The appellants appeal to the Supreme Court concerned the admissibility of evidence given by the expert witness, and whether the respondents had been in breach of their statutory duties or negligent. The Supreme Court unanimously allows Ms Kennedys appeal. Lord Reed and Lord Hodge (with whom Lady Hale, Lord Wilson and Lord Toulson agree) give the judgment of the court. Lord Reed and Lord Hodge provide guidance on the evidence of skilled witnesses under Scots law, addressing (i) admissibility [39 56]; (ii) the responsibilities of a partys legal team [57]; (iii) the courts policing of the performance of the experts duties [58 59]; and (iv) economy in litigation [60 61]. In the present case, the expert witness had experience and qualifications in health and safety [9]. His evidence on factual matters was relevant and admissible. He had the necessary experience and qualifications to explain how anti slip attachments reduced the risk of slipping [62 63]. His evidence on health and safety practice was relevant [64]. Whilst some of his statements might appear to be inadmissible expressions of opinion on the respondents legal duties, an experienced judge could treat the statements as opinions as to health and safety practice, and make up his own mind on the legal questions [66]. The witnesss evidence provided a basis for the Lord Ordinary to determine whether the defenders had suitably and sufficiently evaluated the risks and identified the measures needed to protect health and safety [67]. The statutory case was based first on the Management of Health and Safety at Work Regulations 1999 (the Management Regulations), which implement Directive 89/391/EEC (the Framework Directive), and under regulation 3(1) require a suitable and sufficient risk assessment to be carried out [85 89], and secondly on the Personal Protective Equipment at Work Regulations 1992 (the PPE Regulations), which implement Directive 89/656/EEC (the PPE Directive), and under regulation 4(1) require suitable personal protective equipment to be provided to employees who may be exposed to a risk to their health or safety while at work except to the extent that such risk has been adequately controlled by other means which are equally or more effective [93 97]. The most logical way to approach the issues was through a consideration of the suitability and sufficiency of the risk assessment [89]. The appellant was exposed to a risk of slipping and falling on snow and ice which was obvious and was within the knowledge of the respondents, who had previous experience of home carers suffering such accidents each year. The risk had been identified in a 2005 assessment, and risks of that general nature were also identified in a 2010 assessment [90]. No consideration had been given to the possibility of personal protective equipment. The precautions taken, in the form of advice to wear appropriate footwear, did not specify what might be appropriate. The Lord Ordinary was entitled to conclude that there had been a breach of regulation 3(1) of the Management Regulations [92]. The appellant was at work whilst she was travelling between the home of one client and that of another in order to provide them with care. Contrary to the view of the Extra Division, the words while at work in regulation 4(1) of the PPE Regulations, and whilst they are at work in regulation 3(1) of the Management Regulations, mean that the employee must be exposed to the risk during the time when she is at work. They do not refer to the cause of the risk [100]. The Directives encompass not only risks arising specifically from the nature of the activities which the worker carries out, but also risks arising from the natural environment to which the worker is exposed whilst at work [102]. The Lord Ordinary found that anti slip attachments were available which would have been suitable to reduce the risk of home carers slipping and falling on ice, and that the risk was not adequately controlled by other means which were equally or more effective. He was therefore entitled to conclude that there had been a breach of regulation 4(1) of the PPE Regulations [106]. In relation to the common law case, it was a mistake to view the appellant as being in the same position as an ordinary member of the public. She was required to visit clients in their homes in hazardous weather conditions, whether or not the roads and footpaths in question had been treated. Her employers were able (and obliged by statute) to consider the risks to her safety and the means by which those risks could be reduced [108]. A reasonably prudent employer would conduct a risk assessment so as to take suitable precautions to avoid injury to its employees. The duty to carry out a risk assessment was logically anterior to determining what precautions a reasonable employer would take to fulfil its common law duty of care [110]. The respondents were aware of a history of accidents each year and were aware that the consequences were potentially serious. Those circumstances were sufficient to require an employer taking reasonable care for the safety of its employees to inquire into possible means of reducing the risk. Upon such inquiry, or the carrying out of a proper risk assessment, on the evidence accepted by the Lord Ordinary the respondents would have learnt that attachments were available at a modest cost to reduce the risk, and had been used by other employers in a similar position. The Lord Ordinary was entitled to conclude that the respondents were negligent in failing to provide the appellant with such attachments [112 113]. The Lord Ordinary made no express findings as to causation, other than that the appellant would have used attachments if they had been provided. The concept of suitability, under regulation 4(1) of the PPE Regulations, contained a causal component: the equipment must adequately control the risk so far as was practicable. A risk would not be adequately controlled unless injury was highly unlikely [118]. In the circumstances, it was reasonable to infer that the failure to provide the anti slip attachments caused or materially contributed to the accident [119].
Parliament has conferred statutory rights on employees, including through legislation giving effect to EU law. Most employment rights can only be enforced in employment tribunals (ETs) and the employment appeal tribunal (EAT). Until the coming into force of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013, SI 2013/1893 (the Fees Order) on 29 July 2013, a claimant could bring and pursue proceedings in an ET and appeal to the EAT without paying any fees. The stated aims of the Fees Order were to transfer part of the cost burden of the tribunals from taxpayers to users of their services, to deter unmeritorious claims, and to encourage earlier settlement. The Fees Order requires an issue fee to be paid when a claim form is presented to an ET, and a hearing fee prior to the hearing of the claim. The amounts depend on whether the claim is brought by a single claimant or a group, and whether the claim is classified as type A or type B. Type A claims are specified, and generally require little or no pre hearing work and very short hearings. All other claims are type B, including unfair dismissal, equal pay and discrimination claims. For a single claimant, the fees total 390 for a type A claim and 1200 for a type B claim. In the EAT fees are also payable in two stages, but without distinction between different types of appeal, or between single and group appellants. The Fees Order also makes provision for the full or partial remission of fees if a claimants disposable capital, together with their partners, is below a specified amount (in most cases, 3,000). The amount of remission depends on the claimants gross monthly income, together with their partners, and the number of children they have. A fee may also be remitted if the Lord Chancellor is satisfied that there are exceptional circumstances. A claim or appeal must be rejected unless it is accompanied by a fee or a remission application. This appeal arises out of proceedings for judicial review in which the trade union UNISON (the appellant) argued that the making of the Fees Order was not a lawful exercise of the Lord Chancellors statutory powers, because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups. The Supreme Court unanimously allows the appeal. Lord Reed gives the lead judgment, with which the rest of the Court agrees, dealing with all issues except for discrimination. Lady Hale gives judgment on the discrimination issue, with which the rest of the Court agrees. The Fees Order is unlawful under both domestic and EU law because it has the effect of preventing access to justice. Since it had that effect as soon as it was made, it was therefore unlawful and must be quashed. The constitutional right of access to the courts is inherent in the rule of law: it is needed to ensure that the laws created by Parliament and the courts are applied and enforced. Tribunals are more than merely the providers of a service which is only of value to those who bring claims before them [65 85]. As a matter of domestic law, the Fees Order is unlawful if there is a real risk that persons will effectively be prevented from having access to justice, or if the degree of intrusion into access to justice is greater than is justified by the purposes of the Fees Order [86 89]. While court fees for small claims are related to the value of the claim, the ET and EAT fees bear no direct relation to the amount sought and can therefore be expected to act as a deterrent to claims for modest amounts or non monetary remedies (which together form the majority of ET claims). The recoverability of costs upon success cannot be decisive of the question of access to justice as that right is not restricted to the ability to bring successful claims [20 37]. Indeed the evidence before the Court shows that the effect of the Fees Order was a dramatic and persistent fall in the number of claims brought in ETs, with a greater fall in the number of lower value claims and claims in which a financial remedy was not sought. Fees were the most frequently cited reason for not submitting a claim. Worked examples of the impact of fees on hypothetical claimants indicated that in order to meet the fees they would have to restrict expenditure that was ordinary and reasonable for maintaining living standards [38 55]. The question of whether fees effectively prevent access to justice must be decided according to the likely impact of the fees on behaviour in the real world. Fees must be affordable not in a theoretical sense, but in the sense that they can reasonably be afforded. Where households on low to middle incomes can only afford fees by forgoing an acceptable standard of living, the fees cannot be regarded as affordable. Even where fees are affordable, they prevent access to justice where they render it futile or irrational to bring a claim, for example where in claims for modest or no financial awards no sensible claimant will bring a claim unless he can be virtually certain he will succeed, that the award will include recovery of fees, and that the award will be satisfied in full [90 98]. Further, although the stated purposes of the Fees Order are legitimate aims, it has not been shown that the Fees Order was the least intrusive means of achieving those aims [99 103]. The Fees Order is also unlawful because it contravenes the EU law guarantee of an effective remedy before a tribunal: it imposes disproportionate limitations on the enforcement of EU employment rights [105 117]. The Fees Order is indirectly discriminatory under the Equality Act 2010 because the higher fees for type B claims put women at a particular disadvantage, because a higher proportion of women bring type B than bring type A claims. The charging of higher fees was not a proportionate means of achieving the stated aims of the Fees Order. It had not been shown to be more effective at transferring the cost of the service from taxpayers to users, and in some type B cases (such as pregnancy dismissal) the higher fee did not correspond to a greater workload placed on the tribunal. Further, meritorious as well as unmeritorious claims might be deterred by the higher price, and there was no correlation between the higher fee and the merits of the case or incentives to settle [121 134].
In October 2014, PST Energy 7 Shipping LLC and Product Shipping and Trading S.A., the owners and managers of the vessel Res Cogitans, (collectively, the Owners) ordered a quantity of marine fuel, (the bunkers) from OW Bunker Malta Ltd (OWB). The contract between OWB and the Owners provided for payment 60 days after delivery and included a clause under which property was not to pass to the Owners until payment for the bunkers had been made. It also entitled the Owners to use the bunkers for the propulsion of Res Cogitans from the moment of delivery. OWB obtained the bunkers from its parent company, OW Bunker & Trading A/S (OWBAS). OWBAS obtained the bunkers from Rosneft Marines (UK) Ltd (RMUK), which obtained them from RN Bunker Ltd (RNB). In November 2014 OWBAS announced that it was applying to the Danish courts for restructuring and subsequently became insolvent. ING Bank NV (ING) became the assignee of OWBs rights against the Owners. The Owners consumed all of the bunkers in the vessels propulsion, without making payment to OWB, which did not make payment to OWBAS, which in turn did not make payment to RMUK. RMUK paid RNB and demanded payment from the Owners, asserting that it remained the owner of the bunkers. The Owners commenced arbitration against OWB and ING, seeking a declaration that they were not bound to pay for the bunkers, or damages for breach of contract, on the grounds that OWB had been unable to pass title to them, owing to the application of section 2(1) and s.49 of the Sale of Goods Act 1979 (SoGA). The arbitrators determined that OWB did not undertake to transfer property in the bunkers to the Owners under the Contract and that the Owners therefore remained liable to pay OWB/ING. Males J agreed and the Court of Appeal dismissed a further appeal by the Owners. The Supreme Court unanimously dismisses the appeal by the Owners, PST Energy. Lord Mance gives the only judgment, with which the other Justices agree. There are three issues before the Supreme Court: (1) Was the contract a contract of sale within the meaning of section 2(1) of SoGA? (2) If not, was it subject to any implied term that OWB would perform or had performed its obligations to its supplier, in particular by paying for the bunkers timeously? (3) Should the Court of Appeal decision F G Wilson (Engineering) Ltd v John Holt & Co (Ltd) [2014] 1 WLR 2365 (known as Caterpillar) be overruled? [22, 24] Was the contract a contract of sale under section 2(1) the Sale of Goods Act 1979? section 2(1) of SoGA defines a contract of sale of goods as one by which the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. OWB argues that this was a contract of sale within that definition. But bunker suppliers know that bunkers are for use prior to payment [27]. OWBs contract with the Owners therefore cannot be regarded as a straightforward agreement to transfer the property in the bunkers to the Owners for a price under section 2(1). It was a sui generis (unique) agreement, with two aspects: first, to permit consumption prior to any payment and without any property ever passing in the bunkers consumed; and second, if and so far as bunkers remained unconsumed, to transfer the property in the bunkers remaining to the Owners in return for the Owners paying the price for all of the bunkers, whether consumed before or remaining at the time of payment [28, 34]. Even if the contract were to be analysed as a contract of sale, in that it contemplated the transfer of property in any bunkers unused at the date of payment, OWB could not owe any obligation to transfer property in bunkers consumed before payment. It would cease to be a contract of sale if and when all such bunkers were consumed before payment [36 37]. Was there an implied term that OWB would pay timeously? In consequence of his conclusion at [28] Lord Mance finds that OWBs only implied undertaking as regards the bunkers which it permitted to be used, and which were used by the Owners in propulsion prior to payment, was that OWB had the legal entitlement to give such permission [39, 59]. Should Caterpillar be overruled? The Court of Appeal held in Caterpillar that where goods are delivered under a contract of sale but title is reserved pending payment of the price, the seller cannot enforce payment of the price by an action [42]. section 49(1) of SoGA enables an action for the price where the seller has transferred property, with or without delivery, and the buyer has failed to pay the price due [44]. Lord Mance considers that section 49(2) reflects an established common law exception to the rule in section 49(1) [45]. The question of principle is whether section 49 excludes any claim to recovery of a price outside its express terms. section 49(2) relaxes only partially the strictness of section 49(1). The 1893 Act which introduced the wording now found in section 49(2) reflected the common law in an era when freedom of contract and trade were axiomatically accepted as beneficial. Therefore a court should be cautious about recognising claims to the price of goods in cases not falling within section 49 but this leaves at least some room for claims for the price in other circumstances [53]. For instance, the price may be recovered in respect of goods undelivered which remain the sellers property but are at the buyers risk and are destroyed by perils of the seas or by fire. The present situation is an even stronger example [57]. Lord Mance declined to set the precise limits for the circumstances in which the price may be recoverable outside section 49. Had the contract between OWB and the Owners been one of sale, Lord Mance would have held, over ruling the Caterpillar case on this point, that section 49 is not a complete code of situations in which the price may be recoverable under a contract of sale. In the present case the price was recoverable by virtue of its express terms in the event which has occurred, namely the complete consumption of the bunkers supplied [58, 60].
Ahava was a shop in Covent Garden, London, which mainly sold beauty products processed from Dead Sea mineral materials. The products were factory produced by an Israeli company, in an Israeli settlement located in the West Bank and therefore within the Occupied Palestinian Territory (OPT). It was said that the factory was staffed by Israeli citizens encouraged by the Government of Israel to settle there. Mr Richardson and Ms Wilkinson (the Defendants) sought to disrupt the activities of Ahava. On 2 October 2010 they entered the shop (together with other helpers) carrying a concrete tube. They connected their arms through the tube anchored by a chain, secured by a padlock to which they claimed to have no key. They were asked to leave the shop by an Ahava employee, but failed to do so. The employee called the police and, after some time, closed the shop. Tools were used to release the Defendants from the tube. On their release, they were arrested for aggravated trespass contrary to section 68 Criminal Justice and Public Order Act 1994 (the 1994 Act). That offence criminalises the conduct of a person A who (i) trespasses on land, (ii) where there is a person or persons B lawfully on the land who is engaged in or about to engage in a lawful activity, (iii) and A does an act on the land, (iv) intended by A to intimidate all or some Bs from engaging in that activity, or to obstruct or disrupt that activity. In the magistrates court, the Defendants contested the charge on point (ii). They argued that Ahavas activities were not lawful since they involved the commission of one or more of four criminal offences. Firstly, they said that Ahava was guilty of aiding and abetting the transfer by Israeli authorities of Israeli citizens to the OPT, a territory under belligerent occupation. This was argued to be contrary to Article 49 of the Fourth Geneva Convention 1949, which constituted a war crime. Ahavas actions in aiding and abetting the transfer, if true, would constitute an offence under sections 51 52 of the International Criminal Court Act 2001 (the war crimes offence). Secondly, they said that since Ahava was aiding and abetting a war crime, Ahava must know or suspect that the products sold in the shop were the products of that offence. Ahava was therefore, they argued, guilty of the offence of using or possessing criminal property (the criminal property offence). Thirdly, they argued that the products had been imported into the UK purportedly under the EC Israeli Association Agreement, which conferred tax or excise advantages. However, since the Court of Justice of the European Union has ruled that products originating in the OPT do not fall under this Agreement, they asserted that Ahava was guilty of the offence of cheating the revenue (the revenue offence). Fourthly, they emphasised that the products sold were labelled Made by Dead Sea Laboratories Ltd, Dead Sea, Israel. The OPT is not recognised as part of Israel. Therefore, they argued, Ahava was guilty of labelling offences under the Consumer Protection from Unfair Trading Regulations 2008 and the Cosmetic Products (Safety) Regulations 2008 (the labelling offences). The district judge in the magistrates court convicted the Defendants. They appealed, on the grounds above, to the Divisional Court. The Divisional Court upheld the conviction, but certified as a matter of general public importance the question whether the words lawful activity in section 68 of the 1994 Act should be limited to acts or events integral to the activities at the premises in question. The Supreme Court unanimously dismisses the appeal. An activity is unlawful for the purposes of section 68 only if it involves a criminal offence integral to the core activity carried on, not when any criminality is only incidental, collateral to, or remote from the activity. Applying that to the facts of this case, none of the offences alleged by the Defendants are integral to Ahavas activities. The judgment of the Court is given by Lord Hughes. The effect of section 68 of the 1994 Act is to add the sanction of the criminal law to particular acts which already constitute the civil wrong of trespass. It is not specifically aimed at individuals wishing to protest, and is to be construed in accordance with the normal rules of statutes creating criminal offences [2 4]. In order to argue that an activity is not lawful, the Defendant has to show a specific criminal offence against the law of England and Wales, which is properly raised on the evidence before the court. Once that evidential burden has been satisfied, the burden of proof lies on the Crown to disprove that offence to the criminal standard [9]. The Defendants had accepted that a merely collateral offence would not suffice to prove the defence. They argued that the activity could be defined as the particular feature of Bs acts against which A was protesting or objecting: if that particular feature was unlawful, this would suffice for section 68. This, however, turns the section upside down. To apply the section, it is necessary first to consider what Bs lawful activity is, and then to ask whether that is the activity which A intends to disrupt. The Defendants argument involves considering As motive, rather than As intent: A intends to disrupt the whole activity [12]. The true purpose of section 68 is to add the sanction of the criminal law to a trespass where A disrupts an activity that B is entitled to pursue. The no lawful activity defence must therefore apply when the criminal offence is integral to the core activity carried on, not merely incidental or collateral to that activity [13]. However, if a criminal offence integral to the core activity is raised, the court must consider that question even if it involves assessing extraneous facts, or the conduct of third parties [14 15]. Applying those principles to this case, none of the offences raised by the Defendants are made out. The war crimes offence: The only evidence raised by the Defendants was that a different company (the manufacturing company) had employed Israeli citizens at a West Bank factory and that the local community, which held a minority shareholding in that manufacturing company, had advertised the settlement to prospective settlers. It is very doubtful that the manufacturing companys actions could amount to aiding and abetting the transfer of Israeli citizens to the OPT, but even if it did, this could not amount to an offence by Ahavas retailing arm. Moreover, any such assistance is not an integral part of the activity carried out by Ahava, which was retail selling [17]. The criminal property offence: If, for the reasons above, there is no aiding and abetting of any unlawful movement of population, the products cannot be the products of a criminal offence. In any event, the criminal property offence cannot be said to be integral to the activity of selling [18]. The revenue offence: This is a purely collateral offence. Even if proven, the importer is only liable to repay to the Revenue duty which should have been paid [19]. The labelling offences: These are the principal offences relied on. The first Regulation criminalises misleading commercial practices, including labelling. However, it is necessary to show that, as a result of the misleading labelling, the average consumer would buy something that he/she otherwise would not have done. In this case the district judge had found that a consumer willing to buy Israeli products would be very unlikely not to buy Israeli products because they were produced in the OPT. Therefore, the offence could not have been committed [20 22]. The second Regulation criminalises the supply of cosmetic products which do not state (among other things) the country of origin. The aim of this is clearly to protect consumers, and stating that the products derive from the Dead Sea is sufficient: the Regulation is not aimed to reflect disputed questions of territoriality. Even if an offence had been shown, it would not have been integral to the sale activity [23].
The Serious Organised Crime Agency (SOCA) obtained an order under Part 5 of the Proceeds of Crime Act 2002 (POCA) for the recovery of property to the value of 2m from the appellants. The order was made on the basis that the court was satisfied pursuant to section 241(3) of POCA on the balance of probabilities (the civil standard of proof) that the property was derived from criminal activity in the form of drug trafficking, money laundering and tax evasion, offences for which the appellants had not been convicted. Mr Gale had been acquitted of drug trafficking in Portugal and criminal proceedings in Spain against him were discontinued. The appellants argued that the application of the civil standard of proof, rather than the criminal standard of beyond reasonable doubt, breached their right to a fair trial under article 6 of the European Convention on Human Rights. They asked the court either to interpret s 241 to require the application of the criminal standard of proof, or to make a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998. The judge, Griffith Williams J, refused to do so and the appellants appeal to the Court of Appeal on this issue was dismissed. The appellants also objected to the making of an order under section 246 of POCA that they should bear the costs of the report made by the Interim Receiver appointed by the court in connection with the recovery proceedings against them. The High Court had refused to make such an order, but this decision was reversed by the Court of Appeal. The Supreme Court unanimously dismisses the appeal on the article 6 and the costs issues. Lord Phillips gives the main judgment on the first issue and Lord Clarke on the second. Lord Brown and Lord Dyson add concurring judgments on the first issue. The article 6 issue The appellants case was that an essential stepping stone towards proving that the relevant property was the product of crime was proof that the appellants were guilty of criminal conduct. In these circumstances it was argued that they were entitled to the presumption of innocence afforded by article 6(2), and that rebutting this required proof of guilt to the criminal standard. Further, it was said that no adverse finding could be made which implicated the first appellant in the conduct of which he had been acquitted in the Portuguese criminal proceedings [14]. Having reviewed the case law of the European Court of Human Rights at Strasbourg on the application of article 6(2) after a person has been acquitted in criminal proceedings, Lord Phillips observed that some of the decisions were mutually inconsistent. However, a common factor in cases involving subsequent proceedings was that the court required a procedural connection between the two sets of proceedings before article 6(2) applied to civil claims [21]. In this case, the link between the Portuguese proceedings and the English civil proceedings was not there. The English court was not precluded from considering the evidence which formed the basis of the charges in Portugal [35]. In the absence of such a link, there was no reason in principle why confiscation should not be based on evidence which satisfied the civil standard of proof, notwithstanding that such evidence had proved insufficiently compelling to found a conviction on the application of the criminal standard [44]. The starting point was possession of property by the appellants for whose provenance they were unable to provide a legitimate explanation. There was an abundance of evidence which implicated them in criminal activity that provided the explanation for the property that they owned [55]. Lord Brown remarked that an authoritative Grand Chamber decision from Strasbourg clarifying and rationalising this whole confusing area of the courts case law was required [117]. Lord Clarke agreed [60]. Lord Dyson was less critical of the Strasbourg case law than Lord Phillips [131] but agreed that in this case there was no sufficient link between the two sets of proceedings. The English civil proceedings were not a direct sequel or consequence of any criminal proceedings and none of the judges findings specifically called into question the correctness of the first appellants acquittal in Portugal [142]. The costs order Lord Clarke stated that the costs issue raised a single question of principle: whether an order for costs in favour of SOCA made against a person for whom a recovery order has been made can include the investigation costs incurred by the interim receiver appointed under POCA. In this case, the receivers investigation took over three years and culminated in a final report of over 400 pages, in part because of a failure of the first appellant to cooperate with the receiver. The costs paid by SOCA totalled some 1m [72]. The jurisdiction to award costs was governed by section 51 of the Senior Courts Act 1981 which makes the costs of or incidental to proceedings recoverable at the discretion of the court, subject to any express rules [76]. The investigative costs in this case were plainly costs of or incidental to the proceedings. Investigative work was an essential part of civil recovery proceedings [79]. Nothing in POCA or in the Civil Procedural Rules precluded the court from making the order [81]. The position of a receiver appointed under Part 5 of POCA was significantly different from an ordinary receiver. As well as the duty to investigate, he had no power to sell the assets nor did he have a lien over them for his costs. There was a much closer relationship between the parties and an interim receiver. The Supreme Court agreed with the Court of Appeal that it would decline to follow the decision of the Court of Appeal in Northern Ireland in SOCA v Wilson [2009] NI 28, and dismissed the appeal [109].
The case concerns a challenge by way of judicial review by the respondent, Mr Wright, to the grant of planning permission by the second appellant (the Council) to the first appellant (Resilient) for the change of use of land at a farm in Gloucestershire from agriculture to the erection of a wind turbine. In its application for planning permission, Resilient proposed that the turbine would be built and run by a community benefit society and that an annual donation would be made to a local community fund. The Council took this donation into account in granting planning permission and made the permission conditional on the development being undertaken by the community benefit society and the provision of the donation. In doing so, the Council had regard to government policy to encourage community led wind turbine developments. Mr Wright challenged the grant of permission on the grounds that the donation was not a material planning consideration and the Council had acted unlawfully by taking it into account. He succeeded at first instance and in the Court of Appeal. Resilient and the Council now appeal to this court. The Secretary of State for Housing, Communities and Local Government was given permission to intervene and made submissions in support of the appeal. The issue on the appeal is whether the promise to provide a community fund donation qualifies as a material consideration for the purposes of section 70(2) of the Town and Country Planning Act 1990 as amended (the 1990 Act) and section 38(6) of the Planning and Compulsory Purchase Act 2004 (the 2004 Act). The Supreme Court unanimously dismisses the appeal. Lord Sales gives the judgment, with which all members of the Court agree. Planning permission is required for development of land, which includes the making of any material change in use (sections 57(1) and 55(1) of the 1990 Act). The planning authority must have regard to the development plan and any other considerations material to the proposed change of use (section 70(2) of the 1990 Act and section 38(6) of the 2004 Act) [31]. A three fold test for material considerations is found in Newbury District Council v Secretary of State for the Environment [1981] AC 578 (Newbury). This requires that the conditions imposed: (1) be for a planning purpose and not for any ulterior purpose; (2) fairly and reasonably relate to the development; and (3) must not be so unreasonable that no reasonable planning authority could have imposed them [32 33]. It is logical to equate the ambit of material considerations with the scope of the power to impose planning conditions, because if the planning authority has the power to impose a condition it follows that it could treat the imposition of that condition as a material factor in favour of granting permission. The relevance of the Newbury criteria to determine the ambit of material considerations in the 1990 and 2004 Acts is well established and is not in contention on this appeal [34]. It is a fundamental principle of the planning system that planning permission cannot be bought or sold. A principled approach to identifying material considerations in line with the Newbury criteria is important to protect landowners and the public interest, since it prevents a planning authority from extracting money or other benefits unrelated to the proposed use of the land as a condition for granting permission and from deciding whether to grant permission by reference to such matters rather than by reference to the planning merits of the proposed development in issue [39]. This protection has been established by Parliament through statute, as interpreted by the courts, and cannot be overridden by general policies laid down by central government [42]. In the present case, the community benefits promised by Resilient did not satisfy the Newbury criteria and therefore did not qualify as a material consideration under either the 1990 or the 2004 Act. The benefits were not proposed to pursue a proper planning purpose, but rather for the ulterior purpose of providing general benefits to the community. They did not fairly and reasonably relate to the development for which permission was sought; the community benefits did not affect the use of the land but were instead proffered as a general inducement to the Council to grant planning permission, in breach of the principle that planning permission cannot be bought or sold [44]. The statutory concept of a material consideration as interpreted by the courts does not vary according to government guidance and policy statements [45 49]. On the other hand, a change in national policy can affect the issue of whether a decision satisfies the third limb of the Newbury test, by making it clear that a reasonable local planning authority can properly consider that a particular condition is justified in terms of planning policy [53].
The main issue in this appeal is whether, and if so which and in what circumstances, breaches of public law are capable of rendering unlawful the detention of foreign national prisoners (FNPs) pending their deportation. Section 3(5)(a) of the Immigration Act 1971 (the 1971 Act) confers on the Secretary of State for the Home Department a power to deport foreign nationals. Schedule 3 of the 1971 Act empowers the Secretary of State, in certain specified circumstances, to detain foreign nationals pending deportation. From at least 1991, the Secretary of State had maintained a published policy on the application of the power to detain. This policy presumed in favour of release whilst justifying detention in some circumstances. However, following adverse publicity in April 2006, the Secretary of State adopted a new policy which was not published. Between April 2006 and September 2008, the Secretary of State applied this unpublished policy which imposed a near blanket ban on release of FNPs. On 9 September 2008, the Secretary of State amended the published policy to replace all references to a presumption of release with a presumption of detention. However, on 22 January 2009, following the decision of Davis J in the current proceedings, the published policy was amended again to omit references to a presumption of detention. Walumba Lumba is a citizen of the Democratic Republic of Congo. He entered the UK unlawfully in April 1994. He was later convicted of a number of offences and was sentenced to 4 years imprisonment for wounding with intent on 12 January 2004. On 3 April 2006, the Secretary of State informed Mr Lumba of the intention to deport him. He was due to be released from prison in June 2006, but was informed that he was to be detained pending deportation. He left the United Kingdom voluntarily on 13 February 2011. Kadian Mighty is a citizen of Jamaica. He was granted indefinite leave to remain in the UK in February 2003. On 27 June 2003 he was sentenced to 42 months imprisonment for possession of a Class A drug with intent to supply. On 10 May 2006, the Secretary of State informed Mr Mighty of the intention to deport him. On 19 May 2006, he was detained pending deportation. However, he was released on bail on 28 July 2008. Mr Lumba issued proceedings on 18 October 2007 claiming a declaration that his detention was unlawful and damages. His case was joined with that of Mr Mighty who had issued proceedings on 29 May 2008. In addition, Mr Lumba, who remained in detention until his departure from the United Kingdom, challenged the reasonableness of the duration of his detention and sought a mandatory order that he be released. At first instance ([2008] EWHC 3166 (Admin)), Davis J granted declarations to the effect that it was unlawful for the Secretary of State to operate an unpublished policy which presumed in favour of detention. He dismissed the other claims, including the claims for damages for unlawful detention. The appellants appealed and the Secretary of State cross appealed on the issue of the presumption of detention. The Court of Appeal (Lord Neuberger MR, Carnwath and Stanley Burnton LJJ) allowed the cross appeal but otherwise dismissed the appeals ([2010] 1 WLR 2168). The Supreme Court, by a majority, allows the appeals. Lord Dyson gives the lead judgment. The majority hold that the Secretary of State is liable to both appellants in the tort of false imprisonment as the statutory power to detain them was exercised in breach of public law duties (Lords Phillips, Brown and Rodger dissenting). The appellants are, however, only entitled to nominal damages assessed at 1 (Lords Hope, Walker and Lady Hale dissenting). They are not entitled to exemplary damages. The court remits to the High Court the question whether Mr Lumba was detained for longer than a reasonable period in breach of the principles in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 (the Hardial Singh principles). The court considers five issues: (1) whether the unpublished policy maintained by the Secretary of State between April 2006 and September 2008 is unlawful on grounds of public law error; (2) if so, whether detention on the basis of such a policy is unlawful in circumstances where the appellants would have been lawfully detained in any event; (3) if so, whether the appellants are entitled to recover more than nominal damages; (4) whether the appellants are entitled to an award of exemplary damages; and (5) in the case of Walumba Lumba, whether there has been a breach of the Hardial Singh principles. The requirements of public law The court holds unanimously that it is lawful for the Secretary of State to operate a policy which sets out the practice that she will normally follow in deciding whether or not to detain FNPs pending their deportation, provided that the requirements of public law, Hardial Singh and Article 5(1)(f) of the ECHR are respected: [40] [55]. However, as regards the application of the statutory power to detain, it is unlawful in public law for the Secretary of State to maintain an unpublished policy which is inconsistent with her published policy and which applies a near blanket ban on the release of FNPs: [26] [38]. Such a policy was applied to the appellants between April 2006 and September 2008: [21]. Liability in false imprisonment Breach of a public law duty on the part of the person authorising detention is capable of rendering that detention unlawful and did render it unlawful in this case: [62] [88], [198] [207], [221]. Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. Accordingly, by a majority, the court holds that the fact that the appellants would have lawfully been detained in any event does not affect the Secretary of States liability in false imprisonment: [62], [64] [88], [197], [208] [211], [221], [239] [247]. Lords Phillips and Brown (with whom Lord Rodger agrees) dissent and hold that because the appellants would have been lawfully detained the Secretary of State is not liable to them in false imprisonment: [319] [334], [343] [360]. Damages By a majority, the court holds that the fact that the appellants would have been lawfully detained is relevant to damages rather than to liability. Since the appellants have suffered no loss they should recover no more than nominal damages of 1: [90] [96]. They are not additionally entitled to damages to vindicate the importance of the right and the seriousness of the infringement: [97] [101], [222] [237], [253] [256] (Lords Hope, Walker and Lady Hale dissenting: [176] [180], [195], [212] [217]). Further, the court holds unanimously that the appellants are not entitled to exemplary damages: [150] [169]. Reasonableness of the length of detention under the Hardial Singh principles As regards the assessment of whether a reasonable period of detention has elapsed, the court unanimously holds that the risk of reoffending and the legal challenges pursued by the detainee are relevant. The relevance of a refusal to voluntarily return is limited: [106] [128]. It is for a court of first instance to decide whether Mr Lumbas detention for almost 56 months was in breach of the Hardial Singh principles. Accordingly, his claim is remitted to the High Court: [129] [148].
The appellant (Melissa Menelaou) is the owner of a property, 2 Great Oak Court (the Property), bought by her parents in 2008 (in her name as a gift to her) as a family home for her, her siblings and her parents. The respondent Bank had two charges, securing the parents borrowing, totalling about 2.2 million over the previous family home owned by the parents, which was sold. The Bank agreed to release those charges, in return for a lump sum payment of 750,000 discharging part of the debt, and a fresh charge over the Property to secure the remaining indebtedness of 1.45 million. This left 875,000 to be used out of the sale proceeds for the purchase of the Property in Melissas name. Melissa was eventually registered as the proprietor of the Property, and the Bank as purported chargee. Melissa only became aware of the existence of the charge in 2010. She then discovered that the charge had not been properly executed and was in fact void, because she had not signed it and it had been altered without consulting her. She sought rectification of the register. The Bank invoked the unpaid vendors lien (namely the charge which the law gave to the vendor over the Property to secure the payment of the 875,000 which the purchasers were contractually due to pay him). It counterclaimed that, because the 875,000 used to pay the vendor effectively originated from its release of the charges over the previous property, and was intended to be secured on the Property, the law entitled it to be subrogated to the unpaid vendors lien, and thereby to claim a charge over the Property in the sum of 875,000. That counterclaim was the only issue at trial. It was dismissed by the judge at first instance, but granted by the Court of Appeal. The Supreme Court dismisses the appeal. Lord Clarke (with whom Lord Kerr and Lord Wilson agree) delivers the judgment. Lord Neuberger writes a concurring judgment, with which Lord Kerr and Lord Wilson also agree. Lord Carnwath writes a judgment dismissing the appeal, but on different reasoning. This is a case of unjust enrichment. Melissa was enriched. The critical question is whether she was enriched at the expense of the Bank [19 22], because if so that enrichment was clearly unjust. The answer is plainly yes: she became owner of the Property (subject to the charge) thanks to the Banks agreement to release a part of the debt in return for that charge. Since the charge was void, the value of the Property to Melissa was considerably greater, at the expense of the Bank which was left without the security that was central to the overall scheme [24]. There was one overall scheme, and a sufficient causal connection between the Banks loss and Melissas benefit, adopting either a narrow approach (with exceptions) or broad approach to the causal test [25 35]. There are no other defences available to Melissa [36]. The appropriate equitable remedy is that the Bank is subrogated to the unpaid sellers lien. This has the effect of reinstating Melissas liability under the charge, reversing her unjust enrichment, and allowing the Bank to enforce its equitable interest in the Property by sale [49]. Although this is a complex remedy, it has been rationalised by the development of the doctrine of unjust enrichment, and may now be applied flexibly to the facts of any particular case [37 48; 50]. Lord Neuberger agrees. The Bank can establish an unjust enrichment claim against Melissa. The first step is that she was enriched, because she received the freehold of the Property for nothing (or more accurately, received the freehold free of the intended charge) [62 64]. The second step is that Melissa was enriched at the Banks expense, both because the Bank could have prevented the purchase of the Property proceeding until it had been granted a charge, and because there was one overall scheme [65 68]. Thirdly, Melissas enrichment was unjust, since she (as a donee) could not be placed in a better position than her parents, who were not entitled to transfer the freehold free of the intended charge, and since she directly benefited from the scheme [69 73]. Fourthly, Melissa cannot point to any facts which give her a defence, even though she did not know of the charge and the Bank might have an alternative claim [73 77]. Lord Neuberger further notes that it is hard to identify a more appropriate remedy than subrogating the Bank to the lien over the freehold [79 82, 106]. The remedy is broad and flexible, and justified here on analysis of the decision of the House of Lords in Orakpo v Manson Investments Ltd [1978] AC 95, 104 and Lord Hoffmans observations in Banque Financire de la Cit v Parc (Battersea) Ltd [1999] 1 AC 221 [83 93]. Melissas case is by contrast pure formalism [95, 99]. This remedy could probably also be justified on the basis that the Bank had a proprietary interest in the 875,000 used to purchase the Property, and that either the Bank or Melissas parents were the beneficial owners of that sum [100 104, 106]. Lord Carnwath concurs, reaching the same conclusion, but by strict application of the traditional rules of subrogation. The proprietary restitutionary remedy is justified in this case by principles of tracing and subrogation as expressed in Boscawen v Bajwa [1996] 1 WLR 328, not because of any tenuous relationship with a vendors lien, said to subsist by way of analogy [109, 117 121]. The remedy requires that the claimant establish that its money was used to discharge the security through the process of tracing; the looser test of economic reality or simple causation (applied by the Court of Appeal in this case) is insufficient [132]. Here, there was a clear tracing link between the Bank and the money used to purchase the Property. The Banks interest in the purchase money was clear and direct. [134 140].
The appellant (Iceland) is a well known supermarket operator, specialising in refrigerated goods. Its premises include a retail warehouse at Penketh Drive, Liverpool (the Property). The issue in the appeal is whether the services provided by an air handling system (AHS), used in connection with refrigerated goods at the Property, are manufacturing operations or trade processes under the Valuation for Rating (Plant and Machinery) (England) Regulations 2000 (the 2000 Regulations). If they are, then the AHS is to be ignored in calculating the rateable value of the Property. The issue arises because Iceland unsuccessfully applied to the Valuation Officer in 2010 to reduce the rateable value of the Property on that basis. Iceland then appealed to Valuation Tribunal, which decided the issue in Icelands favour. That finding was reversed by the Upper Tribunal, whose decision was upheld by the Court of Appeal. Iceland appealed to the Supreme Court on the issue. The Supreme Court unanimously allows the appeal. Lord Carnwath gives the judgment, with which Lord Kerr, Lord Reed, Lord Hughes and Lady Black agree. Under paragraph 2(1) of Schedule 6 to the Local Government Finance Act 1988, the rateable value of a non domestic hereditament is taken to be an amount equal to the rent at which it is estimated the hereditament might reasonably be expected to let from year to year on the basis of certain prescribed assumptions. Prescribed assumptions are set out in the 2000 Regulations [6]. The 2000 Regulations are derived from the recommendations of a report by an Expert Advisory Committee under the chairmanship of Mr Derek Wood QC (the Wood Report) published in 1993. The Committee reviewed the law and practice relating to the rating of plant and machinery, with a view to updating and harmonising it throughout the United Kingdom [7]. The prescribed assumptions under paragraph 2 of the 2000 Regulations include the assumption that any plant or machinery, if it belongs to any class listed in the Schedule to the 2000 Regulations, is assumed to be part of the hereditament in or on which it is situated. The classes in the Schedule are in effect exceptions to the general rule that the value of plant and machinery cannot affect the estimated value of the hereditament for rating purposes. [8]. Class 2 in the Schedule consists of: Plant and machinery specified in Table 2 below which is used or intended to be used in connection with services to the hereditament or part of it, other than any such plant or machinery which is in or on the hereditament and is used or intended to be used in connection with services mainly or exclusively as part of manufacturing operations or trade processes. (Emphasis added.) It is common ground that the AHS is covered by Table 2 and that it is used in connection with services to the hereditament. The only issue is whether the AHS is excluded from Class 2 by the wording italicised above (the Proviso) [9 10]. The history of the legislation provides useful background to the law as it stood at the time of the Wood Report. Historically, it has been difficult to draw a defensible line between, on the one hand, plant and machinery properly treated as part of the hereditament when assessing its hypothetical letting value, and plant and machinery more fairly attributable to the tenants business within it (the tools of the trade). Lord Carnwath traces the development of the law on the issue in England and in Scotland, where the law developed differently, up to the time of the review by the Wood Committee [12 19]. The Wood Report accepted the validity up to a point of a tools of the trade exemption, subject to qualification in the interests of fairness between ratepayers. The Committee accepted the underlying conceptual approach of the regulations in each part of the UK as soundly based. It recommended, amongst other things, that future regulations be based on the principle that process plant and machinery which can fairly be described as tools of the trade should be exempt within certain limits [20 22]. The Committee commented specifically on the predecessor in the English regulations to Class 2, describing it as not free from ambiguity. They concluded that, despite such difficulties, the law as we understand it in both England and Scotland should remain unaltered but that the draftsmanship should be improved to eliminate the difficulties inherent in the English Regulations. Annex L to the Report also contained various examples, including that of refrigeration plant. The Committee concluded that this was exempted and should remain so under their recommendations [23 24]. In the Supreme Court the respondent advanced a broader case than that adopted by the lower courts. This broader argument was that the Proviso concerned productive activities in industry only and not other commercial activities, such as Icelands retail activities. This contention was impossible in view of (i) the wording of the 2000 Regulations and (ii) the background of the Wood Report. As to the first, the draftsman could have easily restricted the Proviso to industrial activities, but the inclusion of trade processes, as an alternative to manufacturing operations, instead widens it. The word trade naturally extends to Icelands retail activities. Subject to the meaning of the word process, nothing in the Proviso or its context justifies a narrower approach [34]. As to the second, the respondents broad contention was inconsistent with the Wood Report, which emphasised the principle of fairness between ratepayers. No such limitation was proposed in the discussion of what became Class 2. Its proposed rules included a the tools of the trade exemption, without limiting the nature of that trade. Its proposed rule dealing with the need to draw lines between service and process functions was expressed in general terms [35]. The respondents contention was even harder to reconcile with the Scottish legislation, which referred to any trade, business or manufacturing process and which the Wood Report criticised for not going far enough [36]. Turning to the reasoning of the Court of Appeal and the Upper Tribunal, both saw the Proviso as an exception to be construed narrowly; and as referring to a process designed to bring about a transition from one state to another. That pays insufficient regard to the place of the Proviso within the scheme of the regulations as a whole: it is and always was an exception to an exception. It brings items of plant back into the scope of the general rule. The rationale is that, although they may provide a service to the building, their main or exclusive function is to provide a service to the activities of the trader within it. They are therefore more fairly considered as tools of the trade [37]. Nothing in the Wood Report suggests that changes of language in the relevant provisions over time were intended to signal any substantive change. On the contrary, the intention was to retain the law substantially without alteration, while improving its draftsmanship [38]. There is nothing in the word process itself implying a transition or change. It has various meanings. In its widest sense, it includes anything done to goods and materials. A trade process is simply a process (in that wide sense) carried on for the purposes of a trade [39]. In the context of Icelands trade, the word is apt to cover the continuous freezing or refrigeration of goods to preserve them artificially. Since the services provided by the relevant plant have been held to be used mainly or exclusively as part of that trade process, they should be left out of account for rating purposes [40].
In response to various incidents of international terrorism, including the attacks on 9/11, the UN Security Council (the UNSC) passed resolutions (UNSCRs) requiring member states to take steps to freeze the assets of: (i) Usama Bin Laden, the Taliban and their associates; and (ii) those involved in international terrorism. The UNSC established a list of persons whose assets member states were obliged to freeze (the Consolidated List). Those included in the Consolidated List are not informed of the basis for their inclusion or afforded the right to challenge the decision before an independent and impartial judge. The Appeals concern the legality of the Terrorism (United Nations Measures) Order 2006 (the TO) and the Al Qaida and Taliban (United Nations Measures) Order 2006 (the AQO). The TO and AQO were made by Her Majestys Treasury (the Treasury) pursuant to s.1 of the United Nations Act 1946 (the 1946 Act), which authorises the making of such Orders in Council as are necessary or expedient to give effect to UNSCRs. The TO goes beyond the requirements imposed by the relevant UNSCRs by providing that a persons assets can be frozen on the basis of a reasonable suspicion. The AQO transposes the UNSCRs concerning the Taliban into domestic law. Crucially, if a person is named in the Consolidated List, the AQO provides that his assets in the UK will automatically be frozen. A person whose name is on the list has no right to challenge his listing before a court. Freezing measures under the TO and AQO, which are not subject to any time limit, place very severe limitations on the ability of persons who have been designated to deal with their property. They have an extremely grave effect upon their freedom of movement, their liberty and private and family lives, and those of their families and their associates. A, K and M were the subject of asset freezes under the TO. The effect on them and their families has been severe. G and HAY are named in the Consolidated List and so were both automatically designated as subject to asset freezing by the AQO. G was included in the Consolidated List at the request of the UK, which continues to support his listing. HAY was added at the behest of an undisclosed UN member state. The UK opposes his inclusion in the Consolidated List and is engaged, to date unsuccessfully, in efforts to de list him. The issue before the Court was whether s.1(1) of the 1946 Act gave the Treasury the power to make the TO and AQO, having regard to: (i) the gravity of the interference with fundamental rights which the asset freezes bring about; (ii) the fact that the TO allowed asset freezing on grounds of reasonable suspicion; and (iii) the fact that the AQO entirely deprived those named in the Consolidated List of any right of access to a court. Following the hearing in the case, the Treasury issued new designations in respect of A, K, M and G under the authority of the Terrorism Order (United Nations Measures) 2009 (the TO 2009). The terms of the TO 2009 are substantially similar to those of the TO. The Supreme Court has unanimously held that the TO should be quashed as ultra vires s.1(1) of the 1946 Act. It also held by a majority of six to one (Lord Brown dissenting) that Article 3(1)(b) of the AQO must also be quashed as ultra vires. It was noted that if the designations in respect of A, K, M and G imposed subsequent to the hearing pursuant to the TO 2009 had been before the Supreme Court these too would have been quashed. General Remarks Lord Hope (with the agreement of Lord Walker and Lady Hale) giving the leading judgment, noted the far reaching and serious effect of the asset freezing measures on the individuals concerned and their families [paras [4], [38], [39] and [60]]. s.1(1) of the 1946 Act allows Orders in Council to be made without even the most basic Parliamentary scrutiny [paras [48] [50]]. In the absence of Parliamentary control the Court must carefully examine such drastic measures [paras [5], [6] and [53]]. Australia and New Zealand gave effect to their UNSCR obligations by primary legislation that was subjected to the scrutiny and approval of their respective legislatures. Also, the Anti terrorism, Crime and Security Act 2001 enacted an asset freezing regime that is significantly less onerous and attended by greater safeguards than the system established by the TO and AQO [paras [51] [54]]. The legislative history of the 1946 Act demonstrates that Parliament did not intend that the 1946 Act should be used to introduce coercive measures which interfere with UK citizens fundamental rights [paras [16] and [44]]. The principle of legality requires that general or ambiguous statutory words should not be interpreted in a manner that infringes fundamental rights [paras [45] and [46]], and s.1(1) of the 1946 Act must be interpreted in this light. Orders made under s.1(1) would therefore only be legitimate when the interference with fundamental rights to which they give rise is no greater than that which the underlying UNSCR requires [para [47]]. The TO The relevant UNSCRs did not address the standard of proof for imposing asset freezes. The reasonable suspicion standard in the TO must be assessed in light of the entire system that the TO establishes, particularly the seriousness of the interferences with fundamental rights that it effects [paras [58] [60]]. By introducing a test of reasonable suspicion the Treasury exceeded the power conferred by s.1(1) of the 1946 Act [para [61]]. The AQO Lord Hope noted that the effect of the AQO, in this case, did not rely upon a reasonable suspicion criterion and that in contrast to the TO the AQO does not go beyond the relevant UNSCRs [para [64]]. But there are no means whereby G or HAY can challenge the decision to list them as terrorists, with the consequence that their assets are frozen automatically, before an independent and impartial judge [paras [77] [80]]. Article 3(1)(b) of the AQO must therefore be quashed [paras [81] and [82]]. The Status of the Designations Against A, K, M and G pursuant to the TO 2009 The principal criticisms directed against the TO apply equally to the TO 2009 [paras [28]]. Had the TO 2009 been before the Court it would have been quashed [para [83]]. Other Comments Nobody should form the impression that in quashing the TO and the operative provision of the AQO the Court displaces the will of Parliament. On the contrary, the Courts judgment vindicates the primacy of Parliament, as opposed to the Executive, in determining in what circumstances fundamental rights may legitimately be restricted [para [157] per Lord Phillips]. The features of the AQO that are characterised as objectionable are the ineluctable consequence of giving effect to the relevant UNSCRs the same apparent deficiency would apply to primary legislation. Accordingly, the AQO should be upheld [paras [203] [204] per Lord Brown (dissenting)].
Mr and Mrs Agbaje were married for 38 years. Both Nigerian by birth, they had met in England in the 1960s and acquired UK citizenship in 1972. All five of their children were born (and all but one educated) in England, and in 1975 Mr Agbaje bought a property in England called Lytton Road in which their children stayed with a nanny. But for the majority of their married life Mr and Mrs Agbaje lived in Nigeria. They separated in 1999, at which point Mrs Agbaje came to live in Lytton Road. She has lived here ever since. In 2003 Mr Agbaje issued divorce proceedings in the Nigerian courts in which Mrs Agbaje sought ancillary relief. The Nigerian court awarded her a life interest in a property in Lagos (with a capital value of about 86,000) and a lump sum equivalent to about 21,000. Part III of the Matrimonial and Family Proceedings Act 1984 was enacted to give the English court the power to grant financial relief after a marriage has been dissolved (or annulled) in a foreign country. Mrs Agbaje sought such relief. The High Court granted her leave (as required under Part III) and ultimately ordered that she should receive a lump sum equal to 65% of the sale proceeds of Lytton Road (equivalent to about 275,000) on condition that she relinquish her life interest in the Lagos property. The award represented 39% of the total assets. The Court of Appeal set aside the whole of the English award principally on the ground that the High Court had given insufficient weight to the connections of the case with Nigeria. Put broadly, the overarching issue for the Supreme Court was: what is the proper approach for courts to take when considering applications made under Part III? The Supreme Court unanimously allowed the wifes appeal and restored the order of the High Court. The judgment of the Court was delivered by Lord Collins. The Court held that Part III is to be applied in light of the purpose of the Act, which was the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where the parties had substantial connections with England ([71]). In applying Part III, the English courts should not be deciding whether it would be appropriate for an order to be made by a court in England or Wales as opposed to a foreign court. The whole point of Part III is to allow for relief in circumstances where there have already been proceedings in a foreign country ([50]). Relevant to the question of whether an order should be made and, if so, what order, will be a number of factors such as the financial benefit which the applicant has already received, or whether the applicant has failed to take advantage of a right under the foreign law to claim financial relief. The hardship or the injustice which would result if no award were made will be relevant factors, although neither are pre conditions to an award under Part III ([41] [44] and [60] [61]). Although there was no principle that an English court could only make an award that was the minimum necessary to remedy the injustice which would otherwise occur, it was equally not the intention of the legislation to allow a simple top up of the foreign award so as to equate with an English award in every case ([62] [65]; [72]). If the connection with England is not strong and a spouse has received adequate provision from the foreign court, it will not be appropriate for Part III to be used to top up the award. If the English connections are strong, however, it may be appropriate to do so ([70]). The amount of financial provision awarded under Part III will depend on all the circumstances of the case. But three general principles should be applied. First, primary consideration should be given to the welfare of any child of the marriage. Second, it will never be appropriate to make an order which gives the claimant more than she or he would have been awarded had all proceedings taken place within this jurisdiction. Third, where possible the order should have the result that provision is made for the reasonable needs of each spouse ([73]).
The Appellant, Mrs Owens, and the Respondent, Mr Owens, were married in 1978 and have two adult children. Mrs Owens had been contemplating a divorce since 2012 (when she consulted solicitors who prepared a draft divorce petition for her) but it was not until February 2015 that she left the matrimonial home. The parties have not lived together since her departure. In May 2015 Mrs Owens issued the divorce petition which is the subject of the current proceedings. It was based on s.1(2)(b) of the Matrimonial Causes Act 1973, and alleged that the marriage had broken down irretrievably and that Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him. It was drafted in anodyne terms but when it was served on Mr Owens he nevertheless indicated an intention to defend the suit, arguing that the marriage had largely been successful. In October 2015 the matter came before a recorder for a case management hearing. In light of Mr Owens defence, the recorder granted Mrs Owens permission to amend her petition so as to expand her allegations of behaviour. The recorder also directed that the substantive hearing of the dispute would take place over the course of a day (Mrs Owens had originally suggested a half day would suffice) and that there would be no witnesses other than the parties themselves. Mrs Owens duly amended her petition so as to include 27 individual examples of Mr Owens being moody, argumentative, and disparaging her in front of others, but at the one day hearing her counsel ultimately focussed on only a very few of these. The judge found that the marriage had broken down, but that Mrs Owens 27 examples were flimsy and exaggerated, and that those relied on at the hearing were isolated incidents. Accordingly, the test under s.1(2)(b) was not met and Mrs Owens petition for divorce was dismissed. Mrs Owens appealed against this decision to the Court of Appeal, but her appeal was also dismissed. She now appeals against the Court of Appeals decision to the Supreme Court. The Supreme Court unanimously dismisses the appeal, with the result that Mrs Owens must remain married to Mr Owens for the time being. Lord Wilson gives the majority judgment, with whom Lord Hodge and Lady Black agree. Lady Hale and Lord Mance each give a concurring judgment. It is important to bear in mind the legal context to this dispute, namely that defended suits for divorce are exceedingly rare. While the family court recognises that s.1 of the Matrimonial Causes Act 1973 must be conscientiously applied, it takes no satisfaction when obliged to rule that a marriage which has broken down must nevertheless continue in being [15]. The expectations are that almost every petition under section 1(2)(b) will succeed, that the evidence before any contested hearing will be brief, and that the judgment of the court in such a hearing will almost certainly result in the pronouncement of a decree [17]. This is the background to the contested hearing in this case, and explains why Mrs Owens advisors agreed to a short hearing with no external witnesses to corroborate her evidence [14 15]. When applying section 1(2)(b) the correct inquiry is: (i) by reference to the allegations of behaviour in the petition, to determine what the respondent did or did not do; (ii) to assess the effect which the behaviour had upon this particular petitioner in light of all the circumstances in which it occurred; and (iii) to make an evaluation as to whether, as a result of the respondents behaviour and in the light of its effect on the petitioner, an expectation that the petitioner should continue to live with the respondent would be unreasonable [28]. This test has been applied for many years but the application of the test to the facts of an individual case is likely to change over time, in line with changes in wider social and moral values [30 32]. The most relevant change over the past forty years is the recognition of equality between the sexes, and of marriage as a partnership of equals [34]. At the hearing, the judge gave himself the correct self direction; he understood he was applying an objective test, but with subjective elements [39]. The majority nevertheless have concerns about other aspects of the judges analysis. In particular, they have an uneasy feeling about the summary despatch of a suit which was said to depend on an authoritarian course of conduct, when the judge had scrutinised only a few individual incidents of Mr Owens behaviour [42]. However, uneasy feelings are of no consequence in an appellate court. A first instance judge has many advantages in reaching the relevant conclusions, and Mrs Owens complaints about the judgment have already been rehearsed and dismissed by the Court of Appeal. In such circumstances it is most unlikely for it to be appropriate for the Supreme Court to intervene [43]. However, the majority invite Parliament to consider replacing a law which denies Mrs Owens a divorce in the present circumstances [44 45]. Concurring judgments Lady Hale agrees with Lord Wilson as to the legal analysis, but has several misgivings about the judges judgment [47 48]. Her gravest misgiving relates to the fact that this was a case which depended upon the cumulative effect of a great many small incidents (which were said to be indicative of authoritarian and demeaning conduct over a period of time), yet the hearing before the judge was not set up or conducted in a way which would enable the full flavour of such conduct to be properly evaluated [50]. In light of her misgivings, she considers that the proper disposal is to allow the appeal, and send the case back to the first instance court to be tried again. However, this is not a disposal which Mrs Owens is actually seeking, and Lady Hale is therefore reluctantly persuaded that the appeal should be dismissed [53 54]. Lord Mance also agrees with Lord Wilson as to the wider legal analysis, however he does not share the concerns expressed by Lord Wilson and Lady Hale about the judges judgment. Lord Mance considers that the judge did not misdirect himself at any stage, and that the judge properly concluded that there was nothing in the case overall [57, 59]. Moreover, although the hearing of the defended divorce petition was listed for a relatively short period, this was how the judge was invited to decide the matter. It would be inappropriate for the Supreme Court to interfere at this stage and say it was not possible in the circumstances for the judge to have reached a fair determination [58].
Under the Scottish Independence Referendum (Franchise) Act 2013 (the Franchise Act), convicted prisoners were not eligible to vote in the Scottish independence referendum on 18 September 2014 [2]. The Appellants were Scottish prisoners who challenged that exclusion through judicial review proceedings [1]. They relied on previous case law establishing that a general and automatic prohibition that bars prisoners from participating in general elections will violate article 3 of Protocol No 1 (A3P1) of the European Convention on Human Rights (ECHR) [3]. A3P1 is entitled Right to free elections and reads: The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. The appellants judicial review applications were refused by Lord Glennie in the Outer House of the Court of Session on 19 December 2013. The First Division of the Inner House of the Court of Session refused a reclaiming motion on 2 July 2014 [4]. The Supreme Court heard and decided the appellants appeal on 24 July 2014, in order that the matter be resolved promptly in advance of the then imminent referendum [1]. This judgment sets out the reasons for that decision. The Supreme Court dismisses the appeal by a majority of five to two. It holds that the statutory disenfranchisement of convicted prisoners from voting in the Scottish referendum was lawful. Lord Hodge gives the substantive judgment of the majority (comprising himself, Lord Neuberger, Lady Hale, Lord Clarke and Lord Reed). In their view, the words of A3P1 on their ordinary meaning refer to an obligation to hold periodic elections to a democratically elected legislature. However, the requirement that such elections take place at reasonable intervals suggests that the drafters did not have referendums in mind [8]. There is unequivocal case law from the European Court of Human Rights (ECtHR) to show that the reach of A3P1 is limited to periodic general elections to the legislature [14]. Four cases are cited as examples of referendums not covered by A3P1: the UKs 1975 referendum on whether to remain in the EEC in X v United Kingdom (Application No 7096/75, 3 October 1975); referendums on accession to the EU by Latvia ( v Latvia (Application No 14755/03, 26 January 2006)) and Poland (Niedwied v Poland (2008) 47 EHRR SE6) [10]; and the UKs nationwide referendum on the alternative vote (McLean & Cole v United Kingdom (2013) 57 EHRR SE95) [11]. Although the Supreme Court is not bound to follow ECtHR authority, it will ordinarily do so when, as here, there is a clear and constant line of decisions delineating the scope of a Convention right [13]. These cases also show that the political importance of a democratic decision is the not the criterion for its inclusion within A3P1 [17]. The appellants advanced several arguments as to why the Franchise Act was unlawful, which are not accepted. Article 10 of the ECHR, protecting freedom of expression, does not confer any wider right to vote than is provided by A3P1 [19]. The prohibition on prisoners voting does not breach EU law because: (i) the outcome of the referendum would not in itself have been determinative of voters EU citizenship [23]; and (ii) EU law does not incorporate any right to vote [24]. The appellants relied on Article 25 of the International Covenant on Civil and Political Rights (ICCPR), which protects the right to participate in referendums on self determination, both as an aid to interpreting A3P1 and as a free standing international law obligation [26]. Neither point succeeded. Article 25 ICCPR is different in wording and scope from and does not inform the interpretation of A3P1 [28]. The ICCPR is not incorporated into UK domestic law and therefore Article 25 does not affect the legislative competence of the Scottish Parliament [30]. The right to vote is a basic or constitutional right [33] but the common law has not developed so as to recognise a right of universal and equal suffrage from which any derogation must be provided for by law and proportionate [34]. Neither is the right to vote inherent in the rule of law on a separate basis from a statutory franchise [38]. Lord Neuberger gives a concurring judgment focussing on the natural meaning of the words of A3P1 [44 46]. Lady Hale gives a concurring judgment expressing her view that A3P1 does not require the holding of a referendum, even on such an important issue as Scottish independence [54] and hence does not have a bearing on the right to vote in such a referendum [55]. Lord Kerr and Lord Wilson dissent from the majority. Lord Kerr, with whom Lord Wilson agrees [90], considers that the natural meaning of the words of A3P1 not only encompasses elections to the legislature but also elections that will determine the form of the legislature [65]. The ECHR is a living instrument and A3P1 may apply to situations which were not in the contemplation of its original drafters [67]. A fundamental purpose of the ECHR is to guarantee an effective political democracy; that purpose would be frustrated by preventing the safeguards applicable to ordinary legislative elections from applying to this most fundamental of votes [68]. The requirement to hold elections at regular intervals is secondary to the primary aim of A3P1 which is to ensure that citizens should have a full participative role in the selection of those who will govern them [69]. The ECtHR case law has not, so far, considered a referendum that will determine the type of legislature that a countrys people will have [71]. Lord Wilson adds that the words ensure the free expression of the opinion of the people in the choice of the legislature are dominant in A3P1 (and particularly apt to describe the Scottish independence referendum) [93] while the words at regular intervals are subservient [94] and must not be interpreted to contrary effect to the object and purpose of the provision [96]. The ECtHR authorities on referendums are not directly on point [103] and it is open to the Supreme Court to go further than the Strasbourg case law in developing a Convention right [105].
The question in this appeal is whether extraditing Mr Kapri to Albania would breach his right to a fair trial under article 6 of the European Convention on Human Rights (the Convention). Mr Kapri is an Albanian national. In 2001 he was present in the UK as an illegal immigrant. He is alleged to have been responsible for the murder of another Albanian national in London on 7 April 2001. The Metropolitan Police were unable to locate Mr Kapri, who had left the day after the murder for Glasgow and assumed a false Macedonian identity. They invited the Albanian authorities to prosecute him, since Albania has jurisdiction to prosecute in cases of homicide committed abroad where the victim and the alleged perpetrator are both Albanian. Mr Kapri was tried in his absence in Albania, convicted, and sentenced to 22 years imprisonment. On 3 January 2003 the decision against Mr Kapri became final. His whereabouts remained unknown to the Albanian authorities. In May 2010, the UK police became aware that he was living in Glasgow. On 22 June 2010, the Albanian authorities formally requested his extradition to Albania. Mr Kapri was arrested in Glasgow on 24 June 2010 and has been in custody ever since. On 20 January 2011, the Sheriff decided that there were no bars to extradition and ordered that the case be sent to the Scottish Ministers. The Scottish Ministers decided that they were not prohibited from ordering his extradition and on 15 March 2011 an extradition order was served on him. Mr Kapri appealed and lodged a devolution minute explaining the nature of his Convention rights challenge under the Scotland Act 1998. He was allowed to amend his Note of Appeal such that only two grounds of appeal were before the Appeal Court: ground (iv) (relating to the likelihood of a retrial in Albania) and a new ground (v) (relating to the alleged systemic corruption in the Albanian judicial system). He also lodged a devolution minute in relation to ground (v). However, on 2 February 2012, the Appeal Court refused to admit certain new evidence which arose under ground (v), effectively excluding that ground. Following a hearing on ground (iv), on 1 June 2012 the Appeal Court dismissed the appeal. It later granted permission to appeal to the Supreme Court. At the appeal hearing in the Supreme Court, Mr Kapri only relied on ground (v). The Supreme Court unanimously allows Mr Kapris appeal. The case will be returned to the Appeal Court for consideration of the question whether Mr Kapri would suffer a flagrant denial of justice if he were to be extradited to Albania [33, 34]. Lord Hope gives the judgment of the Court. The question is whether Mr Kapri would suffer a flagrant denial of justice if he were to be extradited to Albania. This threshold test is stringent. In a recent case, the European Court of Human Rights observed that until now it has been or would be met only in certain very exceptional circumstances. It will require a breach of the relevant right in the country to which the person is to be extradited which is so fundamental that it nullifies, or destroys the very essence of, the right. None of the cases in which the test has been described was concerned with a complaint of systemic judicial corruption as in the present case. It is not apparent that the only way it can be met, as it was in those cases, is by pointing to particular facts or circumstances affecting the case of the particular individual [29, 32]. It is hard to get at the true facts, but where allegations of corruption are widespread they must be taken seriously. When corruption affects the whole system, it may involve simple bribery of judges and court officials, or it may involve interference with the judicial system for political reasons of a much more insidious kind. Unjust convictions may result, just to keep the system going and keep prices up. Those who are familiar with the system may know what they need to do or pay to obtain a favourable decision but be quite unable to come up with what is needed. Those who are not familiar with it will be at an even greater disadvantage. Systemic corruption in a judicial system affects everyone who is subjected to it. No tribunal that operates within it can be relied upon to be independent and impartial. It is impossible to say that any individual who is returned to such a system will receive the right to a fair trial under article 6 of the Convention [28, 32]. The allegations that Mr Kapri makes in relation to the corruption of the Albanian judicial system are sufficiently serious for it to be necessary to have a closer look at the evidence on which Mr Kapri attempted to rely before the Appeal Court. The Supreme Court is not in a position to determine how systemic or widespread the problem now is. The evidence may not reflect the current position and further studies have since been conducted for the Lord Advocate. The case should be returned to the Appeal Court so that it can be provided with up to date information and reach a properly informed decision as to whether or not the threshold test is satisfied. The further delay that will result is regrettable, but it is plain that the matters must be properly investigated before a decision is taken as to whether the appellants extradition should go ahead. For the time being he must remain in custody [33 35]. A preliminary issue arose as to whether the question in this appeal raises a devolution issue in terms of the Scotland Act 1998 or a compatibility issue in terms of the Criminal Procedure (Scotland) Act 1995 as recently amended. The Court holds that it raises a devolution issue. The Lord Advocate does not act in his capacity as head of the prosecution service in Scotland when he performs functions under the Extradition Act 2003. Since the question in this appeal is not a question that arises in criminal proceedings it cannot raise a compatibility issue [23].
Mrs Sheila Davies and Mrs Maureen Mowat operate a childrens nursery known as All Stars Nursery in Aberdeen which was registered in 2004 by the Scottish Commission for the Regulation of Care (the Commission) under the Regulation of Care (Scotland) Act 2001 (the 2001 Act). The Commission became concerned at the way the nursery was being operated and in 2008 and again in 2009 it gave notice to the nursery under the 2001 Act of its decisions to implement its proposals to cancel the nurserys registration. The nursery disputed the factual basis for the Commissions concerns and appealed to the sheriff against the decisions. The appeals proceeded together before the sheriff, who, at a particular point in the proceedings, made a decision against the nursery on an evidential issue. The nursery appealed that decision to the Sheriff Principal [1 3, 5 7]. In the meantime, provisions of the Public Services Reform (Scotland) Act 2010 (the 2010 Act) had been enacted. The 2010 Act provided, among other things, that a new body, Social Care and Social Work Improvement Scotland (SCSWIS), would take over from the Commission the responsibility for the regulation of the day care of children. By virtue of a commencement order, as from 1 April 2011, SCSWIS was established, the Commission was dissolved, all the Commissions staff and property were transferred to SCSWIS, and Part 1 of the 2001 Act (which dealt with the regulation by the Commission of care services such as the nursery) was repealed. Two transitional orders (the No 1 Order and the No 2 Order) dealt with what was to happen to various outstanding actions and proceedings as a result of the handover. Article 2(1) of the No 2 Order dealt with appeals (such as the present) outstanding at 1 April 2011 and directed that Part 1 of the 2001 Act continued to apply for the purposes of the care services involved until the appeals had been finally determined [7, 8, 14 22]. At the appeal hearing on 12 April 2011 the nursery argued that the Commission could no longer be a party to the appeals, as it had been dissolved and replaced by SCSWIS. But SCSWIS had no title or interest to enter the proceedings, as the proceedings were concerned only with things that had been done under the 2001 Act before it came into existence. Therefore each of the Commissions decisions notified under the 2001 Act was a nullity. The Sheriff Principal held that, as the Commission had ceased to exist and there was no provision in either of the transitional orders that the Commissions decisions were to be treated as if they had been made by SCSWIS, those decisions could no longer have any meaning or effect [9, 11]. The Commission appealed to the Inner House of the Court of Session. In January 2012, by a majority, the First Division allowed the appeals on the basis that the effect of the transitional provisions was that the proceedings were still governed by the 2001 Act, that the Commission continued in existence for the purposes of the proceedings and that it was the proper respondent. Lord Marnoch, dissenting, thought that SCSWIS should be held to have taken over the conduct of the proceedings and be considered as the respondent as from 1 April 2011. Further notices were served on the nursery in 2012, culminating in parallel notices under the 2001 Act and the 2010 Act issued in December 2012 of decisions to implement proposals to cancel the nurserys registration. The nursery have challenged the validity of the notices and appealed against the decisions [12, 24]. The issues in the appeal are as follows. (1) Whether the Commission remains in existence for the purpose of conducting these proceedings, or whether SCSWIS took its place for that purpose after 1 April 2011. (2) validity of the 2012 notices. (3) The future conduct of these proceedings, given the lapse of time since the 2008 and 2009 decisions and the fact that the 2012 decisions are now also under appeal [23, 25]. The Supreme Court unanimously affirms the orders of the Inner House to the extent that they allowed the appeals against the Sheriff Principals orders and remits the case to the Inner House for any further orders that may be required [48]. The No 2 Order on its own leaves issue (1) unsolved. However, article 15 of the No 1 Order directs that, where an application for registration of a care service under the 2001 Act had not been determined by the Commission before 1 April 2011, the application is to be decided under the 2001 Act and that all references to the Commission are to be read as references to SCSWIS. This is echoed by the direction in article 9 of the No 1 Order that, where there is an outstanding complaint against the Commission or a care service as at 1 April 2011, the investigation of the complaint is to be carried out by SCSWIS. The reason for these directions must be that it was appreciated that, as the Commission was to be dissolved and all its staff and resources transferred to SCSWIS on 1 April 2011, the logical consequence was to transfer responsibility for the performance of the relevant functions after 1 April 2011 to SCSWIS [18, 20, 33, 34]. The gap in the No 2 Order can be filled by adopting the formula that article 15 of the No 1 Order uses and by then reading it into the direction given in the No 2 Order, so that it says that until the final determination of the appeal proceedings all references to the Commission in Part 1 of the 2001 Act are to be read as references to SCSWIS. There is here clearly a case of inadvertence. The No 2 Order needed to say how the provisions of Part 1 of the 2001 Act were to be put into effect after the Commission was dissolved. The intended solution, and the substance of the provision that would have been written in if the draftsman had spotted the point, is to be found in article 15(2) of the No 1 Order. There is a template there that is apt for use in this context too. To do otherwise would leave the dissolved Commission in existence for some of the purposes of Part 1 of the 2001 Act and require a reference to the Commission to be read as a reference to SCSWIS for others, which would be very untidy. It can safely be assumed that, if the draftsman had considered the point, he would have written the words he used in article 15(2) into article 2(1). This solution is also supported by article 19 of the No 1 Order, because its effect is that an appeal taken prior to 1 April 2011 against a decision notified by the Commission within 14 days prior to that date is thereafter to be treated as taken under the 2010 Act. It follows that the respondent in the appeal should be SCSWIS [36, 37]. On issue (2), in light of the decision on issue (1) and on a correct construction of the relevant provisions, the December 2012 notice that was issued by SCSWIS (albeit unnecessarily in the name of the Commission) under the 2001 Act is valid. The notice issued under the 2010 Act is invalid [41, 42]. On issue (3), there was considerable delay in the sheriff court and it has taken almost two years for issue (1) to be argued out in the appeal courts. The fact that the question whether decisions to cancel the registration of the nursery are the subject of two parallel appeal proceedings directed to the state of affairs in the nursery on significantly different dates is a cause for real concern. The time has come for the Supreme Court to intervene in order to minimise further delay and expense. In the very unusual circumstances of this case it is open to it to proceed on the basis that, if SCSWIS were to adhere to its 2008 and 2009 decisions, that would be an abuse of process and, in the interests of appropriate case management, to take steps now to prevent such an abuse. It would normally only be open to the Supreme Court to direct that a decision by the Commission shall not have effect after considering the merits of the appeal. But where a procedural sanction is being imposed for an abuse of process a consideration of the merits is unnecessary. The Supreme Court therefore directs that the 2008 and 2009 decisions shall not have effect. This means that the appeal proceedings against those decisions have been finally determined, and that the nursery must now be treated for all purposes as if it had been registered under the 2010 Act. The December 2012 decision notified under the 2001 Act must therefore be treated as if it had been notified under the 2010 Act. The appeal against the decision must now proceed under the 2010 Act and the aim should be to bring it to a conclusion as expeditiously as the administration of justice will allow [16, 43, 44, 46 48].
The appellant was born in Gaza in 1985. Having lived in Libya until about 2002, he then spent time in mainland Europe before arriving in the UK in April 2007. He subsequently claimed asylum and humanitarian protection. On 24 May 2007, the Home Secretary refused the appellants asylum and human rights claims. The letter sent by the Home Secretary recorded that a decision had been taken to remove the appellant from the UK and stated: If you do not appeal, or you appeal and the appeal is unsuccessful, you must leave the United Kingdom. If you do not leave voluntarily, directions will be given for your removal from the United Kingdom to Palestine National Authority. The appellant appealed the decision under section 82 (2) (h) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act). He did so on the grounds that the decision was not in accordance with the law within the meaning of section 84 (1) (e) of the 2002 Act. The appellant argued that this was so because directions for his removal to the Palestinian Territories could not lawfully be given under Schedule 2 of the Immigration Act 1971 (the 1971 Act), since paragraph 8 (1) (c) of Schedule 2 required that there was reason to believe that he would be admitted to the country chosen. The immigration judge accepted the evidence given in support of the appellant that, owing to his lack of documents and the fact that he did not have any living parents, he would not be admitted to the Palestinian Territories. However, the immigration judge rejected the appellants argument that this meant that the decision was not in accordance with the law under section 84 of the 2002 Act. The Immigration Tribunal and the Court of Appeal agreed with the immigration judge. The appellant appealed to the Supreme Court. The Supreme Court unanimously dismissed the appeal. The Court held that there is no right of appeal against an immigration decision under section 82 (2) (h) of the 2002 Act on the ground that the country or territory stated in the notice of the decision is not one that would satisfy the requirements of paragraph 8 (1) (c) of Schedule 2 to the 1971 Act. Sir John Dyson SCJ gave the courts judgment. Central to the appeal was the question of whether the proposal, in a notice of an immigration decision, of a particular country to which the appellant was to be removed was an integral part of that decision [para 21]. A clear distinction was drawn in section 84 of the 2002 Act between the decision that a person is to be removed from the United Kingdom and removal under removal directions [22]. This was a strong indication that the proposal of a destination country in an immigration decision was not an integral part of the decision itself. Section 82 of the 2002 Act referred to decisions that a person is to be removed from the United Kingdom. None of the decisions referred to mentioned a country of destination [24]. The fact that one type of decision mentioned in section 82 (2) (h) of the 2002 Act referred to a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (emphasis added) did not mean that an immigration decision must comply with Schedule 2 of the 1971 Act. The reference to the 1971 Act was merely descriptive of the type of decision appealed [25]. Not all of the decisions mentioned in section 82 required a proposed destination to be indicated to an applicant when the decision was communicated to him/her. If the proposal of a destination was an integral part of an immigration decision under section 82 (2) (h), it was difficult to see why Parliament did not provide that the proposal of a destination country should not also be an integral part of any decision from which removal directions will result [26]. It was acknowledged by both parties that there was no right of appeal against removal directions under the 2002 Act. The power to make removal directions was granted by Schedule 2 to the 1971 Act. The Appellant had acknowledged that there was no right of appeal against directions of a technical nature such as the specification of a particular ship or aircraft to be used for removal, but submitted that the specification of a particular destination was of a different character to these types of directions. It was, however, impossible to make the distinction sought by the Appellant [27]. The legislative background and explanatory notes to the 2002 Act supported the Courts conclusion [28 29]. There were also policy reasons which prevented the kind of challenge put forward by the Appellant [30 34]. The ability of the Secretary of State to give removal directions frequently depended on practical and operational issues that were inherently unsuitable for resolution at the time of the appeal against the decision. In the unlikely event that removal directions were given which could not be implemented as the person concerned could not enter the country of destination, judicial review was available. Regulation 5 (1)(b)(i) of the Immigration (Notices) Regulations 2003 (the Regulations), which stated that the notice of an immigration decision should state the country or territory to which it is proposed to remove the person, did not assist the Appellant [35 38]. The Appellant had submitted that the Regulations shed light on the meaning of the 2002 Act. However, the meaning of section 82 (2) (h) was clear and unambiguous and there was no need to use the Regulations to discern its meaning. The reason for the requirement in regulation 5 was that the proposed destination was needed in order to provide a focus for the issues which might arise under an applicants asylum and human rights claims.
The Respondent (LMUK) operates the Nectar loyalty card scheme (the scheme). As part of the scheme, it enters into contracts with certain retailers (redeemers). Under such contracts, each redeemer is required to provide customers (collectors) with goods and services wholly or partly in exchange for Nectar points. That they do so is essential to the functioning of the scheme. The collectors earn such points through purchases made from other retailers (sponsors), who pay LMUK for allowing them to do so. Those payments are subject to VAT, on the basis that LMUK provides a taxable supply of services. The Respondent pays each redeemer a service charge for allowing customers to exchange points for goods or services. LMUK sought to deduct the VAT element of the service charge as input tax on the basis that, under the relevant EU legislation, the service charge was paid by LMUK to the redeemers for a service supplied to it for the purpose of its business. The Appellant (the Commissioners) maintained that under that legislation the service charge constituted third party consideration for the redeemers supply of goods and services to collectors, and that therefore LMUK could not deduct input tax. When the issue came before the House of Lords, it referred the question of how to characterise the service charge under EU law to the Court of Justice of the European Union (CJEU). The CJEU concluded that the service charges amounted, at least in part, to third party consideration. When the case returned to the Supreme Court, it nevertheless decided ([2013] UKSC 15) by a majority of three to two that LMUK was entitled to deduct the VAT element of the service charge. It did so on the basis that, having regard to the contractual relationships between LMUK, the sponsors, the collectors and the redeemers, the service charge was paid by LMUK to the redeemers for a service supplied to LMUK for the purpose of its business. The Court respectfully declined to follow the CJEUs characterisation of the service charge as third party consideration on the basis that the terms of the reference to it by the House of Lords had precluded the CJEU from considering all relevant aspects of the relationships between the parties involved in the Nectar scheme. The Court allowed the parties an opportunity to make written submissions as to the form of the order it should make. The Commissioners invited the Court to make a further reference to the CJEU on two principal grounds. First, they argued that a national court is obliged under EU law to make a further reference if it finds the ruling of the CJEU on the first reference to be incomplete or unsatisfactory. Second, they argued that there must be an issue of EU law raised in the present appeal on which a decision is necessary and which cannot be considered to be reasonably clear, as the Supreme Court decided the case by a narrow majority. LMUK opposed a further reference and invited the Court to dismiss the appeal. The Supreme Court unanimously refuses the Commissioners request for a further reference to the CJEU and dismisses the appeal. Lord Reed gives the judgment of the Court. The Court rejects the Commissioners first principal argument [4 5]. It notes that its previous judgment had not questioned the CJEUs ruling on any question of EU law, but rather had proceeded on the basis of a more comprehensive account of the facts than the CJEU was afforded. The Courts previous judgment had, first, considered that the CJEUs judgment had identified the relevant principles of law but had applied them to the incomplete factual scenario it had been presented with by the House of Lords and, second, applied those principles to the fuller factual account of which it was apprised. As such, no question of EU law now arises and a further reference is not necessary. The Court also rejects the Commissioners second principal argument [6]. It does so on the basis that, in the Courts previous judgment, the majority considered that the case could be decided by applying well established principles to the facts of the case. Further, the majority and the minority both acknowledged that the CJEU judgment dealt with the case on the basis that it raised no new point of law. The issues raised by the minority in the previous judgment, so far as relating to EU law, are not considered to require or justify a further reference to the CJEU. As a result of the above findings, the Court does not consider a further reference to the CJEU to be necessary. It also notes that it would be unfortunate if the position were otherwise, given that this litigation commenced in 2003 [7].
The question in this appeal is whether a person who has been detained by the police in Scotland on suspicion of having committed an offence has the right of access to a lawyer prior to being interviewed. Sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995 allow a police constable to detain a person whom he has reasonable grounds for suspecting has committed or is committing an offence punishable by imprisonment. Detention may last for up to six hours. During detention, the police may put questions to the detainee, although the detainee is under no obligation to answer them and is to be informed at the outset of the detention that he is under no such obligation. The detainee is entitled to have a solicitor informed of his detention. However, in terms of the statute, the detainee has no right of access to a solicitor. The question is whether that is a breach of the right to a fair trial, recognised in Article 6(1) and 6(3)(c) of the European Convention of Human Rights (the ECHR). The Appellant was detained by the police on suspicion of serious assault and cautioned, in line with the statute, that he did not have to answer any question, beyond giving his name, address, date and place of birth and nationality. He was told that he was entitled to have a solicitor informed of his detention but he did not exercise that right. He was interviewed without a lawyer being present. During interview, the Appellant made a number of admissions. At trial the Crown led evidence of the police interview with the Appellant and relied on the admissions. The Appellant was convicted. In Salduz v Turkey (2008) 49 EHRR 421 the Grand Chamber of the European Court of Human Rights unanimously held that there had been a violation of Articles 6(1) and 6(3)(c) ECHR because Salduz had not had the benefit of legal advice when he was in police custody. In Her Majestys Advocate v McLean [2009] HCJAC 97, the High Court of Justiciary (sitting with seven judges) held that, notwithstanding the decision in Salduz, it was not a violation of Articles 6(1) & 6(3)(c) ECHR for the Crown to rely at trial on admissions made by a detainee while being interviewed without having had access to a solicitor. This was because the guarantees otherwise available in the Scottish legal system (and, in particular, the requirement that there be corroborated evidence in order to convict) were sufficient to provide for a fair trial. In the present case, relying on the decision in McLean, the appeal court refused the Appellant leave to appeal against his conviction. In effect, therefore, the present case is an appeal against the decision in McLean. The Supreme Court unanimously grants leave to appeal and then goes on to allow the appeal. The ECHR requires that a person who has been detained by the police has the right to have access to a lawyer prior to being interviewed, unless in the particular circumstances of the case there are compelling reasons to restrict that right. The Supreme Court remits the case to the High Court of Justiciary for further procedure. Lord Hope (Deputy President) delivers the leading judgment, with which Lord Mance agrees. Lord Rodger delivers a separate judgment, agreeing with Lord Hope but adding observations of his own. Lord Walker, Lord Brown, Lord Kerr and Sir John Dyson SCJ agree with the reasons given by both Lord Hope and Lord Rodger. The High Court of Justiciarys decision in McLean was entirely in line with previous domestic authority: [29] That authority cannot, however, survive in light of the European Court of Human Rights decision in Salduz and in subsequent cases. Properly interpreted, Salduz requires a detainee to have had access to a lawyer from the time of the first interview unless there are compelling reasons, in light of the particular circumstances of the case, to restrict that right: [35], [36], [38] & [70]. The exception applies only if there are particular circumstances in the individual case and does not allow a systematic departure from the rule such as that set up by the 1995 Act: [41]. The rule in Salduz is based on the right not to incriminate oneself: [33] & [67]. This court should follow Salduz. Indeed, it has no real option but to do so: [93]. Previous cases have established that the court should follow any clear and consistent jurisprudence of the Strasbourg court: [45]. Salduz is a decision of the Grand Chamber, now firmly established in the European Court of Human Rights case law: [48]. The majority of those member states which prior to Salduz did not afford a right to legal representation at interview (Belgium, France, the Netherlands and Ireland) are reforming their laws to bring them into line with the Conventions requirements: [49]. The guarantees otherwise offered by the Scottish legal system (in particular corroboration) are commendable but are beside the point. They do not address the European Courts concern, which is with self incrimination: [50], [66] & [92]. The system of detention under section 14 and 15 of the 1995 Act was expressly designed to deny an individual, reasonably suspected of committing a crime, a right to obtain legal advice when questioned in the hope that, without legal advice, the individual would be more likely to incriminate himself during questioning: [91]. That view of where the balance is to be struck between the public interest and the rights of the accused is irreconcilable with Convention rights: [51]. There is not the remotest chance that the European Court would hold that, because of the other protections that Scots law provides for accused persons, the Scottish system could omit the safeguard of allowing legal advice prior to interview: [93]. The Lord Advocate could not rely upon section 57(3) of the Scotland Act 1998 to prevent her act of leading the evidence of the interview from being unlawful. Section 57(3) would apply where, because of another provision of legislation, the Lord Advocate could not have acted any differently or where she acted to give effect to another provision which could not be read in a way which complies with Convention rights. Neither applied here because of the drafting of section 14(7) of the 1995 Act: [54] & [55]. This decision does not permit closed cases to be re opened. Although a judicial decision has retrospective effect, it does not affect cases which have been finally determined (namely, where an accused was convicted and did not appeal within the relevant time limits, or did appeal and the appeal has been finally disposed of). The decision will, however, affect cases which have not yet gone to trial, where the trial is still in progress or where an appeal has been brought in time and is not yet concluded. The Scottish Criminal Cases Review Commission, if it is asked to do so, will have to determine whether it is in the public interest for cases which have already been finally determined to be referred to the High Court, which will in turn have to decide how to deal with such cases, if a reference is made: [60] [62]; [99] [103].
This appeal raises two issues of tax law. The first (the procedural issue), of general importance to the self assessment regime, concerns the scope of arguments which may be advanced by HMRC in a taxpayers appeal against a closure notice which the HMRC issues to conclude its enquiry into a tax return. The second issue (the expenditure issue) concerns the proper approach to determining whether expenditure has been incurred for the purposes of the Capital Allowances Act 2001. The case concerns the tax consequences of the scheme used by MCashback Limited (MCashback) to raise finance to enable it to roll out M Rewards, a software package which it had developed and which enabled manufacturers to promote products to customers by offering free mobile phone airtime. On the advice of Tower Group plc (Tower), it was decided to raise funds by selling rights to the software, via software licence agreements (SLAs), to four Limited Liability Partnerships to be set up as part of the financing scheme. Tower personnel were founder members of the LLPs and negotiated the SLAs with MCashback. The SLAs provided for each LLP to receive a proportion of the clearing fees which manufacturers would pay in respect of each transaction via the M Rewards system. For the purposes of this litigation, the situation of Tower MCashback 2 LLP (LLP2) has been taken as representative of the other LLPs. LLP 2 entered an SLA with MCashback, under which it was to pay 27.5m for a licence of part of the M Rewards system. LLP2 was entitled to 2.5% of the gross clearance fees received from exploitation of M Rewards. LLP2 obtained the funds required to pay the consideration under the SLA (and the associated professional fees) from investors, who became investor members of LLP2. They contributed 25% from their own funds and obtained the remaining 75% from bank borrowing, on uncommercial terms. Janus Holdings Ltd (Janus) lent the required sum to a special purpose vehicle set up by Tower, which made interest free, non recourse loans to the investor members. MCashback was obliged to deposit approximately 82% of the consideration due to it in terms of the SLA as indirect security for the investor members borrowing from Janus. These sums were placed on security deposit with R&D Investments Ltd (R&D), which R&D in turn deposited with Janus as security for Januss loan to the SPV. LLP2 claimed 27.5m first year capital allowances for the 2004/05 tax year, the amount of consideration set out in the SLA. Because of the way LLPs are taxed, the investor members would take the benefit of these allowances if the claim is successful. One of the conditions for entitlement to capital allowances is that a person incurs qualifying expenditure: section 11 Capital Allowances Act 2001. Expenditure is qualifying expenditure if, amongst other things, it is capital expenditure on the provision of plant or machinery, which includes software or rights to software. On 30 June 2005 HMRC issued a notice of enquiry into LLP 2s partnership return. Attention initially focused on section 45(4) CAA 2001, which withholds first year allowances for expenditure on software rights in certain circumstances. After a lengthy period of enquiry, during which correspondence was exchanged about the application of section 45(4), HMRC issued closure notices (under s28B Taxes Management Act 1970) which stated that, as previously indicated the claim for relief under section 45 CAA 2001 is excessive and amended the partnership return so that the capital allowances claimed, and allowable loss, were nil. The LLPs appealed against the closure notices. Before the Special Commissioner, HMRC abandoned the argument that the claims were disallowed by section 45(4) CAA and sought instead to argue that the full extent of the consideration under the SLAs was not expenditure incurred on software. The Special Commissioner decided the procedural point in favour of the HMRC, allowing them to advance this argument, and, on the expenditure issue, disallowed 75% of LLP2s claims. On appeal, the High Court allowed the LLPs appeals on the procedural issue. It would also have allowed the LLPs appeals on the expenditure issue, had the point arisen for decision. The Court of Appeal, by majority, reversed the High Court on the procedural issue (Arden LJ dissenting), but agreed with the High Court on the expenditure issue. HMRC appeals against the determination of the expenditure issue and the LLPs cross appeal against the determination of the procedural issue. The Supreme Court unanimously allows the HMRCs appeal and dismisses the LLPs cross appeal. Lord Walker issues the leading judgment and Lord Hope a short, concurring judgment. The other members of the Court agree with both. It therefore holds that the HMRC could advance alternative arguments on the expenditure issue, and that all of the consideration provided for in the SLA was not expenditure incurred on the provision of software. The Court directs that the closure notices be amended to allow only 25% of the first year allowances claimed. Procedural issue The Special Commissioners are free to entertain legal arguments which played no part in reaching the conclusions set out in the closure notice. The scope and subject matter of the appeal will, however, be defined by the conclusions stated in the closure notice and any amendments made to the return. The Court emphasises that this is not to be taken as encouragement to HMRC to draft every closure notice in wide and uninformative terms. There is, however, a public interest in taxpayers paying the correct amount of tax and it is one of the duties of the Commissioners to have regard to that public interest. Any potential unfairness to the taxpayer can be avoided by proper exercise of case management powers during the appeal: [15] [18]; [83] [85]. Expenditure issue The court considers two previous decisions of the House of Lords: Ensign Tankers (Leasing) Ltd v Stokes [1992] 1 AC 655 and Barclays Mercantile Business Finance Ltd v Mawson [2004] UKHL 51. Both remain good law: [72] It is not enough for HMRC, in attacking a scheme of this sort, simply to point to money going round in a circle: [77] Nor, however, is it the law as the judge had held that unless one finds the transaction in this case to be a sham, the only possible conclusion is that the whole of the consideration in the SLA was expenditure incurred on the provision of software. In the context of a complex pre ordained transaction, the courts task is to test the facts, realistically viewed, against the statutory test, purposively construed: [67] Entitlement to capital allowances requires there to have been real expenditure for the real purpose of acquiring plant or machinery for use in a trade: [80]. Concerns about the valuation of what is being acquired and the commercial soundness of the transactions are relevant. The fact that rights in the software had been transferred by MCashback to LLP2 demonstrated the reality of some expenditure on acquiring those rights, but did not conclusively show that the whole of consideration in the SLA was expenditure for that purpose. The Special Commissioner found that the market value of the software was very materially below 27.5m. He had also held that there was little chance that the members loan would be repaid in full within ten years as much as 60% might be unpaid, and waived, at the end of that period. These findings justified the conclusion that the money which the investor members borrowed was not used, in any meaningful sense, as expenditure in the acquisition of software rights. Instead, it went in a loop back to the lender in order to enable the LLPs to indulge in a tax avoidance scheme: [75]
On 25 November 1992, Pearse Jordan was shot and killed by a member of the Royal Ulster Constabulary. In 1994, his father, Hugh Jordan, made an application to the European Court of Human Rights (ECtHR) complaining that the failure to carry out a prompt and effective investigation into his sons death was a violation of article 2 of the European Convention on Human Rights (ECHR). An inquest commenced on 4 January 1995 but was adjourned shortly afterwards. On 4 May 2001, in Jordan v United Kingdom (2003) 37 EHRR 2, the ECtHR upheld the complaint and awarded damages of 10,000. A fresh inquest into Pearse Jordans death commenced on 24 September 2012, and a verdict was delivered on 26 October 2012, but Hugh Jorden then brought proceedings for judicial review, which resulted in the verdict being quashed: In re Jordans Application for Judicial Review [2014] NIQB 11. In 2013, Hugh Jordan brought the present proceedings for judicial review seeking declarations that the Police Service of Northern Ireland (PSNI) and the Coroner had violated his article 2 rights by delaying the commencement of the inquest and an award of damages under section 8 of the Human Rights Act 1998 (HRA) in respect of the delay from 4 May 2001 until 24 September 2012. At first instance, Stephens J upheld the claim against the PSNI and awarded damages of 7,500 but dismissed the claim against the Coroner. The PSNI appealed against the declaration and damages award, and Hugh Jordan cross appealed against the dismissal of his claim against the Coroner. On 22 September 2015, the Court of Appeal ordered that the proceedings should be stayed until after the inquest had been completed. That order was subsequently withdrawn, and an order in similar terms was made on 10 June 2017, which Mr Jordan appealed against. Meanwhile, a further inquest had commenced on 22 February 2016, and a verdict was delivered on 9 November 2016. The stay was lifted on 23 October 2017. The Supreme Court unanimously allows the appeal. Lord Reed, with whom the rest of the Court agrees, delivers the judgment. The Court of Appeal in Northern Ireland held that in so called legacy cases, which concern deaths that occurred in Northern Ireland during the Troubles, the issue of damages against any public authority for breach of the adjectival obligation in article 2 ECHR [i.e. the obligation to investigate the circumstances of the death] ought to be dealt with once the inquest has finally been determined. This appeared to constitute general guidance, and, consistently with this, the Court of Appeal ordered that the claim for damages for breach of the article 2 procedural requirement that an inquest be conducted promptly should not be brought until the inquest has finally been determined. [16] [17] The appeal was against this part of the Court of Appeals order. [20] After the hearing of this appeal, the Court of Appeal, in another legacy case, In Re McCords Application for Judicial Review, clarified the remarks in Jordan, so that it appears that it intends the guidance to be confined to cases where damages are the only outstanding issue and where an inquest can be expected to begin in the near future, if not already under way. Further, the appropriateness of the stay should be kept under review, and it should be lifted if the claim for damages will otherwise not be determined within a reasonable time. [24] Lord Reed states that it must be borne in mind at the outset that, in cases of the present kind, it is the delay itself which constitutes a breach of the claimants Convention rights and that [t]he breach does not crystallise only after the inquest has been concluded. [25] Section 7(1)(a) of the HRA, pursuant to which claims arising from such delay are brought, confers a statutory right on any person to bring proceedings against a public authority that acted in a way which was incompatible with their Convention right. [26] No court can take that statutory right away. [27] However, it can exercise powers of case management, including ordering a stay, but, when doing so, three important aspects of Convention rights must be borne in mind. [28] First, Convention rights must be practical and effective. [29] Second, a stay will be unlawful if it results in a breach of the reasonable time guarantee in article 6 of the Convention. [31] [32] Third, a stay also engages another aspect of article 6, namely the guarantee of an effective right of access to a court. It must therefore pursue a legitimate aim, and there must be a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. [33] This requires an assessment of the weight of the competing interests in the particular case: the risk of a proliferation of litigation, the avoidance of which was the legitimate aim pursued by the stay, against the importance to the claimant of obtaining monetary redress for the violation of his or her Convention rights without avoidable delay. There may be factors in individual cases which make the expeditious determination of the claim particularly important. The present case, for example, illustrates the importance of avoiding delay where proceedings are brought by claimants who are elderly or infirm, since Hugh Jordans health has so deteriorated that his wife had to take over the conduct of these proceedings. [37] On its face, the guidance given by the Court of Appeal in the present case involved no assessment of proportionality or consideration of individual circumstances. It was also liable to render the article 2 procedural right ineffective resulting in breaches of the reasonable time guarantee. [39] However, the McCord judgment resolved this. Nevertheless, it remains necessary to consider whether that general guidance should be applied in the circumstances of an individual case. In the present case, the stay was imposed without any evident consideration of its proportionality. It is uncertain whether it would have been imposed if proportionality had been considered in the light of all the relevant facts, including Hugh Jordans declining health. The appeal is therefore allowed. [41] [42]
Dr Williams claims to be the victim of a fraud instigated by the Nigerian State Security Services which occurred in 1986. His case is that he was induced to serve as guarantor of a bogus transaction for the importation of foodstuffs into Nigeria. In connection with that transaction, he paid $6,520,190 (USD) to an English solicitor, Mr Reuben Gale, to be held on trust for him on terms that it should not be released until certain funds had been made available to him in Nigeria. Dr Williams says that in fraudulent breach of that trust, Mr Gale, knowing that those funds were not available to him in Nigeria, paid out $6,020,190 of the money to an account held by the Central Bank of Nigeria with Midland Bank in London, and that he pocketed the remaining $500,000. The Central Bank is said to have been party to Mr Gales fraud. Dr. Williams claimed against the Central Bank on the basis that the Bank was a constructive trustee. The Bank was alleged to have dishonestly assisted Mr. Gale to pay away the $6,520,190, and to have received the $6,020,190 knowing that it represented trust funds paid to it in breach of trust. There was also a claim to trace to the latter sum into the Banks assets. The question on this appeal is whether the order permitting Dr Williams to serve the claim form and particulars of claim on the Central Bank in Nigeria should be set aside and a declaration made that the English court lacks, or at any rate should not exercise, jurisdiction in respect of it. That in turn depends on whether there is a serious issue to be tried [1]. This depends on whether Dr. Williams claims are time barred under the Limitation Act 1980. It is common ground that, in so far as any such trust claim is subject to statutory limitation, the limitation period has expired. The issue turns on whether these claims were exempt from statutory limitation by virtue of section 21 of the Limitation Act 1980 [2]. Section 21 provides that no period of limitation shall apply to (a) an action by a beneficiary under a trust, in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy or (b) recovery from the trustee of trust property or the proceeds of trust property [3]. Two questions arose. First, whether a stranger to a trust, who dishonestly assists in a breach of trust or knowingly receives trust property paid out in breach of trust, is a trustee for the purposes of the Act. If the answer to that question is No, then the second question is, whether an action in respect of any fraudulent breach of trust to which the trustee was a party is limited to an action against the trustee or includes an action against the stranger [4]. By a majority the Supreme Court allows the appeal and declares that the English court has no jurisdiction in respect of this action. The order for service out of jurisdiction and the service itself must be set aside [38]. Lord Sumption (with whom Lord Neuberger and Lord Hughes agree), writing the lead judgment, holds that the 1986 trust claims are time barred essentially because section 21 of the Limitation Act is concerned only with actions against true trustees and the Central Bank is not a true trustee. This is because a constructive trust of the kind alleged against the Bank is not a true trust but merely a basis for granting equitable relief [6]. Lord Sumption distinguishes between two categories of constructive trusts, namely one that comprises de facto trustees and cases of ancillary liability [8]. The distinction is relevant because the rationale behind the original rule that trustees are accountable to their beneficiaries without limitation of time will not necessarily apply to every kind of constructive trust. Trust assets are assets lawfully vested in a trustee. If the trustee misapplies the assets, equity ignores the misapplication and simply holds him to account for the assets as if he had acted in accordance with his trust. There is nothing to make time start running against the beneficiary. Persons who are under a purely ancillary liability are in a different position to this. Their acts and their receipt of the assets are at all times adverse to both the true trustees and the beneficiaries. They are liable to account in equity, but as wrongdoers, and not as true trustees. [13 31]. Once the first question is answered in the negative, the second question then arises whether the Central Bank is nevertheless a party sued in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy for the purposes of the Limitation Act. The majority hold that it is not. Section 21(3) is concerned only with actions against trustees on account of their own fraud or fraudulent breach of trust [32 36]. Lord Neuberger (with whom Lord Hughes also agrees) agrees with Lord Sumption that the appeal should be allowed [42]. On the first question Lord Neuberger concludes that a trustee does not include a party who is liable to account in equity simply because he was a dishonest assister and/or a knowing recipient. This is because such a party is not a constructive trustee and a trust and trustee were, pursuant to the legislation, meant to have orthodox meanings [90]. On the second question Lord Neuberger would hold that the narrower meaning of section 21(1)(a) is to be preferred, namely that it only applies to claims brought against the trustee who was a party or privy to the fraud or fraudulent breach of trust [92 & 113]. In a dissenting judgment, Lord Mance considers that the appeal by the Central Bank should be dismissed [163]. Lord Mance takes the view that Dr Williams claim against the Central Bank as an alleged dishonest assister falls within section 21(1)(a) and is not time barred because Parliament intended to treat dishonest assisters as in the same position as regards limitation as the dishonest trustees they assist [157]. As to Dr Williams claim for knowing receipt by the Central Bank, Lord Mance does not agree with Lord Neuberger that the phrases trust and trustee are limited in meaning so as to exclude a knowing receipt [161] and therefore considers that Dr Williams should also succeed on this point. In an additional dissenting judgment, Lord Clarke agrees with the majority that the central Bank is not a trustee within the meaning of section 21(1)(a) [165]. Further, he agrees with Lord Neuberger that a knowing assister is not a constructive trustee [166]. However, with regard to the second question in this appeal, Lord Clarke would hold that the action falls within the ordinary meaning of the language of the statute [171] and would thus dismiss the Central Banks appeal on this point [182].
Local housing authorities have statutory obligations under Part VII of the Housing Act 1996 (the 1996 Act) to provide assistance to people who are homeless in certain circumstances. When an application for such assistance is received, the authority will carry out investigations under s.184 of the 1996 Act to ascertain whether the applicant qualifies for local authority housing. Under s.188 of the 1996 Act, the authority must provide the applicant with interim accommodation (s.188 accommodation) during the time it takes to carry out these investigations [1]. The two appellants in this case were children of families provided with s.188 accommodation while their housing applications were considered. CNs mother JN was granted a licence to occupy a privately owned property by the London Borough of Lewisham (Lewisham) in November 2011 [2]. From November 2012, ZH and his mother FI occupied s.188 accommodation, in the form of a flat owned by a private company, under a licence granted by the London Borough of Newham (Newham) [6]. Both JN and FIs substantive housing applications were refused, at which point the obligation on Lewisham and Newham (the authorities) to provide s.188 accommodation ended and JN and FI were told to vacate the properties; JN in May 2012 [5] and FI in March 2013 [6]. CN and ZH commenced separate judicial review proceedings challenging these evictions [9]. They argued that even after the s.188 duty ceased, the authorities could not lawfully evict them from their s.188 accommodation without first giving notice and obtaining a court order. They relied on ss.3(1) and 3(2B) of the Protection from Eviction Act 1977 (PEA) which together provide that in relation to any premises occupied as a dwelling under a licence, other than an excluded licence, where the licence has come to an end but the occupier continues to reside in the premises it shall not be lawful for the owner to enforce against the occupier, otherwise than by proceedings in the court, his right to recover possession of the premises. Section 5(1A) PEA further provides that no less than four weeks written notice must be given to end a periodic licence to occupy premises as a dwelling, other than an excluded licence [19]. The excluded licences not protected by ss.3 and 5 are listed at s.3A PEA; the list does not include s.188 accommodation [18]. The two judicial review claims were given permission in the High Court and transferred to the Court of Appeal, where they were heard together [8]. On 11 July 2013 the Court of Appeal dismissed the claims [9]. The Supreme Court dismisses the appeal by a majority of five to two. It holds that Newham and Lewisham are entitled to evict the appellants from s.188 accommodation without first obtaining a court order. Lord Hodge (with whom Lord Wilson, Lord Clarke and Lord Toulson agree) gives the main judgment. Lord Carnwath gives a concurring judgment. Lord Neuberger and Lady Hale give dissenting judgments. Is s.188 accommodation occupied as a dwelling under a licence for the purposes of ss.3 and 5 PEA? Lord Hodge holds that the word dwelling does not have a technical meaning but suggests a greater degree of settled occupation than residence and can be equated with ones home [45]. It bears the same meaning in PEA as in predecessor legislation (the Rent Acts) [26]. On an assessment of the legal and factual context, a licence to occupy s.188 accommodation is not granted for the purpose of using the premises as a dwelling. First, the statutory context is inconsistent with such a purpose; s.188 imposes a low threshold duty on a local housing authority to provide interim accommodation (not a home or fixed abode) for a short and determinate period only [33]. Secondly, such a licence is granted on a day to day basis allowing the authority to transfer the applicant to alternative accommodation at short notice [34]. Thirdly, (although this is not of itself determinative) to hold otherwise would hamper the operation of the 1996 Act by introducing delays for court proceedings to effect evictions from accommodation needed for other homeless applicants [35]. Further, the absence of an express exclusion in s.3A PEA for s.188 accommodation does not mean that such accommodation falls within s.3 PEA [49]. Parliament sought confirm excluded tenancies and licences for the avoidance of doubt but did not intend to thereby extend protection to accommodation that would not have classified as a dwelling under the Rent Acts [47]. Lord Carnwath adds that settled practice may, in appropriate circumstances, be an aid to statutory interpretation [95]; were the issues more finely balanced, the fact that the Court of Appeals statutory interpretation in Mohammed v Manek (1995) 27 HLR 439 has been adopted in departmental guidance would be an additional reason to dismiss the appeal [98]. In dissenting judgments, Lord Neuberger [128] and Lady Hale [158] hold that in the context of PEA 1977 dwelling has at least as broad a meaning as residence. Lord Neuberger considers that Sections 3 and 5 PEA should be accorded a wide rather than a narrow effect as they reflect a policy that people who have been lawfully living in premises should not be summarily evicted [135]. Premises may be occupied as a dwelling notwithstanding said occupation is short term, provisional or precarious [136]. This interpretation is supported by the absence of a specific exclusion in s.3A PEA [139]. Does Article 8 ECHR require the authorities to obtain court orders before carrying out evictions? The parties were in agreement that the appellants Article 8 rights were engaged [60]. Lord Hodge (with whom Lord Neuberger, Lord Wilson, Lord Clarke, Lord Carnwath and Lord Toulson agree) holds that the interference with the appellants Article 8 rights was objectively justified. The termination of an unsuccessful applicants licence to occupy s.188 accommodation is in accordance with the law and pursues the legitimate aim of inter alia accommodating other homeless applicants [67]. Recovery of possession is proportionate to that aim because in the context of limited resources there can generally be no justification for preferring those whose claims have been investigated and rejected [68]. The procedural safeguards contained in the 1996 Act, the Children Act 1989, and by way of judicial review, together afford fair procedure such as to comply with the requirements of Article 8 [64]; there is no need to impose the additional hurdle of obtaining a court order [68]. (As Lady Hale finds for the appellants as a matter of statutory interpretation, in her judgment the Article 8 issue does not arise [168].)
These appeals relate to the proper interpretation of paragraph 49 of the National Planning Policy Framework (NPPF), as well as the NPPFs relationship with the statutory development plan. Part 2 of the Planning and Compulsory Purchase Act 2004 requires local planning authorities to prepare a development plan. In preparing local development documents authorities must have regard to national policies and advice issued by the Secretary of State, pursuant to section 19(2). Section 38(6) of the 2004 Act and section 70(2) of the Town and Country Planning Act 1990 provide for the development plan to be taken into account in the handling of planning applications. The NPPF was published on 27 March 2012. Paragraph 14 of the Framework deals with the presumption in favour of sustainable development, and includes the tilted balance provision: that where the development plan is silent or policies out of date, permission should be granted unless any adverse impacts of doing so would significantly and demonstrably outweigh the benefits, when assessed against the policies in this Framework taken as a whole. Paragraph 49 adds that: Relevant policies for the supply of housing should not be considered up to date if the local planning authority cannot demonstrate a five year supply of deliverable housing sites. In Suffolk Coastal the council refused planning permission for a development of 26 houses in Yoxford, upheld by the inspector on appeal. The inspector considered which local policies were relevant policies for the supply of housing within the meaning of paragraph 49 of the NPPF. The High Court held that he had erred in thinking that paragraph 49 only applied to policies dealing with the positive provision of housing and so quashed his refusal. Its decision was confirmed by the Court of Appeal. In Richborough Estates the council failed to determine the application, and Richborough Estates appeal was allowed by the inspector. The council succeeded in the High Court on the basis that the inspector erred in treating one of the local policies as a relevant policy under paragraph 49 and in seeking to divide the policy, so as to apply it in part only. That decision was reversed by the Court of Appeal. The Supreme Court unanimously dismisses both councils appeals. Lord Carnwath gives the lead judgment, with which Lord Neuberger, Lord Clarke and Lord Hodge agree. Lord Gill gives a concurring judgment, with which Lord Neuberger, Lord Clarke and Lord Hodge agree. The Secretary of States power to issue national policy guidance such as the NPPF derives, expressly or by implication, from the planning Acts which give him overall responsibility for oversight of the planning system. This is reflected both in specific requirements and more generally in his power to intervene in many aspects of the planning process [19 20]. The policy making role should not, however, be overstated: the NPPF itself makes clear that in respect of the determination of planning applications (by contrast with plan making) it is not more than guidance for the purposes of section 70(2) of the 1990 Act. It does not displace the primacy of the statutory development plan [21]. The correct approach to the interpretation of a statutory development plan was discussed by the Supreme Court in Tesco Stores Ltd v Dundee City Council [2012] UKSC 13 [23]. It is important that the role of the court is not overstated: in Tesco Stores Lord Reed identified the interpretation of the word suitable as the short point to determine, and further recognised that some policies in the development plan may be expressed in broader terms and not require the same level of legal analysis [24]. These are statements of policy whether in a development plan or in a non statutory statement such as the NPPF and must be read in that light; they are not statutory texts [74]. Lord Gill adds that the NPPF expresses general principles applied by more specific prescriptions. These must always be interpreted in the overall context of the guidance document [75]. Furthermore, the courts should respect the expertise of the specialist planning inspectors, and start at least from the presumption that they will have understood the policy framework correctly. Their position is in some ways analogous to that of expert tribunals, in respect of which the courts have cautioned against undue intervention by the courts in policy judgments within their areas of specialist competence [25]. Recourse to the courts may sometimes be needed to resolve distinct issues of law, or to ensure consistency of interpretation in relation to specific policies. However, it is important to distinguish clearly between issues of interpretation of policy, appropriate for judicial analysis, and issues of judgement in the application of that policy [26]. Lord Gill describes the proper role of the courts as interpreting a policy or the NPPF where its meaning is contested, while that of the planning authority is to apply the policy or guidance to the facts of the individual case [72, 73]. The primary purpose of paragraph 49 of the NPPF is simply to act as a trigger to the operation of the tilted balance under paragraph 14 [54]. Paragraph 14 unlike paragraph 49 is not concerned solely with housing policy and needs to work for other forms of development covered by the development plan. For example, whether a relevant policy for the supply of employment land becomes out of date is a matter of planning judgment [55]. Housing policies deemed out of date under paragraph 49 must also be read in that light and it is not necessary to label other policies as out of date merely in order to determine the weight to be given to them under paragraph 14 [56]. Paragraph 49 appears in a group of paragraphs dealing with the delivery of housing, with paragraph 47 providing the objective of boosting the housing supply [76, 80]. In that context the words policies for the supply of housing indicate the category of policies with which we are concerned: the word for simply indicates the purpose of the policies in question. There is no justification for substituting the word affecting which has a different emphasis [57, 82]. Although this can be regarded as adopting the narrow meaning, it should not be seen as leading to the need for a legalistic exercise to decide whether individual policies do or do not come within the expression. The important question is not how to define the individual policies, but whether the result is a five year supply in accordance with the objectives set by paragraph 47 [59]. On both appeals the Supreme Court reaches the same result as the Court of Appeal [62, 86]: in Richborough Estates the inspector erred in treating policy NE.2 as a policy for the supply of housing under paragraph 49, but that did not detract materially from the force of his reasoning [63]. In Suffolk Coastal the inspectors approach was open to criticism because his categorisation of SP 19 and SP 27 was inappropriate and unnecessary, rather than erroneous as the Court of Appeal held. It nevertheless gave rise to an error of law insofar as it may have distorted his approach to paragraph 14 [65, 68].
Scottish Widows Plc (Scottish Widows) is a life assurance company. It was established in 2000, when it acquired the business of Scottish Widows Fund and Life Assurance Society (the Society) under a scheme of transfer which had been approved by the Court of Session in Scotland. Scottish Widows acquired assets under the scheme which had an approximate value of 25bn, and it became subject to actuarial liabilities of approximately 19bn. Members of the Society received compensation of approximately 5.8bn, which represented the surplus of the Societys assets over its liabilities at the time of the transfer. The compensation was paid by Scottish Widows holding company, in return for the members of the Society giving up their right to participate in the surplus. The scheme provided that Scottish Widows was to establish and maintain a Long Term Business Fund (LTBF) to fund its long term insurance business. It also provided that there was to be a memorandum account within the LTBF, called the Capital Reserve. This was said to represent the value of shareholders capital within the LTBF. Life assurance companies are required to submit annual regulatory returns, in particular to demonstrate solvency. Various forms are prescribed for these returns. One these is known as Form 40, which is a revenue account in respect of the LTBF. In the years following transfer the value of the assets of Scottish Widows LTBF fell substantially, principally because of falls in the stock markets. To cover those losses and to allow for distributions to policyholders, Scottish Widows brought into account amounts on Form 40 for each of the accounting periods 2000, 2001 and 2002. These amounts were recorded in line 15 of the relevant Form 40s. They were described as transfers from the Capital Reserve. Section 83 Finance Act 1989 provides for certain sums to be brought into account in the computation of the profits of an insurance company in respect of its life assurance business for the purposes of corporation tax. In the terms that were in force between 2000 and 2003 section 83(2) provided that: [T]he following items, as brought into account for the period of account (and not otherwise), shall be taken into account as receipts of the period (a) the companys investment income from the assets of its long term business fund, and (b) any increase in value (whether realised or not) of those assets. Section 83(3)(a) made provision for ascertaining whether or to what extent a company had incurred a loss in respect of its life assurance business where an amount was added to an insurance companys long term business fund as part of or in connection with a transfer of business to that company. The Revenue maintained that the amounts to be brought into account as receipts for the computation of profits or losses for tax purposes under section 83(2)(b) or, in the alternative, under section 83(3)(a) were the amounts shown in line 15 on Form 40. It maintained that the reference to a difference in value as brought into account directed attention to the figures that had been entered on Form 40, not the market value of the assets of the LTBF. Scottish Widows argued that the words increase in value in section 83(2)(b) meant an increase in the actual value of actual assets, and that the words as brought into account were concerned with when the increase was brought into account, not the extent of the increase. Here the value of the assets of the LTBF had fallen during each of the relevant periods. So there was no increase which could be brought into account. The parties referred the question whether, in computing the Case I profit or loss of Scottish Widows for the accounting periods ending in 2000, 2001 and 2002, the amounts that fell to be taken into account as receipts to the Special Commissioners were the amounts shown in line 15 of Form 40. It was agreed that, if Scottish Widows argument that it is actual values and not those amounts that should be taken into account is correct, it will have allowable losses in respect of those years of 28.7m, 612.6m and 431.3m. The Special Commissioners answered the question in the affirmative. They held that, although the amounts shown on Form 40 were not to be brought into account by section 83(2), they were covered by section 83(3)(a). The Inner House unanimously dismissed the Revenues appeal against the decision on section 83(2) and by majority (Lord Emslie dissenting) dismissed Scottish Widows cross appeal against the decision in respect of section 83(3)(a). Scottish Widows appealed and the Revenue cross appealed. The Supreme Court unanimously allows the Revenues cross appeal and holds that the amounts that were to be taken into account as receipts by virtue of section 83(2) were the amounts shown on Form 40. It therefore answers the question that was referred to the Special Commissioners in the affirmative. Lord Hope and Lord Walker both give detailed judgments. Lady Hale and Lord Neuberger give shorter judgments, agreeing with each other and with Lord Hope and Lord Walker. Lord Clarke agrees with all of the judgments. Although the applicable statutory provisions had been amended on various occasions, it was not helpful to look at their legislative history. That should only be done where there is an interpretative difficulty which classical methods of construction cannot solve. The proper approach was to concentrate on the wording of sections 83(2) and (3)(a) as they were during the relevant accounting periods: [15], [73], [122] [124]. Lord Walker analyses in detail the regulatory and taxation regime which applies to life assurance companies and the particular features of the demutualisation scheme so as to provide a backdrop to the statutory construction: [40] [71]. There were two particularly important points. One was that when completing regulatory returns, book values could be used, and that an insurer enjoyed a certain freedom in determining what amount of its actuarial surplus to recognise in its returns: [82] [86]. It was also particularly important to appreciate the nature of the Capital Reserve. It was not a fund of particular assets, separate from the LTBF, but was merely an accounting category recording an initial value within the LTBF: [87] [91] [101]. The key to interpreting section 83(2) was the phrase as brought into account and, in particular, the use of the word as: [22], [76], [116], [125]. This demonstrated that the computation must proceed on basis of what was actually entered on the appropriate regulatory account, in this case the form known as Form 40. It was important that, when completing its returns, an insurance company should be permitted to use book values: [20]. The various arguments which were advanced in favour of Scottish Widows construction, based on general principles of interpreting tax legislation ([24] [26], [101] [102]), the statutory scheme and specific aspects of the drafting ([23], [107] [112]), fell to be rejected in the face of this clear statutory language. The Special Commissioners and, to some extent, the Court of Session had attached too much weight to the label Capital Reserve, which had led them to attach undue weight to the notion that capital gains ought not to be taxed under Schedule D, Case I: [26], [101]. Given that the Court allows the Revenues cross appeal, a majority preferred to express no view on section 83(3)(a). Lord Hope indicated that, had it been necessary to decide the point, he would have held in agreement with the majority in the Inner House that the relevant amounts would have been covered by section 83(3)(a): [28] [31].
This appeal concerns the right under EU law for family members to move and reside with an EU citizen exercising the right of freedom of movement. The appellant SM, given the name Susana in the judgment, is a citizen of Algeria. She is a young child who has been placed into the legal guardianship of EU citizens under the Islamic kefalah system. Susanas guardians (Mr and Mrs M) are French nationals of Algerian ethnicity, who married in the United Kingdom in 2001. In 2009 they travelled to Algeria, where they were assessed as suitable to become guardians. Susana was abandoned after her birth in June 2010. Mr and Mrs M applied to become her guardians and after three months Susana was placed under their guardianship. A legal custody deed was later issued in Algeria. Mr M returned to the UK in 2011 and resumed his work as a chef. Mrs M remained in Algeria with Susana. In May 2012 Susana applied for entry clearance to the UK, as the adopted child of a EU national, under regulation 12(1) (as a family member) or 12(2) (as an extended family member) of the Immigration (European Economic Area) Regulations 2006 (the Regulations). The Regulations transposed Directive 2004/38/EC (the Directive) into UK law. The respondent refused Susanas application on the basis that the Algerian guardianship was not recognised as an adoption in UK law. Susanas appeal was refused by the First tier Tribunal but allowed by the Upper Tribunal. The Court of Appeal, allowing the respondents appeal, held that member states were permitted to restrict the forms of adoption which they would recognise as falling within the definition of family member, and that those restrictions could not be undermined by recognising the child as an extended family member. Susana appealed to the Supreme Court. Before the hearing, the Upper Tribunal in another case (Sala v Secretary of State for the Home Department [2016] UKUT 00411) held that there was no statutory right of appeal against the refusal of a residence card to a person claiming to be an extended family member, as it was not an EEA decision for the purposes of regulation 26(1) of the Regulations. A further issue therefore arose before the Supreme Court as to whether it had jurisdiction to hear the appeal. The Supreme Court unanimously holds (1) that it does have jurisdiction to hear the appeal, Sala having been wrongly decided; and (2) refers three questions to the Court of Justice of the European Union for a preliminary ruling. Lady Hale, with whom all the other justices agree, gives the only judgment. It was submitted on behalf of Susana that she fell within the definition of family member under article 2.2(c) of the Directive, which referred to direct descendants who are under the age of 21, and as such was entitled to move with and reside with Mr and Mrs M. Alternatively, she came within the discretionary provisions of article 3.2(a) as any other family members, irrespective of their nationality, not falling under the definition in point 2 of article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen. The transposition of Article 3.2(a) into Regulation 8 of the Regulations dealing with extended family members was inaccurate insofar as it imposed a requirement that the dependant or member of the household be a relative of the EEA national [7]. The Supreme Court had little doubt that Susana would fall within article 3.2(c) if she did not fall within article 2.2(c). The term family member is wide enough to include people who are not related by consanguinity or affinity, and is clearly capable of including a child for whom the Union citizen has parental responsibility under the law of the childs country of origin [17]. UK legislation relating to foreign adoptions was relevant to the examination of whether to exercise the discretion to facilitate entry and residence. Refusal would in principle be justified if there were reason to believe the child was the victim of exploitation, abuse or trafficking, or that the claims of the birth family had not been respected [18], but the fact that the arrangements did not comply in every respect with the stringent requirements of UK adoption law would not be determinative [19]. The best interests of the child were a primary consideration, and would depend on factors such as what would have happened to her if the kefalah arrangement had not been established, the background and how well integrated into the family and household she now was [20]. The purpose of the Directive to strengthen the right of free movement was a further consideration [21]. There was also reason to consider that Susana qualified for automatic rights of entry and residence as a direct descendant. This was an autonomous term in EU law and required a uniform interpretation throughout the Union [25]. It was not clear from existing case law whether a child in Susanas position should fall within article 2.2. The procedural safeguards and provisions against abuse of rights in the Directive might be ineffective to prevent a child being the victim of exploitation, abuse or trafficking [31], whether that child was a third country national or a national of another member state [32]. Accordingly, the Supreme Court refers three questions to the CJEU for a preliminary ruling: (1) Is a child who is in the permanent legal guardianship of a Union citizen or citizens, under kefalah or some equivalent arrangement provided for in the law of his or her country of origin, a direct descendant within the meaning of article 2.2(c) of the Directive? (2) Can other provisions in the Directive, in particular articles 27 and 35, be interpreted so as to deny entry to such children if they are the victims of exploitation, abuse or trafficking or are at risk of such? (3) Is a member state entitled to enquire, before recognising a child who is not the consanguineous descendant of the EEA national as a direct descendant under article 2.2(c), into whether the procedures for placing the child into the guardianship or custody of that EEA national was such as to give sufficient consideration to the best interests of that child? On the question of jurisdiction, Sala had rightly been overruled by the Court of Appeal in a subsequent decision on the interpretation of regulation 26 of the Regulations. Susana did enjoy a right of appeal in respect of both articles 2.2 and 3.2 [34 41].
The appellant Shaun Docherty was convicted on 13 November 2012 of serious violent offences under s.18 of the Offences against the Person Act 1861. He had displayed a clear pattern of aggressive offending and posed a high risk of serious further violence. The nature of Dochertys offences was such that he fell under the scheme of preventative sentencing for dangerous offenders, defined by the Criminal Justice Act 2003 (CJA 2003) as those who are convicted of specified offences and who present a significant risk to the public of serious harm from further serious offending. The statutory maximum sentence for the offences of which Docherty was convicted is, and has been for well over a century, life imprisonment. The scheme under the CJA 2003 included inter alia a possible indeterminate sentence of imprisonment for public protection (IPP). This required the judge to specify a minimum period to be served before the IPP prisoner could be eligible for release on licence, providing that the Parole Board was satisfied that it was no longer necessary for the protection of the public that he be detained. The CJA 2003 also provided a form of extended sentence known as an extended sentence for public protection (EPP). That scheme was later replaced by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), which introduced new discretionary and mandatory life sentences and a new form of extended determinate sentence (EDS), while abolishing IPP and EPP. A Commencement Order specified the commencement date as 3 December 2012 for the new scheme, and included transitional provisions that IPP and EPP would still be available for anyone convicted but not yet sentenced before 3 December 2012, as in the case of the Appellant. The Appellant was sentenced to IPP on 20 December 2012, with a specified minimum period of five years and four months. The Appellant contended that he ought to have been sentenced instead to EPP, and that the Commencement Order was unlawful to the extent that its transitional provisions preserved IPP for him. He argued the Order was unlawful for three reasons. Firstly, the new scheme was less severe, so to apply the harsher, earlier scheme was contrary to an international principle of lex mitior binding on English courts by virtue of article 7 of the European Convention on Human Rights (ECHR). Secondly, because the purpose of LASPO was to remove IPP as a sentencing option, preserving it to any extent was outside the authority given by LASPO. Thirdly, it was unlawful discrimination contrary to Article 14 ECHR to impose IPP on him but not on a person convicted after the specified commencement date. The Court of Appeal dismissed all of the Appellants arguments and the Appellant appealed to the Supreme Court. The Supreme Court unanimously dismisses Mr Dochertys appeal. Lord Hughes gives the judgment, with which the rest of the Court agrees. The Commencement Order setting out transitional provisions for the introduction of LASPO was lawful. It did not breach Article 7 ECHR, it was legitimately made and was rational, and if it was discriminatory (which was doubtful) then it was justifiably so. With the exception of a mandatory life sentence for murder, English criminal sentencing is a matter for the judge. Statute prescribes the statutory maximum, within which the judge may sentence, taking into account the relevant guidelines. The judge must sentence according to the law and practice prevailing at the time of sentence, regardless of when the offence was committed. Thus if the maximum sentence has been reduced by statute since the offence was committed, the court will sentence within that now current maximum, or if sentencing practice has moved downward, the court should sentence in line with that. Article 7 ECHR requires that there be no punishment without law. This has always said, explicitly, that no sentence may be imposed which exceeds that to which the defendant was exposed at the time of committing the offence (lex gravior). Since the statutory maximum for the Appellants offences was the same at the time of offence and sentence, the principle of lex gravior is not offended. The principle of lex mitior, in contrast, is that if provision is made by law for a lighter penalty, subsequent to the commission of the offence, the offender shall benefit from that lighter penalty. The Strasbourg court has held in 2010 in Scoppola v Italy (No 2) (2010) 51 EHRR 12 that Article 7 also requires compliance with this principle. There are some difficulties in establishing the exact meaning which the court gave to lex mitior, but it is not necessary to resolve them because it is clear that the English practice of sentencing according to current law and practice, subject to the statutory maximum obtaining at the time of the offence (if lower) complies with it. The Strasbourg court cannot have meant that it is necessary to examine all intervening rules or practices between the offence and the sentencing process, and to sentence according to whichever is the most favourable. That would not accord with good reason or with the rationale of lex mitior, or with the English practice. Lex mitior is in any event of no assistance to Docherty because it does not involve anticipating the commencement of a new and more favourable sentencing scheme [42 49]. The reading of the provisions of the Commencement Order, together with the provisions of LASPO is clear: IPP and EPP disappear from the sentencing armoury on 3 December 2012, except for anyone already convicted but not yet sentenced, as in the case of the Appellant. There was no breach of Article 7 ECHR. In any event, the Appellants argument that he should benefit from the accelerated removal of IPP from the old scheme but claim the preservation of another part of it (EPP) is inconsistent [58]. Further, there was nothing contrary to LASPOs statutory purpose in the Commencement Orders transitional provisions. s.151 of LASPO enables such an order to be made, and that it may make transitional provisions. The phased commencement of the new sentencing scheme was both legitimate and rational. The Appellants discrimination argument also fails. It is doubtful whether being subjected to a different sentencing regime to another prisoner, due to a different date of conviction, could amount to a sufficient status to bring it within the anti discrimination provision of Article 14 ECHR. Even if it could, the differential treatment is clearly justified by the need for all sentencing changes to start somewhere [61 63].
Richard Durkin visited a PC World store in Aberdeen on 28 December 1998 to purchase a laptop computer, making clear that he wanted one with an internal modem. A sales assistant identified a laptop but said he was unsure whether it had an internal modem. He agreed that Mr Durkin could take the computer home and return it if it did not. Mr Durkin paid a 50 deposit and signed a credit agreement given to him by the sales assistant for the balance of 1,449. The assistant signed the credit agreement on behalf of a lender, HFC Bank plc [2]. On returning home, Mr Durkin found that the computer did not have an internal modem. At about 9am the next day, he returned it and asked for his deposit back and for the credit agreement to be cancelled. A store manager refused to accept his rejection of the goods and took no step to cancel the credit agreement [2]. Mr Durkin eventually raised an action and in March 2008 the sheriff declared he had validly rescinded the contract of sale. This was not challenged on appeal [3]. Mr Durkin did not pay any money to HFC under the credit agreement. In February 1999, he responded by telephone to a request for payment, explaining that he had rejected the laptop and rescinded both his contract with PC World and the credit agreement. The following month, Mr Durkin wrote to the managing director of PC World to explain that he had rejected the computer, that PC Worlds manager had refused to refund the deposit and that HFC was demanding money from him because the manager would not tell HFC the goods had been rejected [4]. HFC wrote again in July 1999 warning Mr Durkin that if he did not resume payments he might have difficulty obtaining credit because HFC made monthly reports to credit reference agencies. It added that if he did not respond to the letter, HFC would serve a default notice on him under the Consumer Credit Act 1974. Mr Durkin telephoned HFC to re affirm his position [5]. Without making any enquiries about his claim to have rescinded both agreements, HFC issued a default notice and intimated to credit reference agencies that Mr Durkin had been in default of his obligations under the credit agreement since 14 January 1999. Entries remained on their registers until 2005 or 2006 [6]. Mr Durkin recovered his deposit out of court, but found that the credit register entries prevented him from opening new accounts with other lenders, meaning he could not continue to take advantage of offers of 0% credit on transferred balances to minimise the costs of his borrowing by transferring from one credit card company to another [7]. He raised an action in the Sheriff Court in 2004 seeking a declarator that he had validly rescinded both the contract of sale and the credit agreement. He claimed damages of 250,000 from HFC for its negligence in representing to the credit reference agencies that he had defaulted. He did so under three heads: (i) damage to his financial credit, (ii) loss from interest charges caused by his inability to exploit offers of 0% credit and (iii) loss of a capital gain caused by his inability to put down a 30% deposit on a Spanish property in 2003 [8]. In March 2008, the sheriff held that section 75 of the 1974 Act meant that Mr Durkin had been entitled to rescind and had rescinded the sale contract and the credit agreement. He awarded 8,000 for injury to credit, 6,880 for additional interest Mr Durkin had to pay, and 101,794 for the loss in respect of the Spanish property [9]. In June 2010 Mr Durkins appeal against the sheriffs assessment of damages was refused by the First Division of the Inner House of the Court of Session and HFC successfully cross appealed the findings that section 75 allowed him to rescind the credit agreement and that it had breached its duty of care. The First Division also held that the evidence did not entitle the sheriff to find that a breach of duty by HFC had caused the alleged interest charges and Spanish property losses [10 11]. Lord Hodge delivers the unanimous judgment of the Court, allowing Mr Durkins appeal. Lord Hodge finds that Mr Durkin was entitled to rescind the credit agreement and validly did so by giving notice to HFC in about February 1999 [27]. He sets out the legal framework, explaining that the agreement was a regulated consumer credit agreement and a debtor creditor supplier agreement under the 1974 Act [13 17]. The key provision is section 75(1), which provides that if the debtor under a debtor creditor supplier agreement has, in relation to a transaction financed by the agreement, any claim against the supplier in respect of a misrepresentation or breach of contract, he shall have a like claim against the creditor, who, with the supplier, shall accordingly be jointly and severally liable to the debtor [18]. Lord Hodge explains that the purpose of the restricted use credit agreement is to finance a transaction between the consumer and the supplier. Where, as here, the contract is tied to a particular transaction, it has no other purpose [22 23]. The rescission of the supply agreement excuses the innocent party from further performance of any obligations he has under it [24]. It is inherent in a debtor creditor supplier agreement under the 1974 Act, which is also tied into a specific supply transaction, that if the supply transaction it financed is brought to an end by the suppliers repudiatory breach of contract, the debtor must repay the borrowed funds recovered from the supplier. In order to reflect that reality, the law implies a term into such a credit agreement that it is conditional upon the survival of the supply agreement. The debtor on rejecting the goods and thereby rescinding the supply agreement for breach of contract may also rescind the credit agreement by invoking this condition [26]. Knowing of Mr Durkins assertion that the credit agreement had been rescinded, HFC was under a delictual duty to investigate that assertion in order reasonably to satisfy itself that the credit agreement remained enforceable before reporting to the credit reference agencies that he was in default. HFC made no such enquiries, accepting without question DSGs position that Mr Durkin had not been entitled to rescind the contract of sale [29 33]. HFC did not contest the award of 8,000 for damage to credit if breach of duty were established. However, the Supreme Court rejects Mr Durkins attempt to restore the sheriffs award of damages for the extra interest he paid and for the loss of the capital gain on the Spanish property. Appeals like the present may only be made on matters of law, meaning the Supreme Court cannot go behind the First Divisions findings of fact on these alleged heads of loss [36 39].
B is an Algerian national whose true identity has not been revealed. He was sentenced to four months imprisonment by the Special Immigration Appeals Commission (SIAC) on 26 November 2010 for contempt of court. That sentence was imposed because of what was found to be Bs deliberate refusal to obey an order of SIAC on 19 July 2007. This had required B to disclose his true identity, to give certain particulars and to provide a DNA sample. B had provided the sample but had not revealed his identity. B appealed the order committing him for contempt. He argued that the sentence of imprisonment gave rise to breaches of articles 3 and 8 of the European Convention on Human Rights (ECHR). SIAC had found that B was unlikely to relapse into paranoid psychosis if committed to prison. He had suffered from that condition previously and there was medical evidence that, if imprisoned, he was likely to react by refusing medication and consequently reverting to a psychotic state. B argued that SIAC had failed to give reasons for finding that B would continue to take his medication if imprisoned. He also argued that the sentence of four months was excessive. The Court of Appeal held that SIAC had erred in rejecting the evidence of two psychiatrists that B would refuse to take his medication and that, in consequence, the onset of a psychotic state was likely. A majority of the Court of Appeal (Laws LJ and Longmore LJ) held that, notwithstanding SIACs error, the appeal should be dismissed. They rejected arguments on articles 3 and 8, finding that there would be no breach of article 3 as arrangements would be in place for Bs treatment in hospital if he were to suffer a relapse. The majority was also of the view that the sentence imposed was not excessive. Etherton LJ agreed with the majority that SIAC had erred but was of the view that the case should be remitted to SIAC for reconsideration. Permission to appeal was granted by the Supreme Court on two certified questions: 1) Whether the Court of Appeal is correct that it should adopt the approach of the Court of Appeal (Criminal Division) and only allow an appeal where a sentence is manifestly excessive or whether section 13 of the Administration of Justice Act 1960 gives it a broader discretion that enables it to remit a case where a first instance judgment regarding sentence was flawed and/or procedurally unfair? 2) Whether the Court of Appeal must remit a case where a first instance judgment regarding sentence imposed in a contempt case was flawed and/or procedurally unfair unless it concludes that the court below would have reached the same conclusion even if it had not fallen into error? The Supreme Court unanimously dismisses the appeal. Lord Kerr gives the judgment of the court. The affirmation of the original sentence does not necessarily entail an endorsement of the reasons for which the decision was made. Where it has been determined that the basis for the original sentence of imprisonment is wrong, an assessment must indeed be carried out afresh [11]. It is not essential that this be done by the first instance court. Where an appellate court is in possession of all the relevant facts, the proper course is to determine what the sentence for contempt should be based on the true facts. Where a fresh investigation into the facts is required this should be undertaken by the first instance court. This was not such a case, however [12]. Committal is appropriate where it can reasonably be expected to induce the subject to comply with the order and/or for the purposes of punishment. It is unlikely that the fact the person subject to committal already has substantial restrictions on his liberty (the appellant is subject to stringent SIAC bail conditions) will be material where the court thinks imprisonment will induce compliance with the order. Such restrictions are also unlikely to be of much relevance where the intention of the court is to punish. [14]. There was nothing in the judgments of the Court of Appeal remotely suggestive of the view that sending the appellant to prison would bring about a change of heart on his part. The judgments make it clear that the object was to punish the contempt, not to induce compliance with the order. [16 19]. The Court of Appeal clearly dealt with the case by carrying out a fresh assessment. Its conclusions were premised on a different basis from that of SIAC in that the court had accepted that there was a real risk that B would relapse into paranoid psychosis. [20]. In this case, the sentence imposed by SIAC was not determined on the basis that it had concluded imprisonment was appropriate. It was not influenced by a consideration that B would not relapse into paranoid psychosis. It was chosen to reflect the seriousness of the contempt. It was therefore not inappropriate for the Court of Appeal to consider whether the sentence imposed was manifestly excessive. There was nothing untoward about the Court of Appeal testing its decision against the sentence SIAC had chosen [23 24] In answer to the second certified question, an appellate court need only remit a case where a first instance judgment regarding sentence imposed in a contempt case was flawed and/or procedurally unfair if it considers that a fresh investigation of new facts is required and it is necessary or desirable that this be undertaken by the first instance court [24].
This case raises a fundamental dilemma over the use of land. On the one side, there is a property company which seeks to ensure that 13 new affordable houses do not go to waste. On the other, there is a charitable childrens trust which seeks to ensure that terminally ill children in a hospice can enjoy, in privacy, the use of the hospice grounds without being overlooked, or otherwise detrimentally affected, by the new houses. The legal issues concern restrictive covenants over land and the procedure, under section 84 of the Law of Property Act 1925 (the 1925 Act), by which an application may be made to a tribunal for the discharge of a restrictive covenant. It is the first time that the highest court (whether the House of Lords or the Supreme Court) has been required to decide an appeal on section 84. In July 1972 a farmer sold part of his land (the application land) to a company (SSPC) that already owned the land next door (the unencumbered land). The application land and the unencumbered land together form a rectangular plot (the Exchange House site). As part of the sale, SSPC covenanted that at all times thereafter: (i) no building structure would be built on the application land; and (ii) the application land would only be used for car parking (the restrictive covenants). The farmers son, Mr Barty Smith, later inherited the land adjacent to the Exchange House site. In 2012 he made a gift of part of this land (the hospice land) to the Alexander Devine Childrens Cancer Trust (the Trust) for the construction of a childrens hospice. Soon afterwards, and with knowledge of the restrictive covenants, Millgate Developments Ltd (Millgate) acquired the Exchange House site. In July 2013 Millgate applied for planning permission to build 23 affordable houses on the site, in line with its affordable housing planning obligations. Thirteen of these houses were to be built on the application land, in breach of the restrictive covenants. Some of them would overlook the hospices planned gardens and wheelchair walk. Planning permission was granted in March 2014 and Millgate began construction in July 2014. In September 2014 Mr Barty Smith wrote to Millgate objecting to them building on the application land. Millgate continued regardless and in May 2015 agreed to sell the development at the Exchange House site to Housing Solutions Ltd (Housing Solutions). In July 2015, after completing the development, Millgate applied to the Upper Tribunal (the UT) seeking modification of the restrictive covenants, pursuant to section 84 of the 1925 Act. Mr Barty Smith and the Trust objected to this application. Shortly afterwards, in September 2015, construction of the hospice began. On 18 November 2016 the UT allowed Millgates application to modify the restrictive covenants, on the condition that it paid 150,000 to the Trust as compensation. On 28 November 2018 the Court of Appeal overturned the UTs decision. Housing Solutions now appeals to the Supreme Court. The Supreme Court unanimously dismisses the appeal, though for different reasons to those given by the Court of Appeal. Lord Burrows writes the judgment. The application to modify the restrictive covenants is refused. Section 84 of the 1925 Act, as amended, confers upon the UT the power to discharge or modify restrictive covenants on five grounds. The exercise of this power has two stages. At least one of the grounds must be satisfied (the jurisdictional stage) before the UT can then decide whether to exercise its discretion to discharge or modify the restrictive covenants (the discretionary stage). The ground relevant to this appeal is whether the restrictive covenants, by impeding a reasonable user of land, are contrary to the public interest: sections 84(1)(aa) and 84(1A)(b) [31 33]. The first issue is whether Millgates deliberate and cynical breach of the restrictive covenants is relevant at the jurisdictional stage [41]. The Court of Appeal found that it was [47]. The Supreme Court finds that it is not. The contrary to the public interest ground requires a narrow interpretation. Its focus is on the impeding of a reasonable user of the land and whether that impediment, by continuation of the restrictive covenant, is contrary to the public interest. The question is not the wider one of whether in all the circumstances it would be contrary to the public interest to maintain the restrictive covenant [42]. This narrow interpretation requires weighing the public interest in 13 affordable housing units not going to waste against the public interest in the hospice providing a sanctuary for children dying of cancer. [43]. The good or bad conduct of the applicant is irrelevant at the jurisdictional stage. It tells us nothing about the merits of what the land in question is being or will be used for [44]. This narrow interpretation is also in line with the other four grounds under section 84, accords with the purpose of section 84, and reflects the fact that the applicants conduct can still be considered at the discretionary stage [45]. The second issue is whether the UT failed properly to consider, at the discretionary stage, Millgates cynical conduct. The Court of Appeal found that it did [54]. The Supreme Court agrees, but for different reasons [53]. It is only appropriate for an appellate court to interfere in a discretionary decision of a specialist tribunal if that tribunal has made an error of law [51]. In this case, however, even though the UT took into account Millgates conduct, it did make an error of law [53]. The UT failed to consider two relevant factors at the discretionary stage: (i) Millgate could have built on the unencumbered land, not the application land; and (ii) Millgate would have been unlikely to satisfy the contrary to the public interest ground had it applied to modify the restrictive covenants prior to building on the application land. Millgate could not be rewarded for presenting the UT with a fait accompli [57 62]. This is sufficient to dismiss the appeal. But, having heard full submissions on two further issues, the Court considers them briefly [63]. First, the UT did not rely on Lord Sumptions comments in Coventry v Lawrence [2014] UKSC 13 and so any dispute about whether or not it had been correct to do so does not arise [64 66]. Second, the UT correctly considered at both stages the fact that Millgate had built on the application land in order to fulfil its affordable housing planning obligations [70 73]. The Court therefore upholds the Court of Appeals decision, but for different reasons [74]. The UTs decision is re made and the application to modify the restrictive covenants refused [77].
The issue in this appeal is whether the court should exercise its discretion to strike out the equal pay claims of the respondents, which have been brought in the High Court, on the ground that they could more conveniently be disposed of in an employment tribunal, notwithstanding the fact that the claims there would be time barred. The respondents are former employees of the appellant council (Birmingham), 170 of them women and 4 men. They left their employment on various dates between 2004 and 2008. They allege that Birmingham was in breach of the equality clause inserted into their contracts of employment by section 1(1) of the Equal Pay Act 1970 (the Act), as substituted by section 8(1) of the Sex Discrimination Act 1975, by failing to provide certain benefits and other payments which were payable to workers of the opposite sex employed on work rated as equivalent. The respondents could have brought their claims in the employment tribunal, provided that they did so within the time limit applicable to them of up to six months after leaving their employment. They did not do so, however, and instead issued the claims later in the High Court, for which the time limit was six years from the date their cause of action accrued. Birmingham asked the High Court to exercise the discretion provided by s 2(3) of the Act (as amended) to strike out the claims on the ground that they could more conveniently be disposed of separately by an employment tribunal. Birminghams application was dismissed by the High Court. Its appeal to the Court of Appeal was also dismissed. The Supreme Court by a majority (Lord Sumption and Lord Carnwath dissenting) dismisses the appeal. The judgment of the majority is given by Lord Wilson; the judgment of the minority by Lord Sumption. Birmingham contended that, although the High Court did have concurrent jurisdiction under the Act to determine the respondents claims, those claims should have been presented to the employment tribunal. It invited the court to rule that, except where respondents could provide a reasonable explanation for their failure to do so, their claims should be struck out. It argued that there would be no purpose in providing a strict time limit for the presentation of claims to the tribunal under the Act, if those who failed to comply with it could have their claims heard elsewhere [11 13]. In reviewing the history of s 2 of the Act since its enactment, Lord Wilson observed that it was a striking feature of the six month limitation period set by the Act for claims in the employment tribunal that Parliament had never made it extendable. This suggested that Parliament recognised the availability of an alternative claim in court [20]. The statutory objective of s 2(3) was the distribution of judicial business for resolution in the forum more fitted for it. In most cases it would be more convenient for an employment tribunal to dispose of a claim in respect of the operation of an equality clause, provided that it could still be brought there, rather than for the court to do so. The reasons for the failure of a claimant to bring the claim in the tribunal were not, however, relevant in any way to the notion of convenience [26], nor was a multi factorial inquiry into the interests of justice required [27]. Such claims, barring an abuse of process, could never be more conveniently disposed of by the tribunal if they would there be dismissed for being out of time [29]. Parliament might wish to consider introducing a relaxation of the usual limitation period for such cases in order to allow their convenient disposal in the tribunal in future [31]. In these circumstances there was no need to consider whether the procedural rules might infringe the EU principle of equivalence, by which the rules for proceedings in respect of rights afforded to individuals through the direct effect of Community law should not be less favourable than those governing similar domestic actions. This was a point linked to the proper exercise of the discretion under s 2(3) and would have been unlikely to succeed in this case [32 33]. Lord Sumption, dissenting, considered that allowing the claims to proceed in court frustrated the policy underlying the provisions of the Act relating to limitation [36]. It was difficult to resolve the construction of s 2(3) by reference to the mere language of the Act and therefore important to examine Parliaments underlying purpose in conferring jurisdiction on employment tribunals over equal treatment claims and providing special periods of limitation to apply to such claims in those tribunals [39]. There were substantial advantages for both the parties and for the broader interests of justice in having claims heard in employment tribunals [40]. Limitation was a particularly important defence for employers facing equal treatment claims [41], and this point more plausibly explained the absence of any provision to defer the running of time [44]. Lord Sumption would have held that convenience under s 2(3) went further than the narrow question of the more efficient distribution of judicial business. The fact that a claim would be time barred in the employment tribunal was a highly relevant but not conclusive factor [47].
This appeal concerns the meaning of the words rights of custody in article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (the Convention), and in the Brussels II Revised Regulation (EC) No 2201/2003 (the Regulation) which complements and takes precedence over the Convention between most member states of the European Union. A child is wrongfully removed or retained in a country under the Convention if such removal or retention is in breach of rights of custody. The issue is whether the rights of custody must already be legally recognised and enforceable, or include informal rights (termed inchoate rights), the existence of which would have been legally recognised had the question arisen before the removal or retention in question. The proceedings concern a boy (K) born in Lithuania in March 2005. From the time of his birth until 2012 he lived with and was cared for by his maternal grandparents. His father separated from his mother before he was born and has played no part in his life. His mother moved to Northern Ireland without K in May 2006 and has lived there ever since. A month after Ks birth she authorised her mother to seek medical assistance for K and, before she left for Northern Ireland, executed a notarised consent for her mother to deal with all institutions in relation to K on her behalf. In 2007 a court order was made in Lithuania putting K under the temporary care of his grandmother. This order terminated when Ks mother returned in February 2012 seeking to take K into her own care. Ks mother also applied to withdraw the notarised consents. Meetings were held at the Childrens Rights Division of the local authority where orders were made for her to have weekly contact with K. She was advised that legal proceedings against her mother to obtain custody of K would be costly and protracted and decided instead to seize K forcibly in the street while he was walking home from school with his grandmother on 12 March 2012, and to travel immediately back to Northern Ireland with him by car and ferry. The grandparents were told by the Lithuanian authorities that they had no right to demand the return of K. However, in February 2013 they issued an originating summons in Northern Ireland seeking a declaration that K was being wrongfully retained in breach of their rights of custody. Maguire J refused their application, and their appeal against his decision was dismissed by the Northern Ireland Court of Appeal. The Supreme Court by a majority (Lord Wilson dissenting) allows the appeal, finding that the grandmother did enjoy rights of custody such that Ks removal from Lithuania was wrongful. It orders that K should be returned to Lithuania forthwith. If Ks mother wishes to apply for permission to argue at this very late stage that any of the exceptions to the courts obligation to return K found in article 13 of the Convention apply, this order will be stayed if she makes her application within 21 days. Lady Hale gives the only judgment of the majority. Lord Wilson gives a dissenting judgment. The courts of states parties to the Convention have on several occasions dealt with applications based on inchoate rights of custody [23 42]. In England and Wales such rights have been recognised where the person with legal rights of custody had abandoned the child or delegated his primary care to others [44], but other countries have taken a less expansive view. The Convention is not concerned with the merits of custody rights but it will only characterise a removal of a child as wrongful if it interferes with a right of custody which gives legal content to the situation altered by the removal. Thus it is not enough that Ks removal was a classic example of the sort of conduct which the Convention was designed to prevent and to remedy, given the harmful effects on K of wresting him from the person he regarded as his mother and taking him without notice to a country where he knew no one and did not speak the language [50 51]. The rights relied on by Ks grandparents must amount to rights of custody for the purposes of the Convention. The majority considered that the English courts should continue to recognise inchoate rights as rights of custody under the Convention and the Regulation, provided that the important distinction between rights of custody and rights of access was maintained, and provided that (a) the person asserting the rights was undertaking the responsibilities and enjoying the powers entailed in the primary care of the child; (b) they were not sharing them with the person with a legally recognised right to determine where the child should live and how he should be brought up; (c) that person had abandoned the child or delegated his primary care to them; (d) there was some form of legal or official recognition of their position in the country of habitual residence (to distinguish those whose care of the child is lawful and those whose care is not); and (e) there is every reason to believe that, were they to seek the protection of the courts of that country, the status quo would be preserved for the time being while the long term future of the child could be determined in those courts in accordance with his best interests [59]. These conditions applied to the situation of Ks grandparents. The Childrens Rights Division was supervising the situation on the basis that K remained living with his grandparents while having contact with his mother. Taking K out of the country without his grandmothers consent was in breach of her rights of custody [61 62]. It followed that the court was bound under the Convention to make an order to return K to Lithuania forthwith. It may be that the grandparents would be content with legally enforceable contact arrangements and the mother now has every incentive to agree to these. If the mother were to seek permission at this late stage to raise one of the exceptions in article 13 to the courts obligation to order the return of the child within 21 days, the order would be stayed until the hearing on the first available date in the High Court to determine whether such permission should be granted to her [66]. Lord Wilson would have dismissed the appeal. In his view the rights of custody enjoyed by Ks grandmother were terminated on the mothers return [71]. Even if the courts in Lithuania might have maintained the status quo while Ks future was decided, this did not amount to recognition of rights of custody in the grandparents [72]. The Convention application should therefore have been dismissed. As a result, a welfare inquiry into Ks interests could then have been conducted under the Children (Northern Ireland) Order 1995, in which his grandparents might have been granted an order for contact or even residence [84].
The Counsel General for Wales (the Applicant) is, by section 99(1) of the Government of Wales Act 2006, empowered to refer the question whether a proposed Act of the Welsh Assembly is within its devolved legislative competence to the Supreme Court for decision. In the present case, the Applicant referred to the Supreme Court the question whether the Welsh Assembly has the legislative competence to enact the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill [1]. The Bill has two provisions of particular importance. Section 2 makes persons by whom or on whose behalf compensation payments are made to victims of asbestos related diseases (compensators) liable to Welsh Ministers for the cost of NHS services provided to such victims. Section 14 extended the scope of the compensators liability insurance policies to cover the sums which they would be required to pay under section 2 [2] [8]. In determining this reference, the Supreme Court therefore has to decide two issues: (1) Whether the Bill comes within the legislative competence of the Welsh Assembly concerning the organisation and funding of [the] national health service under the Government of Wales Act 2006 (GOWA 2006) section 108(4) (5) and paragraph 9 of Part 1 of Schedule 7; and (2) Whether the Bill is nonetheless outside the legislative competence of the Welsh Assembly by virtue of section 108(6) of the GOWA 2006, on the grounds that it was incompatible with the rights of compensators and insurers under article 1 of Protocol 1 of the European Convention on Human Rights to the peaceful enjoyment of their possessions (A1P1 rights) [9]. The Supreme Court unanimously finds that the Welsh Assembly lacks legislative competence to enact the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill in its present form. Lord Mance (with whom Lords Neuberger and Hodge agree) gives the lead judgment and holds that the Bill is: (1) Outside the legislative competence of the Welsh Assembly concerning the organisation and funding of [the] national health service [34]; and (2) Incompatible with the A1P1 rights of compensators and insurers to the peaceful enjoyment of their possessions [65] [69]. Lord Thomas (with whom Lady Hale agrees) concurs in the result set out in the judgment of Lord Mance for narrower reasons [71]. The reasoning of the majority in the lead judgment is as follows: (1) The critical phrase, in determining the legislative competency of the Welsh Assembly to enact the Bill, is Organisation of funding of the National Health Service in paragraph 9 of Part 1 of Schedule 7 to the GOWA 2006 [13]. It is common ground that Welsh Ministers do not have general fiscal powers [17] and even assuming (without deciding) that the Welsh Assembly has competence to levy charges for Welsh NHS services, the Bill is not sufficiently related to the organisation of funding of the National Health Service under section 108(4) of the GOWA 2006 to come within that competence. The charges provided for by the Bill are to be imposed on compensators and insurers rather than patients and lack any direct or close connection with the provision of Welsh NHS services. The Bill seeks to impose what are in effect new tortious or statutory duties on third parties to pay for the relevant Welsh NHS treatment [24] and [27]. (2) The Bill also interferes with the A1P1 rights of compensators and insurers to the peaceful enjoyment of their possessions. The new financial liabilities of compensators and insurers would arise from asbestos exposure and liability insurance policies which long pre dated the Bill [36] and [41]. The retrospective effect of the Bill requires special justification, which is absent in the present case [53], [57] and [65] [69]. Lord Thomas and Lady Hale agree that the Bill is beyond the competence of the Welsh Assembly, but on narrower grounds. Section 2 of the Bill is within the competence of the Welsh Assembly, because the organisation of funding of the National Health Service encompasses a general power to raise funds for the Welsh NHS through the imposition of charges on patients, who could recover those charges from an employer who has exposed him to asbestos. The employer could then claim indemnification from its liability insurer [83] and [96]. It is therefore open to the Welsh Assembly to impose charges directly on the employer/compensator [100] [102]. The interference of the Bill with the A1P1 rights of employers/compensators is proportionate to its economic and social purpose of funding Welsh NHS services for asbestos victims [108], [124] and [128]. However, section 14 of the Bill is outside the competence of the Welsh Assembly because its effect is retrospectively to extend or override the provisions of existing liability insurance policies, contrary to section 108(5) of the GOWA 2006 and the A1P1 rights of insurers [133] and [138] [140].
The Supreme Court unanimously allows the appeal, holding that the reasonable tolerability test applied by the Court of Appeal is contrary to the Convention and should not be followed in the future. HJ and HTs cases are remitted for reconsideration in light of the detailed guidance provided by the Supreme Court. There is no dispute that homosexuals are protected by the Convention, membership of the relevant social group being defined by the immutable characteristic of its members sexuality [paras [6] and [10] per Lord Hope and para [42] per Lord Rodger]. To compel a homosexual person to pretend that their sexuality does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny him his fundamental right to be who he is. Homosexuals are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self expression in matters that affect their sexuality, as people who are straight [paras [11] and [14] per Lord Hope and para [78] per Lord Rodger]. The Convention confers the right to asylum in order to prevent an individual suffering persecution, which has been interpreted to mean treatment such as death, torture or imprisonment. Persecution must be either sponsored or condoned by the home country in order to implicate the Convention [paras [12] and [13] per Lord Hope]. Simple discriminatory treatment on grounds of sexual orientation does not give rise to protection under the Convention. Nor does the risk of family or societal disapproval, even trenchantly expressed [paras [13], [15] and [22] per Lord Hope and para [61] per Lord Rodger]. One of the fundamental purposes of the Convention was to counteract discrimination and the Convention does not permit, or indeed envisage, applicants being returned to their home country on condition that they take steps to avoid offending their persecutors. Persecution does not cease to be persecution for the purposes of the Convention because those persecuted can eliminate the harm by taking avoiding action [paras [14] and [26] per Lord Hope and paras [52] [53] and [65] per Lord Rodger]. The reasonable tolerability test applied by the Court of Appeal must accordingly be rejected [para [29] per Lord Hope and paras [50], [75] and [81] per Lord Rodger]. There may be cases where the fear of persecution is not the only reason that an applicant would hide his sexual orientation, for instance, he may also be concerned about the adverse reaction of family, friends or colleagues. In such cases, the applicant will be entitled to protection if the fear of persecution can be said to be a material reason for the concealment [paras [62], [67] and [82] per Lord Rodger]. Lord Rodger (with whom Lords Walker and Collins and Sir John Dyson SCJ expressly agreed), at para [82] and Lord Hope, at para [35], provided detailed guidance in respect of the test to be applied by the lower tribunals and courts in determining claims for asylum protection based on sexual orientation.
Farstad Supply A/S owned a vessel called the Far Service. On 4 February 1994, Aberdeen Service Company (North Sea) Ltd (Asco UK Ltd) chartered the Far Service from Farstad. Asco UK Ltd is a wholly owned subsidiary of ASCO plc, a major oil and gas logistics company registered in Scotland. They wished to use the Far Service to supply and service offshore installations. Enviroco Ltd cleans ships on an industrial scale among other things and is also registered in Scotland. Until 1999 it too, like Asco UK Ltd, was a wholly owned subsidiary of ASCO plc. In November 1999, in connection with a joint venture with Stoneyhill Waste Management Ltd, Envirocos shares were converted into equal numbers of A and B ordinary shares. ASCO plc held the A Shares whereas Stoneyhill held the B Shares. By their 1994 contract, known as a charterparty, both Farstad and Asco UK Ltd agreed to indemnify and hold each other harmless in relation to certain liabilities. Importantly, Farstad further agreed to indemnify Asco UK Ltds Affiliates, who were defined by reference to the meaning of subsidiary in section 736 of the Companies Act 1985, including any amendments. On 7 July 2002, Enviroco was employed to clean the oil tanks of the Far Service. While the tanks were being cleaned, a fire occurred causing the death of one of Envirocos employees and substantial damage to the Far Service. Farstad, the owner of the Far Service, brought a claim in Scotland against Enviroco for losses it allegedly suffered as a consequence of the fire. Farstad claimed approximately 2.7 million. Enviroco sought to rely on the indemnity clauses in the 1994 charterparty on the basis that it was an Affiliate of Asco UK Ltd because each of them was a subsidiary of ASCO plc. Prior to the fire, ASCO plc had entered into a Deed of Pledge with the Bank of Scotland in order to secure some of its obligations. By a Scottish share pledge, ASCO plc gave the Bank of Scotland security over the A ordinary shares held by it in Enviroco by re registering the shares in the name of the banks nominee company. Whether or not Enviroco could rely on the indemnity depended on whether the fact that the shares in Enviroco were registered in the nominees name meant that Enviroco was not a subsidiary of ASCO plc at the time of the fire and therefore not an Affiliate for the purposes of the 1994 charterparty. Whether or not Enviroco was a subsidiary of ASCO plc in turn depended on whether ASCO plc was a member of Enviroco at the relevant time. The Court of Appeal decided that because the shares were registered in the name of the banks nominee company at the time of the fire, ASCO plc was not a member of Enviroco. Thus Enviroco was not a subsidiary of ASCO plc so it could not rely upon the indemnity clauses. The Supreme Court unanimously dismisses Envirocos appeal and holds that Enviroco was not a subsidiary because ASCO plc was not a member of Enviroco. Lord Collins gives the main judgment. Lord Hope and Lord Rodger give shorter judgments elucidating the position in Scots law. The legislation makes clear that a member of a company is the person on the register. Where it is necessary to apply the legislation to persons who are not on the register, special provisions are made [35] [39]. This is an unusual case. ASCO plc turned Enviroco into a joint venture company and then charged the shares to a Scottish bank by following the necessary Scots law procedure. However, to find in Envirocos favour would have required the Court to engage in an impermissible form of judicial legislation [49].
By this appeal Mr and Mrs Hancock, the appellants, seek to show that the redemption of the loan notes, issued to them in connection with the sale of their shares in their company, Blubeckers Ltd, fell outside the charge to capital gains tax (CGT) by virtue of the exemption in section 115 of the Taxation of Chargeable Gains Act 1992 (TCGA) for disposals of qualifying corporate bonds (QCBs). QCBs are essentially sterling only bonds. The appellants structured the disposal of their Blubeckers Ltd shares in three stages. (1) Stage 1 was the exchange of Blubeckers Ltd shares for notes, which, being convertible into foreign currency, were not QCBs. (2) At Stage 2, the terms of some of those notes were varied so that they became QCBs. (3) At Stage 3, both sets of notes (QCBs and non QCBs) were, together and without distinction, converted into one series of secured discounted loan notes (SLNs), which were QCBs. The SLNs were subsequently redeemed for cash. It is said to be the result of the completion of Stages 2 and 3 that the appellants are not chargeable to CGT. The noteworthy feature for present purposes of the redemption process was that, following the reorganisation, some of the loan notes issued as consideration were converted into QCBs. TCGA confers rollover relief on the disposal of securities as part of a reorganisation; this means it brings securities issued as consideration into charge for CGT purposes but then defers the tax until their subsequent realisation. This is less favourable to the taxpayer than the exemption in TCGA, section 115. The roll over provisions constitute a carve out from the exemption in TCGA, section 115. They extend to certain conversions involving QCBs. The appellants seek to fall outside that carve out (and thus within the exemption in TCGA, section 115). The appellants appealed to the First tier Tribunal regarding the chargeable gain arising on the redemption of the SLNs. The First tier Tribunal held that the conversions were to be treated as a single conversion for the purposes of section 116(1) of the TCGA such that the transaction avoided CGT. HMRC appealed to the Upper Tribunal and the Upper Tribunal allowed HMRCs appeal holding that the conversion of securities at the third stage comprised separate transactions in relation to each share converted. As the First tier Tribunal had pointed out, the relief under section 116 for QCBs had been intended to promote the market in sterling bonds and so the interpretation favoured by the appellants would go well beyond that objective. The appellants appealed to the Court of Appeal and the Court of Appeal dismissed their appeal. The Court of Appeal considered that, although the wording of the carve out could be read literally in favour of the taxpayers, that result would be contrary to Parliaments intention. The issue before the Supreme Court is whether section 116 of the TCGA applies where by a single transaction, both non QCBs (which are within the charge to capital gains tax on redemption) and QCBs (which fall outside the charge to capital gains tax on redemption) are converted into QCBs. The Supreme Court unanimously dismisses the appeal. Lady Arden, with whom the rest of the Court agrees, delivers the judgment. It was common ground that, if the conversion at Stage 3 involved separate conversions of the QCBs and the non QCBs, the appeal must fail. The question whether there was a single conversion, or two separate conversions, must be a question of applying the provisions of TCGA to the facts. The answer is not mandated in the appellants favour by the fact that they utilised a single transaction [19]. Plainly, section 116(1)(b) contemplates the possibility of a single transaction which involves a pre conversion holding of both QCBs and non QCBs, and this, coupled with the fact that the Court of Appeals interpretation renders the words or include appearing in section 116(1)(b) otiose are powerful arguments in support of the appellants construction [20]. However, the appellants interpretation would be inexplicable in terms of the policy expressed in these provisions, which is to enable all relevant reorganisations to benefit from the same rollover relief. Taxpayers could avoid those provisions with extreme ease if the appellants are right [21]. By looking to the fiscal policy behind the scheme, the Court of Appeal applied a purposive approach [22]. The Court of Appeal did not give any meaning to the words or include in section 116(1)(b), but this is appropriate because in section 132(3), as the Upper Tribunal pointed out, it is clear that the intention of Parliament was that each security converted into a QCB should be viewed as a separate conversion. Moreover, it is not an objection that section 127 contemplates a single asset because Parliament has required sections 127 to 131 to be applied with necessary adaptations. In those circumstances the clear words principle is observed in the present case [23]. There are cases where to achieve Parliaments obvious intention a strained interpretation may need to be taken in place of one which would be contrary to the clear intention of Parliament. This principle can apply even to a tax statute. However, the circumstances in which such an approach can be applied must be limited, for example, to those where there is not simply some inconsistency with evident Parliamentary intention but some clear contradiction with it. Moreover, the intention of Parliament must be clearly found on the wording of the legislation [24]. Nothing in Lady Ardens judgment detracts from that principle, but it is unnecessary to consider its application to this case because the construction of the relevant provisions is clear without resort to it [26]. Lady Arden concluded that, in summary, on the true interpretation of TCGA section 116(1)(b), the potential gain within the non QCBs was frozen on conversion and did not (to use Lewison LJs words) disappear in a puff of smoke [27].
On 3 May 2006, the vessel Alexandros T sank and became a total loss 300 miles south of Port Elizabeth with considerable loss of life. Her owners were Starlight Shipping Company (Starlight). Starlight made a claim against their insurers, who denied liability on the basis that the vessel was unseaworthy with the privity of Starlight. In response, Starlight made a number of serious allegations against their insurers including allegations of misconduct involving tampering with and bribing of witnesses. On 15 August 2006, Starlight issued proceedings in the Commercial Court against various insurers (the 2006 proceedings). One group of insurers was described as the Company Market Insurers (CMI) and the other group was described as the Lloyds Market Insurers (LMI). Before the hearing, the 2006 proceedings were settled between Starlight and the insurers and the proceedings were stayed by way of a Tomlin Order. In April 2011, nine sets of Greek proceedings, in materially identical form, were issued by Starlight although they were expressed as torts actionable in Greece. The insurers sought to enforce the earlier settlement agreements. Starlight applied for a stay of these proceedings, firstly pursuant to Article 28 then Article 27 of Council Regulation (EC) No 44/2001 (the Regulation) The judge refused to grant a stay under Article 28 and gave summary judgment to the insurers. The Court of Appeal held that it was bound to stay the 2006 proceedings under Article 27, which provides for a mandatory stay, and it was not therefore necessary to reach a final determination of the position under Article 28. Before the Supreme Court, the insurers challenge the correctness of the Court of Appeals conclusion under Article 27 and submit that the judge was correct to refuse a stay under Article 28. Starlight cross appeal on the Article 28 point. Subject to the possibility of a reference to the CJEU on some limited questions, the Supreme Court unanimously allows the CMIs and LMIs appeal. Lord Clarke gives the lead judgment, with which Lord Sumption and Lord Hughes agree. Lord Neuberger agrees adding a short judgment of his own. Lord Mance agrees with the result. Article 27 Article 27 must be construed in its context. The purpose of Article 27 is to prevent the courts of two Member States from giving inconsistent judgments and to preclude, so far as possible, the non recognition of a judgment on the ground that it is irreconcilable with a judgment given by the court of another Member State [23, 27]. In the case of each cause of action relied upon, it is necessary to consider whether the same cause of action is being relied upon in the Greek proceedings. In doing so, the defences advanced in each action must be disregarded [29]. The essential question is whether the claims in England and Greece are mirror images of each other and thus legally irreconcilable [30]. There are three heads of claim in England: indemnity, exclusive jurisdiction and release [32]. None of the causes of action relied upon in the Greek proceedings has identity of cause or identity of object with the CMIs claim for an indemnity. The subject matter of the claims is different. The Greek proceedings are claims in tort (or its Greek equivalent) and the claims in England are claims in contract. As to object, that of the Greek proceedings is to establish a liability under Greek law akin to tort, whereas the object of the CMIs claim is to establish a right to be indemnified in respect of such a liability and to claim damages for breach of the exclusive jurisdiction clauses [34]. The same is true of the CMIs claims in respect of the exclusive jurisdiction clauses in the settlement agreement and/or in the insurance policies [36]. The causes of action based upon an alleged breach of the settlement agreement are not the same causes of action as are advanced in Greece [37]. The same is also true of the claims based on the release provisions in the CMI settlement agreement [40]. The Greek claims are claims in tort and the English proceedings are contractual claims. The factual bases for the two claims are entirely different. Moreover, the object of the two claims is different [41]. The Supreme Court is unanimous that that is the position with regard to the claims for damages for breach of the release provisions in the settlement agreements. However, in so far as the insurers claim declarations, while the majority reaches the same conclusion, Lord Mance reaches a different conclusion on the basis that the claims for declarations in the two jurisdictions are mirror images of each other. The court unanimously decides that, unless the insurers abandon those claims for declarations, the relevant question should be referred to the CJEU for an opinion [59]. In the event, the CMI have now abandoned their claims for declarations based on the release provisions and it is not necessary to refer the question to the CJEU. It follows that the CMIs appeals under Article 27 are allowed. The position of the LMI is essentially the same as in the case of the CMI [55]. If the LMI do the same within the time permitted, their appeals will also be allowed under Article 27. A similar position has been reached in respect of LMIs submission that the appeals under Article 27 should have been rejected by the Court of Appeal as being too late [123]. Article 28 The discretion to stay claims under Article 28 is limited to any court other than the court first seised [74]. On the assumption that the English court is second seised for the purposes of Article 28, the question arises whether the actions should be stayed as a matter of discretion [91]. The circumstances of each case are of particular importance but the aim of Article 28 is to avoid parallel proceedings and conflicting decisions. In a case of doubt it would be appropriate to grant a stay [92]. However, the natural court to consider the issues raised by CMI and LMI is the High Court in England because they raise contractual questions governed by English law and because it is at least arguable that the parties have agreed that they should be decided by the High Court, where the proceedings are more advanced than in Greece [96]. The decision of the judge in refusing a stay under Article 28 is upheld and the cross appeal is dismissed [97, 125].
These appeals concern the question whether customs officers have the power to detain goods which they reasonably suspect may be liable to forfeiture. In Eastenders, customs officers entered Eastenders premises and inspected consignments of alcoholic goods. Eastenders' employees were unable to provide documentary evidence that duty had been paid on the goods. The officers decided to detain the goods pending the outcome of further enquiries. The Commissioners subsequently stated that the goods had been detained under section 139 of the Customs and Excise Management Act 1979, which empowers customs officers to seize or detain "anything liable to forfeiture under the customs and excise Acts." [3 4] Eastenders applied for judicial review of the decision to detain those goods that were subsequently returned when the officers' enquiries proved inconclusive. Mr Justice Sales dismissed the application, holding that, where the Commissioners had reasonable grounds to suspect that goods might be liable to forfeiture, they had the power under section 139(1) to detain them for a reasonable time while they made enquiries. The Court of Appeal reversed that decision, holding that section 139(1) applied only where goods were actually liable to forfeiture. [5 7]. The Commissioners appeal to the Supreme Court. In First Stop, customs officers detained alcoholic goods at First Stop's premises, on suspicion that duty had not been paid, while enquiries were made. Written notices were provided stating that the goods had been detained "pending evidence of duty status (CEMA 1979, section 139)". Most of them were subsequently seized and the remainder returned to First Stop [8]. First Stop successfully applied for judicial review of the decision to detain the goods. Mr Justice Singh held that the detention was unlawful as the reason given for it was the need for investigation. The Court of Appeals judgment in Eastenders meant that goods could not lawfully be detained under section 139(1) for that purpose. However, the Court of Appeal disagreed with his interpretation, and decided that the effect of Eastenders was that if goods were in fact "liable to forfeiture", detention for a reasonable time was lawful under section 139(1) irrespective of the reason given for it [9 12]. Mr Justice Singh also held that the Commissioners were not protected from an order for costs by section 144(2) of the 1979 Act (which applies where officers had reasonable grounds for detaining goods) as the reason they gave for detaining the goods was unlawful. The Court of Appeal held that this was inconsistent with Eastenders. First Stop appeal against both decisions [12]. In a judgment delivered by Lord Sumption and Lord Reed, the court unanimously allows the Commissioners' appeal in Eastenders, dismisses First Stop's first appeal and allows its second appeal. The right to seize or detain property under section 139(1) is dependent on the property actually being liable to forfeiture. This turns on objectively ascertained facts; not on beliefs or suspicions, however reasonable. This is apparent when one looks at section 139(1) in the context of other provisions in the Act. For example, other powers are expressly stated to be exercisable on the basis of suspicion or belief [23], whereas the section 139(1) power is not. However, this interpretation would have troubling implications were there no other power to detain goods. It is essential in practice that customs officers should be able to secure goods where, following an examination, it is necessary to carry out further enquiries investigations that might lead to their seizure. If there were no other power of detention, then detention on the basis of suspicion would be unlawful in all cases where the suspicion turned out to be unfounded, and this would be problematic in terms of compliance with EU law and Convention standards on legal certainty [24]. In neither case however had it been argued that the power to detain could have a source other than section 139(1). But customs officers have long had a statutory power to examine goods in order to determine the duty payable or whether the goods are liable to forfeiture. Prior to the enactment in the Customs and Excise Act 1952 of the power to detain goods liable to forfeiture, the courts interpreted customs officers' statutory powers of examination as including, by necessary implication, an authority to detain goods on reasonable suspicion for such time as was reasonably necessary in order to make enquiries allowing officers to make their determination [26 35]. When enacting the 1952 Act, Parliament did not impliedly abolish that power of detention, which is not conditional upon the goods being liable to forfeiture [37; 52]. In Eastenders, the officers were entitled to detain the goods for a reasonable period in order to complete their enquiries; they were carrying out a lawful inspection of the goods for the purpose of determining whether the appropriate duties had been paid, and had reasonable grounds to suspect that they had not been [49]. In First Stop, the officers' examination was not completed until the necessary enquiries had been made, and the power of examination impliedly included an ancillary power of detention for a reasonable time while these enquiries were undertaken [50 51]. Detention in both cases was therefore lawful. The section 144(2) costs protection did not apply as both judicial review applications ought to have been dismissed. The parties are invited to make submissions on costs on the basis that the court possessed its ordinary costs discretion [52 55].
This appeal concerns the legislation which governs the Construction Industry Scheme (the CIS), which was introduced in order to counter widespread tax evasion by sub contractors in the construction industry. It requires certain contractors to deduct and pay over to Her Majestys Revenue and Customs (HMRC) a proportion of all payments made to the sub contractor in respect of labour under a sub contract. The amount deducted and paid over is, in due course, allowed as a credit against the sub contractors liability to HMRC. However, sub contractors with statutory certificates of gross payment registration are exempt from those requirements. That tends to make any sub contractor holding a certificate a more attractive party for a contractor to deal with. It also improves the sub contractors cash flow by enabling the sub contractor to receive the contract price without deduction. The appellant company (the company) is a family run business of water well engineers, started in 1972. In around 1984 the company registered for gross payment under the CIS. It then underwent regular reviews to determine whether it ought to retain its registration certificate. It first failed a review in July 2009, when its registration was cancelled. The same occurred in June 2010. On both occasions the registration was reinstated by HMRC following an appeal. Between August 2010 and March 2011 the company was late in making PAYE payments on seven occasions. The delays were generally of a few days, but on one occasion of at least 118 days. It is accepted that the company failed to comply with the requirements of the CIS without reasonable excuse. At that time the company had about 25 employees and an annual turnover of about 4.4m, much of it derived from contracts with a small number of major customers. A further review followed. On 30 May 2011 HMRC, acting under section 66(1) of the Finance Act 2004, cancelled the companys registration. In doing so, HMRC took no account of the consequences for the companys business. The companys appealed to the First tier Tribunal (FTT) which accepted the companys evidence that the cancellation, once it took effect, would have had a seriously detrimental impact on the company. The FTT allowed the companys appeal, holding that HMRC had been wrong not to take account of the likely impact on the companys business. However, that decision was overturned by the Upper Tribunal with which the Court of Appeal agreed. The company now appeals to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the judgment, with which Lord Mance, Lord Sumption, Lord Lloyd Jones and Lord Briggs agree. The statutory requirements for registration for gross payment are highly prescriptive. They are contained in the Finance Act 2004. They include a requirement that the applicant for registration complied, within the previous 12 months, with various tax obligations subject to an exception for non compliance with reasonable excuse. Section 66(1) of the Act provides that the Board of Inland Revenue may at any time make a determination cancelling a persons registration for gross payment where certain conditions are satisfied. The word may imports an element of discretion. The dispute is as to the scope of that discretion [5 8]. The company makes two arguments. First, that the discretion under section 66 is unfettered in its terms, which do not exclude consideration of the consequences of cancellation for the company. The company argues that, without any indication to the contrary, the impact on the company must be a relevant consideration [16 17]. Second, the company relies on right to protection of property under Article 1 of the First Protocol to the European Convention on Human Rights (A1/P1). It argues that cancellation clearly involves an interference with the possessions represented by (at least) the sub contractors entitlement to the full contract price or the bundle of rights inherent in registration [18]. A1/P1 provides: Every natural or legal person is entitled to the peaceful enjoyment of his possessions No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. HMRC generally adopt the reasoning of the Court of Appeal and do not accept that cancellation involves an interference with a possession for the purposes of A1/P1. Alternatively, HMRC rely on the wide margin afforded to Member States under the Convention in fiscal matters [19 20]. The Supreme Court holds that the Court of Appeal was correct. Apart from the Convention, the companys first argument, that the discretion under section 66 is unfettered, overlooks the basic principle that any statutory discretion must be exercised consistently with the objects and scope of the statutory scheme. The discretion does not extend to consideration of matters which relate neither to the requirements for registration for gross payment, nor to the objective of securing compliance with those requirements. The scheme is highly prescriptive, setting out narrowly defined conditions for registration in the first place, including a record of tax compliance. The same conditions are brought into the cancellation procedure by section 66. The mere fact that the cancellation power is discretionary rather than mandatory is unsurprising. Some element of flexibility allows for cases where the failure is limited, temporary and poses no practical threat to the objectives of the CIS. It is wholly inconsistent with that tightly drawn scheme for there to be implied a general dispensing power [21 22]. Turning to A1/P1, there is force in the argument of HMRC that, even if the rights conferred by registration amount to possessions, they cannot extend beyond the limits set by the legislation by which they are created. However, it is unnecessary to decide the appeal on that basis, since the Court of Appeal correctly held that any interference with A1/P1 rights was proportionate. Once it is accepted that the statute does not in itself require the consideration of the impact on the individual taxpayer, there is nothing in A1/P1 which would justify the court in reading in such a requirement [23].
This appeal concerns the scope of the exclusion in a marine insurance policy for loss caused by inherent vice in the subject matter insured. The oil rig Cendor MOPU had been laid up in Galveston, Texas. In May 2005, it was purchased by the Respondents for conversion into a mobile offshore production unit for use off the coast of Malaysia. The Respondents obtained insurance from the Appellant for carriage of the oil rig on a towed barge from Texas to Malaysia. The policy covered all risks of loss or damage to the subject matter insured except as provided in Clauses 4 . Clause 4.4 excluded loss, damage or expense caused by inherent vice or nature of the subject matter insured. The oil rig consisted of a platform and three legs extending down to the seabed. The legs were massive tubular structures, made of welded steel and cylindrically shaped, with a diameter of 12 feet and a length of 312 feet. Each weighed 404 tons. The rig was carried on the barge with its legs in place above the platform, so that the legs extended some 300 feet into the air. The tug and barge set off from Galveston in August 2005 and arrived at Saldanha Bay, just north of Cape Town, in October 2005 where some repairs were made to the legs. The voyage then resumed but on the evening of 4 November 2005 one leg broke off and fell into the sea. The following evening the other two legs fell off. The breakages were the result of metal fatigue caused by the motion of the waves. In addition, the impact of a leg breaking wave was required to generate the final fracture. The weather experienced on the voyage was within the range that could reasonably have been contemplated. The Respondents made a claim under the policy for the loss of the three legs. The Appellant rejected the claim and the matter came for trial before the Commercial Court. The Judge held that the proximate cause of the loss was the fact that the legs were not capable of withstanding the normal incidents of the insured voyage, including the weather reasonably to be expected. Therefore the cause was inherent vice within the meaning of Clause 4.4 and the Appellant was not liable. The Court of Appeal reversed the decision, holding that the proximate cause of the loss was an insured peril in the form of the leg breaking wave. The Appellant appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. The Court finds that the cause of the loss was an insured peril rather than inherent vice. The issue before the Supreme Court was whether the proximate cause of the loss was an insured peril, in the form of the stresses put upon the oil rig by the height and direction of the waves encountered on the voyage, or inherent vice in the subject matter insured. The reason for the focus on the proximate cause is to be found in section 55 of the Marine Insurance Act 1906, which provides that an insurer is liable for any loss proximately caused by a peril insured against. The proximate cause is not the cause closest in time to the loss, but that which is proximate in efficiency. The 1906 Act also contains provision regarding inherent vice: section 55(2)(c) provides that an insurer is not liable for inherent vice in the subject matter insured. It was not suggested that the exception in Clause 4.4 for inherent vice bore any different meaning to that in the 1906 Act: [17] [23]. The classic definition of inherent vice is that of Lord Diplock in Soya GmbH Mainz Kommanditgesellschaft v White [1983] 1 Lloyds Rep 122: It means the risk of deterioration of the goods shipped as a result of their natural behaviour in the ordinary course of the contemplated voyage without the intervention of any fortuitous external accident or casualty. The Supreme Court relied and expanded upon that definition. Lord Mance noted that the reference to the ordinary course of the contemplated voyage was not intended to embrace weather conditions foreseeable on such a voyage. Further, there is no apparent limitation in the qualification without the intervention of any fortuitous external accident or casualty. Thus anything that would otherwise count as a fortuitous external accident or casualty will suffice to prevent the loss being attributed to inherent vice: [80]. The Supreme Court also emphasised that the question of the proximate cause is to be answered, as Bingham LJ noted in T M Noten BV v Harding [1990] Lloyds Rep 283, applying the common sense of a business or seafaring man: [19]. Applying these principles, it was not possible to fit the facts of the current case into any normal conception of deterioration of the goods shipped as a result of their natural behaviour in the ordinary course of the contemplated voyage. The loss had many obvious characteristics which one would associate with a fortuitous marine accident or casualty and that was how it should be seen. In particular, the breaking of the legs was neither expected nor contemplated. It only occurred under the influence of a wave of a direction and strength catching the first leg right at the right moment, leading to increased stress on and collapse of the other two legs in turn: [46]; [65]; [84]. The fact that the legs were not capable of withstanding the normal incidents of the insured voyage, in particular the weather reasonably to be expected, did not make inherent vice the proximate cause. If that were the case, the cover would only extend to loss or damage caused by perils of the sea that were exceptional, unforeseen or unforeseeable. That would frustrate the purpose of all risks cargo insurance, which is to provide an indemnity in respect of loss or damage caused by, among other things, all perils of the sea: [35]. The Court therefore held that the proximate cause of the loss was a peril of the sea, for which the insurers were liable, and not inherent vice.
These cases relate to the cap on housing benefit introduced by the Secretary of State under Regulation B13 of the Housing Benefit Regulations 2006 (SI 2006/2013) (Reg B13), often described as the removal of the spare room subsidy or the bedroom tax. The cap is determined according to a number of factors, including whether the number of bedrooms in the home exceeds the number the claimant is entitled to. The number of bedrooms a claimant is entitled to depends on the number of occupants, their ages and sexes and whether any are a couple. A claimant is entitled to an additional bedroom in some specific situations relating to disability need. There is also a statutory scheme for enabling Discretionary Housing Payments (DHPs) to be made to individuals entitled to housing benefit who may require an extra room. As the title indicates, these are discretionary. The claimants in these appeals all live in social sector housing where the number of bedrooms exceeds the number to which they are entitled to under Reg B13. Their housing benefit has been capped accordingly. They are challenging the validity of Reg B13 as it applies to their individual circumstances on the basis that it violates their right to non discrimination under article 14 of the European Convention on Human Rights (ECHR), in conjunction with their right to family life under article 8 and/or property under article 1 of the First Protocol (there is no dispute that housing benefit falls within the scope of these latter articles). They also contend there has been a breach by the Secretary of State of the Public Sector Equality Duty (PSED) under the Equality Act 2010 (the Equality Act), which obliges public authorities to have due regard to the need to eliminate discrimination and advance equality of opportunity between persons who share protected characteristics and those that do not. Mrs Carmichael, Mr Rourke, Mr Drage, JD and Mr Daly (the MA claimants), all either have disabilities or live with family members who have disabilities (see Appendix 1 for details of the claimants factual circumstances). Their cases were heard together in the Court of Appeal which accepted that Reg B13 had a discriminatory effect on some people with disabilities, but held that the discrimination was justified. The MA claimants needs could be met as necessary though the DHP scheme based on individual assessments. The Court also found that there had been no breach of the PSED. The MA claimants challenge these decisions. The Rutherford family and A had their cases heard together in the Court of Appeal (differently constituted). The Rutherfords succeeded in their claim on the ground of disability discrimination. A lives in a sanctuary scheme house (accommodation specially adapted to provide protection for women under severe risk of domestic violence); her claim succeeded on the grounds of sex discrimination. Both A and the Rutherfords Equality Act claims were rejected. The Secretary of State appeals the Court of Appeals decision to allow the Rutherfords and As discrimination claims. A cross appeals the rejection of her Equality Act claim. In respect of the MA claimants discrimination claims, the Supreme Court unanimously allows the appeal of Mrs Carmichael and dismisses the other claimants appeals. The MA claimants appeals under the Equality Act are unanimously dismissed. The Secretary of States appeal in respect of the Rutherford family is unanimously dismissed. The Secretary of States appeal in respect of A is allowed, and As cross appeal is dismissed, by a majority of 5 to 2. Lord Toulson gives the lead judgment. Lady Hale gives a dissenting judgment in relation to A in respect of both the Secretary of States appeal and As cross appeal, with which Lord Carnwath agrees. The normal test in cases involving questions of economic and social policy is whether the discrimination is manifestly without reasonable foundation. The question of how to deal with the impact of Reg B13 on individuals with disabilities is a clear example of a question of economic and social policy; the housing benefit cap scheme is integral to the structure of the welfare benefit scheme. The Court of Appeal was therefore correct to apply this test [28 38]. In respect of the application of the test, the Court of Appeal was correct that the Secretary of States decision to structure the housing benefit cap scheme as he did was reasonable [40 41]. However, some people with disabilities have a transparent medical need for an additional bedroom. Reg B13 recognises this and entitles claimants to an additional bedroom in the case of children (but not adults) who cannot share a bedroom because of their disabilities or adults (but not children) in need of an overnight carer [42]. Mrs Carmichael, is an adult who cannot share a room with her husband due to her disabilities. The Rutherfords require a regular overnight carer for their grandson with severe disabilities. There appears to be no reason to distinguish between adult partners who cannot share a bedroom because of disability and children who cannot do so because of disability; or between adults and children in need of an overnight carer. The decisions in relation to Mrs Carmichael and the Rutherfords were therefore manifestly without reason [46 49]. In relation to the other MA claimants, their need for an additional bedroom is not connected, or not directly connected, to their/their family members disability. Therefore, whilst there may be good reasons for them to receive state benefits to cover the full rent, it is not unreasonable for their claims to be considered on an individual basis under the DHP scheme [51 54]. A, has a strong case for staying in her current house; it has been adapted under the sanctuary scheme and she feels safe where she is [58]. However, there is no automatic correlation between being in a sanctuary scheme and requiring an extra bedroom: the reason that A currently has an additional bedroom is that no two bedroom properties were available when she moved. The Court has considerable sympathy for A as she has strong social and personal reasons for staying, however, these are unrelated to the property size. The fact that people may have strong reasons unrelated to the number of bedrooms, for wanting to stay in their property is taken account of through the DHPs. It therefore does not follow that A has a valid claim for unlawful sex discrimination [59 64]. Although the state has a positive duty to provide effective protection to victims of gender based violence the means by which such protection is provided is not mandated and A has not established that Reg B13 will deprive her of a safe haven [65]. The PSED is a duty on the part of a public authority to follow a form of due process [67]. On the history of events and the evidence, the Secretary of State properly considered the potential impact of the housing benefit cap scheme on individuals with disabilities [68]. Although the Secretary of State did not specifically consider the impact of Reg B13 on those within sanctuary schemes, he did address the question of gender discrimination [69 70]. The MA claimants appeal, and As cross appeal, under the Equality Act, are therefore dismissed [71]. Lady Hale, with whom Lord Carnwath agrees, would have dismissed the Secretary of States appeal in respect of A. The state has a positive obligation to provide effective protection for victims of domestic violence [73]. A failure to do so constitutes discrimination as it has been internationally recognised that gender based violence is a form of discrimination against women [74]. Sanctuary schemes provide such protection [75]. As reduction in housing benefit puts at risk her ability to stay there and therefore constitutes discrimination [76]. DHPs are not good enough to justify this discrimination; it is not acceptable for A to endure the additional difficulties and uncertainties involved in obtaining them [77]. Lady Hale would also have allowed As cross appeal. The PSED was not properly complied with as there was no assessment of the impact of Reg B13 on victims of gender based violence; a disadvantage suffered by women who share a protected characteristic [79 80].
Section 3C of the Immigration Act 1971 extends a persons leave to remain pending determination of an application to vary the period of leave, so long as the application is made before the original leave has expired. All three appeals before the Court raise the issue of how section 3C applies where an application is made in time, but for some reason is procedurally defective. Sections 50 and 51 of the Immigration, Nationality and Asylum Act 2006 enable the Secretary of State to lay down in immigration rules procedural requirements for applications, including provision for the payment of a fee and the consequences of failure to comply. Similarly, sections 5 and 7 of the UK Borders Act 2007 provide the power to make regulations regarding the provision of biometric information and the effect of failure to comply with these. Mr Iqbal was granted entry clearance in January 2007 to come to the UK as a student, later extended to 30 April 2011. On 19 April 2011 he applied for further leave to remain as a student, although unaware that the fee had recently increased, he paid the old, lower fee. His application was rejected as invalid for that reason, and his leave expired. Mr Mirza entered the UK under a student visa which was valid until 31 March 2009. His application to extend leave was rejected for non payment of the fee when the Secretary of State was unable to take the 295 application fee from his bank. In Ms Ehsans case she had entry clearance until 28 December 2011. She applied for further leave on 23 December 2011 and was contacted by the Secretary of State, requesting that she make an appointment to provide certain biometric information. She was told by letter dated 26 March 2012 that her application was returned as invalid because of her failure to make and attend an appointment for providing biometric information. A new application made on 3 April 2012 subsequently failed. All three appellants applied for judicial review of the Secretary of States decisions, and following refusal of permission to apply for judicial review in the High Court/Upper Tribunal, permission to appeal was granted by the Court of Appeal. The Court of Appeal dismissed their joined appeals on the basis that section 3C did not extend to an application which was not validly made in accordance with the rules. The Supreme Court unanimously dismisses the appeals. Lord Carnwath gives the judgment, with which the other Justices agree. The public are entitled to the legislative scheme being underpinned by a coherent view of the meaning of the rules and regulations. The court agrees with the Court of Appeal as to the need for rationalisation and simplification [30]. The approach to the present appeals must be based on the legislation as it stands, since there has been no challenge to the legality or rationality of the rules and regulations. Ordinary principles of statutory interpretation are to be used, starting from the natural meaning of the words in their context. On this basis, the Court of Appeal in respect of Mr Iqbal and Mr Mirza reached the correct conclusion. There is no ambiguity in the words of regulation 37 of the 2011 Regulations: if an application is not accompanied by the specified fee it is not validly made. An application not validly made can have no substantive effect [33]. It does not matter that section 3C was enacted before the provisions of the 2006 Act or the regulations made under it, because the powers given by Parliament in the later Act were made within the same legislative framework as the 2002 Act. This does not equate with permitting the executive to alter the interpretation of primary legislation [34]. The Court of Appeal was also right in rejecting Mr Iqbals ground of appeal based on alleged unfairness. The comments of the Upper Tribunal in Basnet do not lay down a universal rule and although it is unfortunate that he was caught out by a change in fees, there was no failure by the Secretary of State to publicise that change. The problem only arose because the application had been made very close to the expiry of leave [35]. In the case of Ms Ehsan the situation is slightly different. While the obligation to pay fees arises at the time of the application, the requirement to apply for biometric information only arises at a later stage. Thus, while an application without the fee will be invalid from the outset, it is difficult to see why a failure at the biometric information stage should retrospectively invalidate an application from the outset, nullifying any section 3C extension to her leave to remain. There is no reason to read section 7 of the 2007 Act as having retrospective effect. Rather, the natural reading is to give power to invalidate the application from the time of the decision. However this reading would not help Ms Ehsan because even if her leave continued until the date of the Secretary of States decision on 26 March 2012, it would not assist her in respect of her new application made on 3 April 2012 [36 7].
By a time charter dated 11 September 2008, on an amended NYPE form, the owners NYK Bulkship (NYK) chartered the vessel Global Santosh to charterers Cargill International (Cargill) for one time charter trip (the charter). Cargill sub chartered the vessel to Sigma Shipping. The vessel carried a cargo of cement from Slite, Sweden to Port Harcourt, Nigeria, pursuant to a contract of sale between Transclear SA (as sellers) and IBG Investments Ltd, which had the ultimate obligation to discharge the cargo. Transclear had probably sub chartered the vessel, but whether this was from Sigma or by a more indirect link was not clear. Under that sale contract, IBG was to pay demurrage to Transclear in the event of delay in discharge beyond the agreed laytime in the contract. If that demurrage was unpaid, Transclear was purportedly granted a lien over the cargo. The vessel arrived at Port Harcourt on 15 October 2008 and tendered notice of readiness. She was instructed to remain at anchorage because of port congestion (caused, at least in part, by the breakdown of IBGs off loader). She proceeded to berth on 18 December 2008, but was ordered back to anchorage and arrested on the basis of a Nigerian court order arising from a claim by Transclear to secure a demurrage claim against IBG. This was an obvious mistake, because the order should have directed the arrest of the cargo, not the vessel. Following an agreement between Transclear and IBG, the vessel finally began discharging on 15 January 2009 and completed discharge on 26 January 2009. Cargill withheld hire for the period of the arrest. It relied on an off hire clause in the charter, clause 49, which stated that the vessel should be off hire during any period of detention or arrest by any authority or legal process during the charter, with the proviso unless such capture or seizure or detention is occasioned by any personal act or omission or default of the Charterers or their agents. Cargill commenced London arbitration claiming hire, but the arbitrators determined that the proviso in clause 49 did not apply during the period of the arrest. On an appeal, the Commercial Court allowed the appeal, holding that IBGs failure to discharge within the laydays under its contract of sale with Transclear and to pay demurrage were omissions in the course of discharging, and remitted the question of causation back to the arbitrators. The Court of Appeal dismissed the appeal, on the basis that the delay to the vessel fell within the charterer sphere of responsibility. Cargill appealed to the Supreme Court. The Supreme Court allows Cargills appeal by a majority of four to one, holding that the vessel was off hire throughout the period of arrest and that the proviso in clause 49 was not engaged. Lord Sumption gives the lead judgment, with which Lord Neuberger, Lord Mance and Lord Toulson agree. Lord Clarke writes a dissenting judgment, and would have dismissed the appeal and held that the vessel was on hire. This appeal raises a question as to the meaning of charterers agents in clause 49 of the charter. If a ship is sub let under a charter, the charter operates as a contract under which rights are enjoyed and obligations performed vicariously [14]. Agents is not used in its strict legal sense, but is used to refer to persons or subcontractors to whom the charterers rights are made available further down the chain, or who satisfy the time charterers obligations that have been delegated to them [19]. Not everything that a subcontractor does can be regarded as the exercise of a right or the performance of an obligation under a time charter. For the purposes of clause 49, there must be a sufficient nexus between the occasion for the arrest and the function which Transclear or IBG were performing as agent of Cargill [21]. The arrest was not occasioned by any personal act or omission or default of the Charterers or their agents. Firstly, Cargill was only responsible for IBGs acts or omissions in the actual performance of cargo handling operations while they were in progress. Cargill had no obligation to procure discharge at any particular time, and no contractual interest in the timing of the operation. In failing to carry out cargo handling operations between 15 October 2008 and 15 January 2009, IBG was not vicariously exercising Cargills rights, nor was it vicariously breaching Cargills obligations under the charter [28]. Secondly, the arrest was occasioned by a dispute between Transclear and IBG about demurrage under the sub charter. That was not the vicarious exercise of any right made available to Cargill under the time charter [30]. The Court of Appeal was wrong to approach the matter by asking in whose sphere of responsibility the matters occasioning the arrest lay. The only sense in which the arrest was occasioned by Cargills trading arrangements concerning the vessel was that Cargills sub charter to Sigma enabled Transclear and IBG to become involved further down the chain, and it was their dispute that caused the arrest. That ignores the need for a sufficient nexus between the acts leading to the arrest and the performance of functions under the charter [31]. Lord Clarke, in a dissenting judgment, would have held that the vessel was on hire during the period of the arrest. The agency extended to the operation of the vessel from the giving of the notice of readiness (or perhaps earlier), until the completion of discharge. An arrest during the period during which she was waiting to discharge is the same as an arrest in the course of the discharging operations [36]. The arrest had nothing to do with NYK, but was linked to Cargills discharge functions delegated to Transclear and IBG. An absence of cargo handling operations is just as much defective performance of them. This solution makes commercial sense, because the parties knew that demurrage might be incurred down the line, because it was common ground that the vessel was not off hire by reason of IBGs earlier failure to provide a working off loader, and because the owners had no control over Cargills delegation to Transclear and IBG [34 58].
This judgment deals with two English cases, while a separate judgment deals with the Scottish case Eba v Advocate General for Scotland. The issue common to all three is the scope for judicial review by the High Court or Court of Session of unappealable decisions of the Upper Tribunal established under the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act). In all of them the claimant failed in an appeal to the First tier Tribunal and was refused permission to appeal to the Upper Tribunal against that decision both by the First tier Tribunal and by the Upper Tribunal. In all three the claimant seeks a judicial review of the refusal of permission to appeal by the Upper Tribunal. The tribunal systems with which the three cases are concerned, both before and after their restructuring in the 2007 Act, are common to both parts of the United Kingdom, and in many contexts also to Northern Ireland. Part 1 of the 2007 Act established a new unified tribunal structure, which accommodates a diversity of jurisdictions. There is a right of appeal to the Court of Appeal, in England and Wales or Northern Ireland, or the Court of Session in Scotland, on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision (s 13(1), (2)). Excluded decisions include any decision of the Upper Tribunal on an application for permission or leave to appeal (s 13(8)(c)). Mr Cart appealed to the Social Security and Child Support Tribunal (whose jurisdiction has since been taken over by the First tier Tribunal) against the refusal of the Child Support Agency to revise a variation in the level of child maintenance to be paid to his ex wife. His appeal was dismissed. He applied for permission to appeal to the Child Support Commissioners (whose functions were subsequently taken over by the Administrative Appeals Chamber of the Upper Tribunal). Commissioner Jacobs gave him permission to appeal on three grounds but refused him permission to appeal on a fourth. The Upper Tribunal dismissed his appeal on the first three grounds and declined permission to reopen the fourth. Mr Cart sought judicial review of the Upper Tribunals refusal of permission to appeal on the fourth point. Determining the amenability of the Upper Tribunal to judicial review as a preliminary issue, the Divisional Court dismissed his claim for judicial review, holding that this was only available in exceptional circumstances. The Court of Appeal dismissed his appeal, reaching the same result but by a different route. MR is a native of Pakistan whose application for asylum was refused. His appeal to the Immigration and Asylum chamber of the First tier Tribunal was dismissed. Both the First tier Tribunal and then the Upper Tribunal refused his application for permission to appeal to the Upper Tribunal. MR sought judicial review of the Upper Tribunals refusal of permission to appeal. Sullivan LJ dismissed the judicial review claim in accordance with the decision of the Court of Appeal in Cart. He granted a certificate so that the appeal against his decision could leap frog over the Court of Appeal and be heard by this Court together with the appeals in Cart and Eba. The Supreme Court unanimously dismisses the appeals but on a different basis from that adopted in the Divisional Court and the Court of Appeal. It decides that permission for judicial review should only be granted where the criteria for a second tier appeal apply, that is where there is an important point of principle or practice or some other compelling reason to review the case. Lady Hale gives the leading judgment. The scope of judicial review is an artefact of the common law whose object is to maintain the rule of law. The question is, what machinery is necessary and proportionate to keep mistakes of law to a minimum? What level of independent scrutiny outside the tribunal structure is required by the rule of law? [37], [51] There are three possible approaches which the Court could take. First, that the scope of judicial review should be restricted to the exceptional circumstances identified in the Divisional Court and Court of Appeal, namely pre Anisminic excess of jurisdiction and the denial of fundamental justice (and possibly other exceptional circumstances). Second, that unrestricted judicial review should be available. Third, that judicial review should be limited to the grounds upon which permission to make a second tier appeal to the Court of Appeal would be granted, namely (a) the proposed appeal would raise some important point of principle or practice, or (b) there is some other compelling reason for the court to hear the appeal. [38] While the introduction of the new system may justify a more restricted approach, the exceptional circumstances approach is too narrow, leaving the possibility that serious errors of law affecting large numbers of people will go uncorrected. As regards the second approach, it is well known that the High Court and Court of Appeal were overwhelmed with judicial review applications in immigration and asylum cases until the introduction of statutory reviews. The mere fact that something has been taken for granted without causing practical problems in the social security context until now does not mean that it should be taken for granted forever. [44], [47], [51] The adoption of the second tier appeals criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself. It would recognise that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected. It is a test which the courts are now very used to applying. It is capable of encompassing both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual. There is clearly nothing in Mr Cart or MRs cases to bring them within the second tier appeal criteria. [57], [59], [128], [130], [131], [133] Per Lord Phillips. Where statute provides a structure under which a superior court or tribunal reviews decisions of an inferior court or tribunal, common law judicial review should be restricted so as to ensure, in the interest of making the best use of limited judicial resources, that this does not result in a duplication of judicial process that cannot be justified by the demands of the rule of law. [89]
Following a referendum, various provisions of the Government of Wales Act 2006 (the 2006 Act) came into force on 5 May 2011. These provisions gave the National Assembly for Wales (the Assembly) primary legislative competence in certain areas [5]. If there is an issue as to whether a Bill, or a provision in a Bill, passed by the Assembly exceeds legislative competence, the issue can be referred to the Supreme Court [6]. The Local Government Byelaws (Wales) Bill 2012 (the Bill) was the first Bill to be enacted by the Assembly under these new powers. The aim of the Bill is to simplify procedures for making and enforcing local authority byelaws in Wales [7]. Certain provisions of the Bill are intended to remove the need for the confirmation of byelaws by the Welsh Ministers and by the Secretary of State [8]. This need arises by virtue of the Local Government Act 1972 (the 1972 Act) and the National Assembly for Wales (Transfer of Functions) Order 1999 (the 1999 Order). The effect of section 236(11) of the 1972 Act is that, where a statutory provision giving a local authority the power or duty to make the byelaw either so provides or is silent as to the existence or identity of a confirmatory body or person, before any byelaw made under that provision by a local authority can be effective, the Secretary of State has to confirm the byelaw [16]. Schedule 1 to the 1999 Order provides that the functions of the Secretary of State under section 236(11) of the 1972 Act shall be exercisable by the Assembly concurrently with the Secretary of State [20]. The Attorney General referred to the Supreme Court the question whether sections 6 and 9 of the Bill were within the Assemblys legislative competence [1]. Section 6 of the Bill (through Part 1 of Schedule 1 to the Bill) removes the need for the confirmation of byelaws under certain specific enactments (the scheduled enactments) which currently require confirmation under section 236(11) of the 1972 Act. Section 9 would empower the Welsh Ministers to add to the scheduled enactments [8]. The specific issue in relation to sections 6 and 9 was whether either section removed the Secretary of States role in confirming (or refusing to confirm) byelaws made under statutory provisions which are (i) scheduled enactments, and (ii) provisions to which section 236(11) applies. If either section removed this role, they would be beyond the legislative competence of the Assembly, unless they were incidental to, or consequential on another provision contained in the Bill [46]. The Supreme Court unanimously declares that the Assembly had the legislative competence to enact sections 6 and 9 of the Bill. Lord Neuberger gives the leading judgment. Lord Hope gives guidance on some matters of practice regarding the making of such references. Section 6 is within the legislative competence of the Assembly [66],[83]. The removal of the Secretary of States confirmatory powers in relation to the scheduled enactments would be incidental to, and consequential on, the primary purpose of removing the need for confirmation by the Welsh Ministers of any byelaw made under the scheduled enactments [52],[53]. The primary purpose of the Bill cannot be achieved without that removal [54]. The Secretary of States confirmatory power is concurrent with that of the Welsh Ministers [55]. It is open to either the Secretary of State or the Assembly to exercise any functions which are exercisable concurrently [37]. Where a function is vested in two Ministers concurrently, either may perform it, acting alone, on any occasion [40]. It is far more sensible and consistent with the purpose of the Welsh Government legislation to conclude that the Assembly and the Secretary of State were each intended to have the power to exercise the concurrent functions, and that it was to be left to their good sense to decide which should exercise a particular function in a particular case [41]. The confirmatory power is only given to the Secretary of State if no other statute (including one passed after the 1972 Act) confers the function on any other body or person, which supports the notion that it is not an important function [56]. The scheduled enactments relate to byelaws in respect of which the Secretary of State is very unlikely ever to exercise his confirmatory power [57]. Section 9 is within the legislative competence of the Assembly [66],[84]. Section 9 has a limited effect, because the jurisdiction of the Assembly is limited to removing, or delegating the power to remove, functions of the Secretary of State where this would be incidental to, or consequential on, the purpose of removing the need for confirmation by the Welsh Ministers of any byelaw made under the scheduled enactments, and the Assembly cannot therefore bestow wider powers than this on the Welsh Ministers [63]. The same conclusion can be arrived at by invoking section 154(2) of the 2006 Act, which provides that a provision of a Bill which could be read in a way as to be outside the Assemblys legislative competence is to be read as narrowly as is required for it to be within that competence [64]. The outcome of this reference is in favour of the Assembly, but it cannot be regarded as a setback in practical terms for the Secretary of State, because the conclusion the Supreme Court has reached as to the effect of section 9 of the Bill is one which reflects the terms on which the Secretary of State was prepared to give consent to section 6 of the Bill [67]. The outcome is also entirely consistent with the general thrust of the extended powers given to the Welsh Ministers by the 2006 Act [68]. Guidance on matters of practice In terms of the relevant rules and practice direction, the reference should not have been served on the Assembly. Rather, it should have been served on the Counsel General in his capacity as a relevant officer having a potential interest in the proceedings. He can then become a respondent if he notifies the Registrar that he wishes to participate [90],[93]. As no form has been laid down for use in the case of references (as opposed to appeals) involving devolution issues, it is open to the referring law officer or court to adopt whatever style and layout is thought to be most appropriate in the circumstances. The Registrar must however be provided with certain information for administrative purposes [94]. Appearing as a contradictor to a challenge to the legislative competence of a Bill or an Act of the Assembly is not one of the Assembly Commissions functions under the 2006 Act. The appropriate person to represent the public interest in resisting such a challenge is the Counsel General. There may however be cases in which the court will allow the Assembly or the Assembly Commission to participate as an intervener [99],[100].
The appeals concern the entitlement to compensation of persons whose criminal convictions were subsequently quashed for being unsafe. The Appellants, Mr Hallam and Mr Nealon, spent, respectively, about seven years and 17 years in prison before their convictions were eventually quashed for being unsafe in light of newly discovered evidence. They subsequently applied for compensation under section 133 of the Criminal Justice Act 1988 (as amended by section 175 of the Anti social Behaviour, Crime and Policing Act 2014). The Secretary of State for Justice refused their applications on the ground that the new evidence did not show beyond reasonable doubt that they had not committed the offences. The Appellants argue that the requirement contained in section 133(1ZA) that a new or newly discovered fact must show beyond reasonable doubt that the person did not commit the offence, in the absence of which they are unable to claim compensation, is incompatible with the presumption of innocence contained in Article 6(2) of the European Convention on Human Rights (ECHR). Both the Divisional Court (Burnett LJ and Thirlwall J) and the Court of Appeal (Lord Dyson MR, Sir Brian Leveson P and Hamblen LJ) refused to make the declarations of incompatibility sought. By a majority of five to two, the Supreme Court dismisses the appeals. Lord Mance delivers the leading judgment. Lady Hale, Lord Wilson, Lord Hughes and Lord Lloyd Jones deliver concurring judgments. Lord Reed and Lord Kerr dissent. In the previous case of R (Adams) v Secretary of State for Justice [2011] UKSC 18, the Supreme Court identified four categories of case, of progressively wider scope, as a framework for discussing the meaning of miscarriage of justice for which an applicant could be compensated in accordance with section 133: (i) where the fresh evidence shows clearly that the defendant is innocent of the crime of which he had been convicted; (ii) where the fresh evidence so undermines the evidence against the defendant that no conviction could possibly be based upon it; (iii) where the conviction rendered the conviction unsafe because, had it been available at the time of trial, a reasonable jury might or might not have convicted; (iv) where something had gone seriously wrong in the investigation of the offence or the conduct of the trial, resulting in the conviction of somebody who should not have been convicted. The Court held that categories (i) and (ii) fell within the meaning of the phrase miscarriage of justice, and that section 133 was compatible with Article 6(2), which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. The appeal thus obliges the Supreme Court to consider whether it should depart from its previous decision in Adams in the light of the decision in Allen v United Kingdom, where the European Court of Human Rights (ECtHR) held that an applicants Article 6(2) right was not violated in a category (iii) case, and in the light of the introduction of section 133(1ZA), which defined miscarriage of justice so as to limit the entitlement to compensation to category (i) cases. Lord Mance holds that whether there exists a link between the criminal charge and, for instance, civil proceedings arising from the same facts is a diversion from the real question, namely whether the court in addressing the other, civil claim has suggested that the criminal proceedings should have been determined differently. If it has, it has exceeded its role. [47] Lord Mance would refuse to depart from Adams or follow the case law of the ECtHR if and insofar as the ECtHR may have, in the past, gone further than this. [48] Even if that is wrong and article 6(2) is in fact engaged, a separate question arises of whether section 133(1ZA) is nevertheless compatible with the Convention because it confines compensation to cases where the newly discovered evidence shows beyond doubt that the defendant did not commit the offence. This question has never been directly before the ECtHR or decided by it, and Lord Mance is far from confident that the Court would conclude that section 133(1ZA) is incompatible if the question were argued before it. [61] Although it is in general wise for the Supreme Court to find that an applicants rights have been breached where it is clear that the ECtHR would find a violation of the Convention, Lady Hale is persuaded that it is not so clear in this case. [76] Her Ladyship agrees with Lord Reed that article 6(2) is engaged, but it does not follow that the ECtHR would automatically find a violation. She also agrees with Lord Mances formulation of the test. [78] Lady Hale also considers the ECtHRs jurisprudence in this area to be evolving [79] and it is not appropriate for the court to make a declaration of incompatibility in proceedings brought by an individual in respect of whom the ECtHR would be unlikely to find a violation (the facts of these cases being equivalent to those in Allen where no violation was found). [81] [82] Lord Wilson would dismiss the appeal on the basis that the ECtHRs case law on article 6(2) has become hopelessly confused. [85] Lord Wilson cannot subscribe to the ECtHRs analysis in this area, despite the high professional regard in which he holds its judges, the desirability of a uniform interpretation of article 6(2) throughout the states of the Council of Europe, his belief that there is no room left for further constructive dialogue between this court and the ECtHR, and his recognition that the appellants are likely to prevail before the ECtHR in establishing a violation of their Convention rights. [94] Lord Hughes would dismiss the appeals for reasons which substantially, although not explicitly, overlap with those of both Lord Mance and Lord Wilson. [127] Different legal systems adopt different compensation schemes for those wrongfully convicted and, in some jurisdictions, even for those who were detained pending their trial. The ECtHR has been at pains to say that neither article 6(2) nor any other rule provides an unqualified right to be compensated in such circumstances. A person who seeks compensation after their conviction has been quashed is merely seeking to bring himself within the legitimate restrictive eligibility requirements for such compensation. Thus, even if there existed a workable test for finding the requisite link between an earlier (eventually quashed) conviction and the later compensation proceedings, such a link would not exist in this case, because the latter can only be said to be based on the former to the extent that the first condition for eligibility for compensation is that a conviction has been quashed. [123] [124] Lord Lloyd Jones agrees with Lord Mance and attaches particular importance to the fact that the ECtHR has not yet directly addressed the issue of why it is objectionable to require evidence establishing innocence but it is not objectionable to require evidence establishing that the claimant could not reasonably have been convicted. Having regard to the unsettled state of the ECtHRs case law, Lord Lloyd Jones is not persuaded that section 133 is incompatible with the Convention. These matters require consideration by the ECtHR. [137] [138] Lord Reed would have allowed the appeal. The critical factors (identified by the ECtHR in Allen) in establishing the necessary link are that the quashing of the conviction is a prerequisite of proceedings under section 133 and that in order to arrive at a decision on the claim it is necessary for the Secretary of State to examine the judgment of the Court of Appeal to determine whether the criteria of section 133 were satisfied. [170] Whilst it may be appropriate for this Court to decline to follow the ECtHR in certain circumstances, no circumstances of that kind exist here: the Grand Chambers judgment in Allen was carefully considered, is based on a detailed analysis of the relevant case law, is consistent with a line of authority going back decades, and has been followed by the ECtHR subsequently. [174] In the absence of some compelling justification, Lord Reed finds it difficult to accept that this court should deliberately adopt a construction of the Convention which it knows to be out of step with the ECtHRs approach, established by numerous judgments, and confirmed at the level of the Grand Chamber. [175] Lord Reed accepts that the implication of the decision in Allen is that it is not necessarily incompatible with article 6(2) to refuse compensation under section 133 in in category (iii) cases, but holds that section 133(1ZA) is not compatible with article 6(2), because it effectively requires the Secretary of State to decide whether persons whose convictions are quashed have established that they are innocent. [187] Lord Kerr agrees with Lord Reed. For the reasons given by Lord Reed, Lord Kerr considers that there exists the requisite link between the concluded criminal proceedings and the compensation proceedings, which is the test articulated in a clear and constant line of Strasbourg jurisprudence. [205] His Lordship also rejects Lord Mances formulation of the relevant test because it would cut out a swathe of deserving applicants who are unable to prove their innocence even though they are, in fact, innocent and the fate of applicants would be determined by the phraseology that happened to be chosen by the court. [206]
The appellant is the owner of a hydroelectric power plant in Kazakhstan. The respondent is the current operator of that plant. The concession agreement between the parties contains a clause providing that any disputes arising out of, or connected with, the concession agreement are to be arbitrated in London under International Chamber of Commerce Rules. For the purposes of this appeal the parties are agreed that the arbitration clause is governed by English law. The rest of the concession agreement is governed by Kazakh law. Relations between the owners and holders of the concession have often been strained. In 2004 the Republic of Kazakhstan, as the previous owner and grantor of the concession, obtained a ruling from the Kazakh Supreme Court that the arbitration clause was invalid. In 2009 the appellant, as the current owner and grantor of the concession, brought court proceedings against the respondent in Kazakhstan seeking information concerning concession assets. The respondents application to stay those proceedings under the contractual arbitration clause was dismissed on the basis that the Kazakh Supreme Court had annulled the arbitration clause by its 2004 decision. Shortly thereafter the respondent issued proceedings in England seeking (a) a declaration that the arbitration clause was valid and enforceable and (b) an anti suit injunction restraining the appellant from continuing with the Kazakh proceedings. An interim injunction was granted by the English Commercial Court and the appellant subsequently withdrew the request for information which was the subject of the Kazakh proceedings. However, the respondent remained concerned that the appellant would seek to bring further court proceedings in Kazakhstan in breach of the contractual agreement that such disputes should be subject to arbitration in London. As a result the respondent continued with the proceedings. The English Commercial Court found that they were not bound to follow the Kazakh courts conclusions in relation to an arbitration clause governed by English law and refused to do so. The Commercial Court duly granted both the declaratory and final injunctive relief sought. The appellant appealed to the Supreme Court of the United Kingdom on the grounds that English courts have no jurisdiction to injunct the commencement or continuation of legal proceedings brought in a foreign jurisdiction outside the Brussels Regulation/Lugano regime where no arbitral proceedings have been commenced or are proposed. The Supreme Court unanimously dismisses the appeal. The English courts have a long standing and well recognised jurisdiction to restrain foreign proceedings brought in violation of an arbitration agreement, even where no arbitration is on foot or in contemplation. Nothing in the Arbitration Act 1996 (the 1996 Act) has removed this power from the courts. The judgment of the court is given by Lord Mance. An arbitration agreement gives rise to a negative obligation whereby both parties expressly or impliedly promise to refrain from commencing proceedings in any forum other than the forum specified in the arbitration agreement. This negative promise not to commence proceedings in another forum is as important as the positive agreement on forum [21 26]. Independently of the 1996 Act the English courts have a general inherent power to declare rights and a well recognised power to enforce the negative aspect of an arbitration agreement by injuncting foreign proceedings brought in breach of an arbitration agreement even where arbitral proceedings are not on foot or in contemplation [19 23]. There is nothing in the 1996 Act which removes this power from the courts; where no arbitral proceedings are on foot or in prospect the 1996 Act neither limits the scope nor qualifies the use of the general power contained in section 37 of the Senior Courts Act 1981 (the 1981 Act) to injunct foreign proceedings begun or threatened in breach of an arbitration agreement [55]. To preclude the power of the courts to order such relief would have required express parliamentary provision to this effect [56]. The 1996 Act does not set out a comprehensive set of rules for the determination of all jurisdictional questions. Sections 30, 32, 44 and 72 of the 1996 Act only apply in circumstances where the arbitral proceedings are on foot or in contemplation; accordingly they have no bearing on whether the court may order injunctive relief under section 37 of the 1981 Act where no arbitration is on foot or in contemplation [40]. The grant of injunctive relief under section 37 of the 1981 Act in such circumstances does not constitute an intervention as defined in section 1(c) of the 1996 Act; section 1(c) is only concerned with court intervention in the arbitral process [41]. The reference in section 44(2)(e) of the 1996 Act to the power of the court to grant an interim injunction for the purposes of and in relation to arbitral proceedings was not intended to exclude or duplicate the courts general power to grant injunctive relief under section 37 of the 1981 Act [48]. Service out of the jurisdiction may be affected under Civil Procedure Rule 62.2 which provides for service out where an arbitration claim affects arbitration proceedings or an arbitration agreement; this provision is wide enough to embrace a claim under section 37 to restrain foreign proceedings brought or continued in breach of the negative aspect of an arbitration agreement [49].
The appeal relates to the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Convention) and to section 1(2) of the Child Abduction and Custody Act 1985. It is brought within proceedings issued by a mother (Spanish national living in Spain) against a father (British national living in England) for the summary return of their four children (T (a girl aged 13), L (a boy aged 11), A (a boy aged 9) and N (a boy aged 5)) from England to Spain. The Convention stipulates that, subject to narrow exceptions, a child wrongfully removed from, or retained outside, his or her place of habitual residence shall promptly be returned to it. The test for determining whether a child is habitually resident in a place is now whether there is some degree of integration by him or her in a social and family environment there. The principal question in this appeal is whether the courts may, in making a determination of habitual residence in relation to an adolescent child who has resided for a short time in a place under the care of one of his or her parents, have regard to that childs state of mind during the period of residence there. A subsidiary question is whether, in this case, the trial judge erred in exercising his discretion to decline to make the eldest child, T, a party to the proceedings. The parents met in England and lived in this country throughout their relationship, which ended early in 2012. On 24 July 2012 the mother and the four children, who were all born in the UK, moved to Spain where they then lived with their maternal grandmother. It was agreed that the children would spend Christmas with their father and on 23 December 2012 they returned to England. They were due to return to Spain on 5 January 2013. Shortly before they were due to fly, the two older boys hid the familys passports and they missed the plane. On 21 January 2013 the mother made an application under the Convention for the childrens return to Spain. The father applied for T to be joined as a party so that she might be separately represented, which the High Court refused. The High Court found all four children to be habitually resident in Spain and thus that they had been wrongfully been retained by their father. The judge acknowledged that the eldest, T, objected to being returned to Spain but determined that she should nonetheless be returned along with the three younger children. The Court of Appeal dismissed the appeal against the judges finding that the childrens habitual residence was in Spain. However, the Court of Appeal reversed the judges decision to return T to Spain finding that, so robust and determined were Ts objections, they should be given very considerable weight. The Court of Appeal concluded that the appropriate course was to remit to the judge the question whether it would be intolerable to return the three younger children to Spain in light of the fact that T was not going to go with them. The Court of Appeal dismissed the appeals not only of L and A but also of T against the High Courts failure (in Ts case, refusal) to make them parties to the proceedings. The Supreme Court unanimously finds that Ts assertions about her state of mind during her residence in Spain in 2012 are relevant to a determination whether her residence there was habitual. The Supreme Court sets aside the conclusion that T was habitually resident in Spain on 5 January 2013 and remits the issue to the High Court for fresh consideration. The Supreme Court also sets aside the finding of habitual residence in respect of the three younger children so that the issue can be reconsidered in relation to all four children. The Supreme Court unanimously also concludes that T should have been granted party status and that the Court of Appeal should have allowed her appeal against the judges refusal of it. Lord Wilson gives the lead judgment of the Court. Courts are now required, in analysing the habitual residence of a child, to search for some integration of her in a social and family environment [34]. Where a child goes lawfully to reside with a parent in a state in which that parent is habitually resident it will be highly unusual for that child not to acquire habitual residence there too. However, in highly unusual cases there must be room for a different conclusion, and the requirement of some degree of integration provides such room [37]. No different conclusion will be reached in the case of a young child. Where, however, the child is older, particularly where the child is or has the maturity of an adolescent, and the residence has been of a short duration, the inquiry into her integration in the new environment may warrant attention to be given to a different dimension [37]. Lady Hale, with whom Lord Sumption agrees, would hold that the question whether a childs state of mind is relevant to whether that child has acquired habitual residence in the place he or she is living cannot be restricted only to adolescent children [57]. In her view, the logic making an adolescents state of mind relevant applies equally to the younger children, although the answer to the factual question may be different in their case [58]. The Court notes that what can be relevant to whether an older child shares her parents habitual residence is not the childs wishes, views, intentions or decisions but her state of mind during the period of her residence with that parent [37]. The Court rejects the suggestion that it should substitute a conclusion that T remained habitually resident in England on 5 January 2013 [42]. The inquiry into Ts state of mind in the High Court had been in relation to her objections to returning to Spain and was not directly concerned with her state of mind during her time there [42 (i)]. In addition, the mother has not had the opportunity to give evidence, nor to make submissions, in response to Ts statements to the Cafcass (Children and Family Court Advisory and Support Service) officer regarding her state of mind when in Spain [42 (v)]. Lady Hale expresses grave doubts about whether sending the case back to the High Court for further enquiries into the childrens states of mind would be a fruitful exercise [67]. However, in the interest of justice, she concludes that it should nonetheless be sent back [86]. The majority do not think the state of mind of L or A could alone alter the conclusion about their integration in Spain, but note another significant factor, namely the presence of their older sister, T, in their daily lives [43]. In relation to the habitual residence of the three younger children and in the light of their close sibling bond, the majority query whether Ts habitual residence in England (if such it was) might be a counterweight to the significance of the mothers habitual residence in Spain [43]. Lady Hale agrees with this analysis when applied to the youngest child. [65]. With regard to the subsidiary appeal, the Court notes that an older child in particular may be able to contribute relevant evidence, not easily obtainable from either parent, about her state of mind during the period in question [49]. However, it is considered inappropriate to hear oral evidence from T even as a party. Instead, a witness statement from T; cross examination of the mother by Ts advocate; and the same advocates closing submissions on behalf of T should suffice to represent her contribution as a party [55].
The issue in this appeal is whether Lloyds Banking Group (LBG) is entitled to redeem 3.3 billion of enhanced capital notes (ECNs) which carry an interest rate of over 10% per annum. The capital requirements for financial institutions were, at the time of the issue of the ECNs, set out in the CRD I Directive, which arranged the capital of financial institutions in tiers, the highest of which was Core Tier 1 (CT1). In March 2009, the Financial Services Authority (the FSA), having stress tested LBG and found a shortfall, required it to raise 21 billion which could qualify as CT1 Capital. LBG raised some of this amount by issuing 8.3 billion of ECNs in December 2009. The ECNs were intended to satisfy criteria set out by the FSA in a statement issued in September 2009, which provided that hybrid capital instruments capable of supporting CT1 Capital by means of a conversion or write down mechanism at an appropriate trigger could qualify as CT1 Capital. The terms of the ECNs were contained in a Trust Deed (the Trust Deed), which included detailed terms and conditions (T&Cs). The ECNs were not redeemable until specified maturity dates, unless (i) converted into shares on the occurrence of a conversion trigger, being any time when LBGs CT1 ratio fell below 5%; or (ii) redeemed early by LBG on the occurrence of a Capital Disqualification Event (CDE). One of the two circumstances in which a CDE occurs is stated in clause 19(2) to be where, as a result of any changes to regulatory capital requirements, the ECNs cease to be taken into account in whole or in part for the purposes of any stress test in respect of the Consolidated CT1 ratio. In June 2013, a new directive, CRD IV, replaced CT1 Capital with a more restrictive category, Common Equity Tier 1 Capital (CET1 Capital) and effected other changes to capital requirements. In accordance with these changes, the successor to the FSA, the Prudential Regulation Authority (the PRA), confirmed that LBG was subject to a new 7% CET1 ratio standard and that the ECNs would need to have a trigger for conversion higher than 5.125% CET1 in order to count as core capital. In March April 2014, LBG exchanged 5 billion of ECNs for instruments which satisfied the new requirements. In December 2014, the PRA reported that LBGs CET1 ratio was 10.1% and its minimum stressed ratio was 5%. The ECNs were not taken into account in either assessment. On 16 December 2014, LBG announced that a CDE had occurred under clause 19(2) and that it was entitled to redeem the outstanding 3.3 billion ECNs. BNY Mellon Corporate Trustee Services Ltd (BNY Mellon), as trustee for the holders of the ECNs, issued proceedings challenging LBGs claim and denying that a CDE had occurred. At first instance, Sir Terence Etherton found for BNY Mellon. The Court of Appeal allowed LBGs appeal. BNY Mellon now appeals to the Supreme Court. The Supreme Court dismisses BNY Mellons appeal by a 3:2 majority. Lord Neuberger gives the leading judgment, with which Lord Mance and Lord Toulson agree. Lord Sumption gives a short dissenting judgment, with which Lord Clarke agrees. The Trust Deed cannot be understood unless one has some appreciation of the regulatory policy of the FSA at and before the time that the ECNs were issued [33]. Thus, the general thrust and effect of the FSA regulatory material published in 2008 and 2009 can be taken into account when interpreting the T&Cs [33]. BNY Mellon argued that the December 2014 stress test was not in respect of Consolidated Core Tier 1 ratio as specified in clause 19(2) of the T&Cs as CT1 had by this point been replaced by CET1 Capital [27]. This argument is rejected [35]. The reference to the Consolidated Core Tier 1 Ratio should, in the events which have happened, be treated as a reference to its then regulatory equivalent, being Common Equity Tier 1 Capital [35]. BNY Mellons second argument is that, in order for it to be said that the ECNs had not been taken into account, they must be disallowed in principle from being taken into account for the purposes of the Tier 1 ratio [27, 40]. The question is whether it is sufficient that the ECNs continue to be taken into account for some purpose in the stress test, or whether they must play a part in enabling LBG to pass that test, which they no longer do [40 42]. The preferable view is that the ECNs must play a part in enabling LBG to pass the stress test [45]. Under the Regulations passed in 2013, the ECNs cannot be taken into account so as to do the very job for which their convertibility was designed, namely to enable them to be converted before the regulatory minimum Tier 1 ratio is reached [45]. This conclusion is also supported by the contrast between ceased to be taken into account, the expression in clause 19(2), and a different expression, no longer eligible to qualify, which is in clause 19(1) [46]. Further, if the contrary view were correct, it is very difficult to envisage circumstances in which it could have been thought that clause 19(2) could have been invoked [47]. Accordingly, the Trustees appeal should be dismissed, on the basis that a CDE has arisen under clause 19(2) [54]. Lord Sumption, with whom Lord Clarke agrees, dissents on this point and considers that the ECNs are not redeemable because, notwithstanding their status as lower tier capital, they would be treated by the regulator as top tier capital in the hypothetical event that LBGs affairs deteriorated to the point where the conversion trigger was attained [55 62].
The respondent is a Sri Lankan Tamil. In 1992, at the age of 10, he became a member of the Liberation Tigers of Tamil Eelam (LTTE), the following year joining the LTTEs Intelligence Division. He occupied various positions of responsibility and gained promotions within the organisation. At 18 he was appointed to lead a mobile unit transporting military equipment and other members of the Intelligence Division through jungles to a point where armed members of the Division could be sent in plain clothes to Colombo. He continued to do this for some three years from September 2000 until early 2004 except for some two and a half months where he was appointed one of the chief security guards to the Intelligence Divisions leader, whom he accompanied as a trusted aide on visits to the LTTE District Leader and other prominent LTTE members. From early 2004 he served as second in command of the combat unit of the Intelligence Division. In October 2006 he was sent incognito to Colombo to await further instructions. In December 2006 the respondent learned that his presence in Colombo had been discovered by the Sri Lankan government and his LTTE membership known. On 7 February 2007 he arrived in the UK and two days later applied for asylum on the basis that if he returned to Sri Lanka he would face mistreatment due to his race and LTTE membership. The respondents application for asylum was refused by the Secretary of State (SoS) in September 2007 solely by reference to article 1F(a) of the Refugee Convention. It states that a person is not to be recognised as a refugee where there are serious reasons for considering that (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes. In his decision letter the SoS referred to the case of Gurung [2002] UKIAT 04870 (starred), which the SoS considered was authority for the proposition that voluntary membership of an extremist group could be presumed to amount to personal and knowing participation, or at least acquiescence amounting to complicity in the crimes in question. The SoS was of the view that the respondents own evidence showed voluntary membership and command responsibility within an organisation that has been responsible for widespread and systemic war crimes and crimes against humanity, such that there were serious reasons for considering that the respondent was aware of and fully understood the methods employed by the LTTE. The respondent sought judicial review of the SoSs decision. The Court of Appeal quashed the SoSs decision. The Court of Appeal held that as it was the design of some members of the LTTE to carry out international crimes in pursuit of the organisations political ends, the SoS acted on a wrongful presumption that the respondent, as a member of the LTTE, was guilty of personal and knowing participation in such crimes. He should have considered whether there was evidence affording serious reasons for considering that he was party to that design, that he had participated in a way that made a significant contribution to the commission of such crimes and that he had done so with the intention of furthering the perpetration of such crimes. The SoS appealed the decision. The Supreme Court unanimously dismisses the appeal, but varies the order made by the Court of Appeal to provide that in re determining the respondents asylum application, the SoS should direct himself in accordance with the Courts judgments, not those of the Court of Appeal. Lord Brown gives the leading judgment of the Court. Lord Hope and Lord Kerr give concurring judgments. The Court on this appeal has essentially three tasks. The first is to decide whether the Court of Appeal was right to quash the refusal decision and remit the case for redetermination by the SoS. Secondly, the Court has to decide on the correctness of the principles laid down in Gurung. The Courts third task is to decide whether the Court of Appeal was right to interpret war crimes liability under article 1F(a) as narrowly as they appeared to do, essentially so as to encompass no more than joint enterprise liability (para 26). In relation to the first issue, it could not be said of the LTTE or its Intelligence Division that as an organisation it was predominantly terrorist in character Gurung para 105. There was accordingly no question of presuming that the respondents voluntary membership of this organisation amounted to personal and knowing participation, or at least acquiescence amounting to complicity in the crimes in question. Nor was the respondents command responsibility within the organisation a basis for regarding him as responsible for war crimes (para 27). As to the second issue, there are criticisms to be made of Gurung and it should not in future be accorded the same standing as it seems hitherto to have enjoyed. o In the first place, it is unhelpful to attempt to carve out from amongst organisations engaging in terrorism a sub category of those whose aims, methods and activities are predominantly terrorist in character, and to suggest that membership of one of these gives rise to a presumption of criminal complicity Gurung para 105 (para 29). It is preferable to focus on what must prove to be the determining factors in any case, principally (in no particular order): the nature and (potentially of some importance) the size of the organisation and particularly that part of it with which the asylum seeker was himself most directly concerned, whether and, if so, by whom the organisation was proscribed, how the asylum seeker came to be recruited, the length of time he remained in that organisation and what, if any, opportunities he had to leave it, his position, rank, standing and influence in the organisation, his knowledge of the organisations war crimes activities, and his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes. o The second major criticism to be made of Gurung is its introduction of the idea of a continuum in relation to the types of organisations, and their political aims and objectives, for war crimes cases. War crimes are war crimes however benevolent and estimable may be the long term aims of those concerned. And actions which would not otherwise constitute war crimes do not become so merely because they are taken pursuant to policies abhorrent to western liberal democracies (para 32). As to the third issue, article 1F disqualifies persons who make a substantial contribution to the crime, knowing that their acts or omissions will facilitate it (para 35). Criminal responsibility will only attach to those with the necessary mental element. But, as article 30 of the Rome Statute of the International Criminal Court makes plain, if a person is aware that in the ordinary course of events a particular consequence will follow from his actions, he is taken to have acted with both knowledge and intent (para 36). The Court of Appeal took too narrow an approach. It appeared to confine article 1F liability essentially to just the same sort of joint criminal enterprises as would result in convictions under domestic law. An accused is disqualified under article 1F if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisations ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose (para 38).
This appeal concerns the validity of confiscation orders made with the appellants consent. On 23 November 2007, three brothers, Patrick Mackle, Plunkett Jude Mackle (commonly known as Jude) and Benedict Mackle, all pleaded guilty to having been knowingly concerned in the fraudulent evasion of duty on cigarettes, contrary to Section 170(2)(a) of the Customs & Excise Management Act 1979. In a separate trial, on 18 November 2008, Henry McLaughlin pleaded guilty to a similar offence. He was also convicted of a second offence, on his plea of guilty, but that is not relevant to this appeal. On 13 December 2007 Deeny J sentenced Patrick Mackle to three years imprisonment, and Jude Mackle and Benedict Mackle to two and a half years imprisonment. All three sentences were suspended for five years. At a later hearing, on 29 October 2008, confiscation orders were made against Patrick Mackle for 518,387.00, and against Jude and Benedict Mackle for 259,193.00 each. The aggregate sum produced by these three amounts was equal to the amount of duty and Value Added Tax which had been evaded. The confiscation orders were made with the consent of each of the Mackle brothers. Henry McLaughlin was sentenced by Weatherup J on 19 November 2008 to one years imprisonment suspended for two years. The judge also imposed a serious crime prevention order for a period of five years. A confiscation order for 100,000 was made against Mr McLaughlin on the same date. This sum, taken together with other confiscation orders made against his co defendants, represented the total amount of duty and VAT said to have been evaded. The confiscation order against Mr McLaughlin was also made with his consent. Messrs Mackle and McLaughlin appealed against the consent orders on the grounds that they were made on the wrong legal basis. Confiscation orders must be made to recover the amount by which a defendant has benefited financially from the offence. The appellants argued that they could not have benefited financially from the offences if they were not liable to pay the duties they were concerned in avoiding. While they might have been liable under the previous duty regime, the Excise Goods (Holding, Movement, Warehousing and REDS) Regulations 1992, they did not fall within any of the categories of persons liable under the present regime, the Tobacco Products Regulations 2001. The Court of Appeal dismissed their appeals but certified that the following points of law of general public importance arose from its judgment: 1. Is a defendant who pleaded guilty to being knowingly concerned in the fraudulent evasion of duty and who consents, with the benefit of legal advice, to the making of a confiscation order in an agreed amount in circumstances which make clear that he does not require the Crown to prove that he obtained property or a pecuniary advantage in connection with the charged criminal conduct bound by the terms of the confiscation order? 2. Does a defendant who knowingly comes into physical possession of dutiable goods in respect of which he knows the duty has been evaded and plays an active role in the handling of those goods so as to assist in the commercial realisation of the goods benefit from his criminal activity by obtaining those goods for the purposes of section 158 of the Proceeds of Crime Act 2002? The Supreme Court unanimously allows all four appeals. Lord Kerr gives the judgment of the Court, with which the other Justices agree. As to the first question, the prosecution had firmly espoused the case that the benefit obtained by the appellants took the form of a pecuniary advantage derived from evasion of the duty on the cigarettes. This basis of benefit was, unsurprisingly, accepted uncritically by the sentencing judges. But since the appellants liability to pay duty could not be established this was not a correct legal basis on which to find that the appellants had obtained a benefit [47]. In holding that they might nonetheless be bound by the orders, since they were made with the appellants consent, it appears that the Court of Appeal had not been referred to decisions of the House of Lords and the Court of Appeal of England and Wales which established that an appeal ought to be available to defendants who had made a plea on a mistaken legal basis [4849]. It is to be remembered that a court must itself decide whether the convicted person has benefited from his particular criminal conduct. The power to make a confiscation order arises only where the court has made that determination. A defendants consent cannot confer jurisdiction to make a confiscation order. This is particularly so where the facts on which such a consent is based cannot as a matter of law support the conclusion that the defendant has benefited. On the other hand, if it is clear from the terms on which a defendant consents to a confiscation order, that he has accepted facts which would justify the making of an order, a judge, provided he is satisfied that there has been an unambiguous acceptance of those facts from which the defendant should not be permitted to resile, will be entitled to rely on the consent. This is not because the defendant has consented to the order. It is because his acceptance of facts itself constitutes evidence on which the judge is entitled to rely [50]. It would be manifestly unfair to require the appellants in this case to be bound by their consent to the confiscation orders when the only possible explanation for the consent was that it was given under a mistake of law. That was the explanation they had put to the Court of Appeal, and the prosecution had not challenged it [53]. And the confiscated amounts corresponded exactly to the duty and VAT evaded. Lord Kerr would therefore reframe the first certified question to reflect the circumstances of this case: Is a defendant precluded from appealing against a confiscation order made by consent on the ground that the consent was based on a mistake of law, as a result of wrong legal advice? The answer is, no. [54] As to the second question, the Court of Appeal dismissed the appeals because it considered the appellants could, have been found to have benefited from their admitted criminal conduct. But it advanced this view only on the basis of findings that might have been made by the trial judge, but were not in fact. The trial judge would have had to have been satisfied that the appellants had in fact benefited from the offences in such a way, having given them the opportunity of responding to that suggestion [5556]. In any event it was clear from previous House of Lords authority that merely handling goods or being involved in a joint criminal enterprise does not in itself confer a benefit. Lord Kerr would therefore answer the second question, Not necessarily. Playing an active part in the handling of goods so as to assist in their commercial realization does not alone establish that a person has benefited from his criminal activity. In order to obtain the goods for the purposes of section 156 of POCA 2002 or article 8 of the Proceeds of Crime (Northern Ireland) Order 1996, it must be established by the evidence or reasonable inferences drawn therefrom that such a person has actually obtained a benefit. [5768]. The Court therefore quashes the confiscation orders and remits the cases to the trial courts to proceed afresh in light of this judgment [69].
The appellants in these two appeals are prisoners serving sentences of life imprisonment imposed for murder, combined in the case of McGeogh with a later sentence of seven and a half years for violent escape from lawful custody. Both the appellants claim that their rights have been and are being infringed because they are not entitled to vote. United Kingdom law currently contains a general prohibition on voting by prisoners. In a series of cases (Hirst (No 2) v UK, Greens v UK and Scoppola v Italy) the European Court of Human Rights (ECtHR) has held that a blanket prohibition of this nature is an indiscriminate restriction on a vitally important right and, as such, incompatible with Article 3 of Protocol No 1 (A3P1, the duty to hold free and fair elections) of the European Convention on Human Rights (the Convention) [18 22]. The appellant Peter Chester issued a claim for judicial review in December 2008 in relation to UK and European Parliamentary elections. He relies on A3P1, as incorporated into domestic law by the Human Rights Act (the HRA), and also on European Community or now Union law (EU law). The appellant George McGeochs claim for judicial review was issued in February 2011 in relation to local and Scottish Parliamentary elections. He relies solely on EU law [1 3]. Both claims were dismissed by the courts below. The High Court and Court of Appeal held in Chesters case that it was not their role to sanction the Government for the delay in implementing the decision in Hirst (No 2) or to advise as to how the Government might implement a voting system that would be compatible with A3P1, and that EU law raised no separate issue. The Inner House dismissed McGeoghs claim on the ground that EU law only conferred a right to vote in municipal (i.e. local) elections on EU citizens residing in a Member State of which they were not nationals. The Supreme Court permitted McGeoch to add a complaint that his rights in relation to EU Parliamentary elections were also being infringed [2 3]. The issues before the Supreme Court are: (a) whether it should apply the principles established in Hirst (No 2);(b) whether, if such principles are applied, the current ban on voting is incompatible with Chesters rights under A3P1, and Supreme Court should make a further declaration of incompatibility under the HRA; (c) whether EU law recognises an individual right to vote, in terms paralleling or greater than that arising under A3P1, on which the appellants can rely upon as EU citizens claiming to vote in their own countries; and (d) what consequences would follow if EU law were to recognise an individual right to vote of this nature and, in particular, what if any relief would be available to Chester and McGeogh. The Supreme Court unanimously dismisses both appeals. Lord Mance gives the lead judgment. Lady Hale, Lord Clarke and Lord Sumption give additional judgments. With regard to claims under the Convention, the Supreme Court applies the principles in Hirst (No 2) and Scoppola regarding the blanket ban on voting, but declines to make any further declaration of incompatibility in respect of Chester [39 42]. With regard to EU law, this does not provide an individual right to vote paralleling that recognised by the ECtHR in its case law. The resolution of these appeals does not require a reference to the Court of Justice of the European Union (CJEU) [46 47, 58, 59, 63 64 and 68]. Claims under the Human Rights Act Under the HRA, the Supreme Court is required to take into account decisions of the ECtHR, not necessarily to follow them. This enables the national courts to engage in a constructive dialogue with the ECtHR. However, the prohibition on prisoner voting in the UK has now been considered by the Grand Chamber of the ECtHR twice and, on each occasion, found to be incompatible with A3P1. In these circumstances, it would have to involve some truly fundamental principle of law or the most egregious oversight or misunderstanding before it could be appropriate for the Supreme Court to refuse to follow Grand Chamber decisions of the ECtHR. The ban on prisoner voting is not a fundamental principle of law in the UK, and the circumstances do not justify a departure from the ECtHRs caselaw [25 35]. Accepting that, on the reasoning in Hirst (No 2), Chester was a victim for the purposes of the HRA and the Convention and entitled as such to bring a claim against the respondents, that does not necessarily entitle him to any particular remedy under the HRA. A declaration of incompatibility is a discretionary remedy. The incompatibility of the prohibition on prisoner voting in the UK with the Convention is already the subject of a declaration of incompatibility made in Smith v Scott and is currently under review by Parliament. In these circumstances there is no point in making a further declaration of incompatibility. This is particularly so in the case of Chester. Given that he is serving a sentence of life imprisonment, ECtHR caselaw indicates that he would not himself have a right to benefit from any amendments to the law on prisoner voting necessary to remedy the present incompatibility of UK law with the Convention [36 42]. That is so although his tariff period has expired and he remains in detention because his detention continues to be necessary for the protection of the public. Claims under EU law The provisions on voting contained in the applicable European Treaties focus on the core concerns of ensuring equal treatment between EU citizens residing in Member States other than that of their nationality, and so safeguarding freedom of movement within the EU. Eligibility to vote in Member States is basically a matter for national legislatures [58 59]. The CJEU has scrutinised national eligibility criteria for conformity with the EU legal principle of non discrimination in a context where Netherlands law extended the right to vote of its nationals to nationals resident in some, but not all, non EU States. But there is no equivalent link with EU law in the present cases [60 64]. Additional EU analysis For completeness, the Supreme Court has considered the consequences if, contrary to their conclusions, EU law were to regarded as conferring an individual right to vote on which McGeoch and Chester could rely. On that hypothesis, it considers that: The EU legal principle of non discrimination would still not be engaged. Convicted prisoners serving their sentence are not in a comparable position to persons not in prison [65 68] In any event, the general ban on prisoner voting could not have been disapplied as a whole, and the relevant domestic legislation could not have been interpreted compatibly with EU law. Nor could the Supreme Court itself have devised a scheme compatible with EU law; that would be for Parliament. Therefore, the only relief that might have been appropriate would have been a declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the UK were inconsistent with EU law, although even that would not have appeared appropriate in the instant cases [72 74]. Neither of the appellants could have had any arguable claim for damages in respect of any breach of EU law [82 83].
Three prisoners brought appeals concerning the circumstances in which the Parole Board is required to hold an oral hearing. Osborn was convicted in 2006 following an incident in which he was said to have brandished an imitation firearm at the home of his estranged wife. He was given a six year prison sentence and was released on licence in February 2009, the halfway point. He was recalled to prison later that day for breach of his licence conditions [18 29]. Booth and Reilly are indeterminate sentence prisoners who have served their minimum terms. In 1981, Booth [30 42] received a discretionary life sentence for attempted murder, with a minimum term of six and a half years. Reilly [43 53] was convicted in 2002 of robbery, attempted robbery and possession of an imitation firearm. He received an automatic life sentence with a minimum term of six years and eight months, which expired in September 2009. Both remain in custody. Each case was considered on paper by the boards single member panel. It decided not to direct the prisoners release or recommend their transfer to open prison conditions. Their solicitors made written representations to the board, disputing its findings and requesting an oral hearing in each case, but those requests were refused. All three sought judicial reviews of the decisions not to offer oral hearings. Only Reilly succeeded in the High Court, which found that the board had breached its common law duty of fairness, and had acted incompatibly with the appellants rights under article 5(4) of the European Convention on Human Rights1 by failing to offer him an oral hearing. This was overturned by the Northern Ireland Court of Appeal. The Supreme Court unanimously allows the appeals and declares that the board breached its common law duty of procedural fairness to the appellants, and article 5(4) of the European Convention, by failing to offer them oral hearings [116]. 1 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The judgment, delivered by Lord Reed, emphasises that human rights protection is not a distinct area of the law based on the case law of the European Court, but permeates our legal system. Compliance with article 5(4) requires compliance with the relevant rules of domestic law [54 56]. The legal analysis of the problem does not begin and end with the Strasbourg case law [63]. Lord Reed sets out guidance (summarised at [2]) on complying with common law standards in this context. The board should hold an oral hearing whenever fairness to the prisoner requires one in the light of the facts of the case and the importance of what is at stake [81]. By doing so, it will act compatibly with article 5(4) [103]. It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but these will often include: (a) where important facts are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility [73 78; 85]; (b) where the board cannot otherwise properly or fairly make an independent assessment of risk, or of how it should be managed and addressed [79; 81; 86]; (c) where it is tenably maintained that a face to face encounter, or questioning of those who have dealt with the prisoner, is necessary to enable his case to be put effectively or to test the views of those who have dealt with him [82]; and (d) where, in the light of the prisoners representations, it would be unfair for a paper decision taken by a single member panel to become final without an oral hearing [96]. The purpose of the oral hearing is not only to assist in the boards decision making, but also to reflect the prisoners legitimate interest in being able to participate in a procedure with important implications for him, where he has something useful to contribute [82]. The likelihood of release or transfer is separate from the question of whether fairness requires an oral hearing [88 89]. When dealing with recalled prisoners cases, the board should bear in mind that they have been deprived of their freedom [83]. For indeterminate sentence prisoners, increased scrutiny should be afforded by the board in assessing whether the risk they present is unacceptable the longer they have spent in prison post tariff [83]. The board must be, and appear to be, independent and impartial [90 91] and guard against any temptation to refuse an oral hearing to save time, trouble and expense [91]. Lord Reed stresses that paper decisions are provisional; the right to request an oral hearing is not an appeal, and the prisoner need only persuade the board that an oral hearing is appropriate [94 95]. The common law duty to act fairly is influenced by the requirements of article 5(4); compliance with the former should ensure compliance with the latter [101 113]. Breach of article 5(4) will not normally result in an award of damages under the Human Rights Act unless the breach has resulted in the prisoner suffering a deprivation of liberty [114 115]. An oral hearing ought to have been offered to the appellants. Osborn and Reilly had advanced various explanations and mitigations [98] and their requests for an oral hearing were mistakenly characterised as appeals [99 100]. In Booths case, input from his psychiatrist at an oral hearing would have been helpful and it was relevant that he had spent so long in custody post tariff [99]. Reillys claim for damages failed it had not been argued that he had suffered any deprivation of liberty as a result of the article 5(4) breach [115].
This is an appeal from the Court of Appeal of Northern Ireland. The issue is whether a pupil was unlawfully suspended from his school in County Antrim. His school fell within the area of the North Eastern Education and Library Board. The Board had prepared a Scheme governing the suspension and expulsion of pupils. It had done so pursuant to the requirement of the Education and Libraries (NI) Order 1986. The appellant was suspended following a complaint by a girl pupil at the school of misconduct in relation to her which she insisted that the principal of the school should keep confidential. The principal suspended the appellant to protect this pupil pending a risk assessment, stating that he did so as a precautionary measure. Although he purported to suspend the pupil pursuant to the Scheme, he failed to comply with its requirements. The appellant brought proceedings for judicial review, contending that his suspension was unlawful and denied him the right to education guaranteed by the European Convention on Human Rights, contrary to the Human Rights Act 1998. The Court of Appeal held that the principal had lawfully exercised a common law power to suspend the appellant that existed, as part of his managerial powers, in parallel with the power conferred under the Scheme. The Supreme Court reversed this finding to the extent of holding that the principal had had no such power. Sir John Dyson, Lord Phillips and Lady Hale held that the suspension was disciplinary, or at least had been imposed in a disciplinary context, and that no common law power to suspend subsisted in these circumstances. Lord Rodger and Lord Brown held that the suspension was a precautionary measure rather than a disciplinary sanction, but that there was no common law power to suspend outside the Scheme. It followed that the suspension was unlawful. The Court was unanimous in holding that the suspension did not amount to a denial of the right to education guaranteed by the Convention.
11 13 Randolph Crescent is a block of nine flats in Maida Vale, London. Two of the leases are held by the respondent, Dr Julia Duval, and a third lease is held by Mrs Martha Winfield. The term of each lease is 125 years from 24 June 1981. The appellant landlord owns the freehold of the building and is also the management company. All of the shares in the landlord company are owned by the leaseholders of the flats. The leases are, in all relevant respects, in substantially the same form. Each of them contains a covenant, clause 2.6, which prevents the lessee from making any alteration or improvement in, or addition to, the premises demised by the lease without the prior written consent of the landlord. By the operation of a statutory provision, that consent cannot be unreasonably withheld. Each lease also contains an absolute covenant, clause 2.7, which prevents the lessee from cutting into any roofs, walls, ceilings or service media. In addition, clause 3.19 of each lease requires the landlord to enforce, at the request and cost of any lessee, certain covenants in the leases held by the other lessees, including any covenant of a similar nature to clause 2.7. In 2015, Mrs Winfield sought a licence from the landlord to carry out works to her flat. The proposed works involved removing a substantial part of a load bearing wall at basement level. The licence was refused after the proposal came to the attention of Dr Duval and her husband. However, following presentations by engineers and architects acting for Mrs Winfield, the landlord decided it was minded to grant a licence, subject to Mrs Winfield securing adequate insurance. Dr Duval then issued proceedings against the landlord, seeking a declaration that the landlord did not possess the power to permit Mrs Winfield to act in breach of clause 2.7 of her lease. Deputy District Judge Chambers held that, on the proper interpretation of clause 3.19, the landlord had no power to waive any of the covenants in clause 2 without the prior consent of all of the lessees of the flats in the building. An appeal by the landlord was allowed by the Central London County Court. Dr Duval then appealed, successfully, to the Court of Appeal. The landlord now appeals to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Kitchin gives the sole judgment, with which Lady Hale, Lord Carnwath, Lady Black and Lord Sales agree. The starting point is to construe the terms of the leases in context [25]. There are certain aspects of the background which are highly relevant. First, each lease is a long term contract and was acquired for a substantial premium [27]. Secondly and importantly, the parties would have appreciated that over the lifetime of the lease it would inevitably be necessary for works to be carried out to each flat [28]. Thirdly, the parties would have understood that routine improvements and modifications would be unlikely to impinge on the other lessees, or affect adversely the wider structure or fabric of the building, and that it would be entirely sensible for the landlord to be in a position to permit such works from time to time [29]. Fourthly, the parties must have appreciated the desirability of the landlord retaining not just the reversionary interest in the flats but also the rights in possession of the common parts of the building. Similarly, the parties must have appreciated the important and active role the landlord would play in managing the building and fulfilling its obligations under each lease [30]. Clauses 2.6 and 2.7 are directed at different kinds of activity. Clause 2.6 is concerned with routine improvements and alterations by a lessee to his or her flat, these being activities that all lessees would expect to be able to carry out, subject to the approval of the landlord. By contrast, clause 2.7 is directed at activities in the nature of waste, spoil or destruction which go beyond routine alterations and improvements and are intrinsically such that they may be damaging to or destructive of the building. This concept of waste, spoil or destruction should also be treated as qualifying the covenants not to cut, maim or injure referred to in the rest of the clause. In the context of this clause these words do not extend to cutting which is not itself destructive and is no more than incidental to works of normal alteration or improvement, such as are contemplated under clause 2.6. This interpretation is supported by F W Woolworth and Co Ltd v Lambert [1937] 1 Ch 37 [32]. It must also be remembered that the landlord is subject to other restrictions on its ability to license alterations to a lessees flat. First, each lessee enjoys the benefit of a covenant for quiet enjoyment [33]. Secondly, the landlord must not derogate from its grant [34]. Thirdly, each of the lessees is entitled to be protected against nuisance [35]. Finally, the landlord has covenanted with the lessee in the terms of clause 3 of the lease, which includes, for example, a covenant to maintain the structure of the building [36]. The critical question is whether the landlord can license structural work which falls within the scope of clause 2.7 and which would otherwise be a breach of that clause. Clause 3.19 does not say expressly that the landlord cannot give a lessee permission to carry out such work, so it must be considered whether this is nevertheless implicit in clause 3.19 [43]. It is well established that a party who undertakes a contingent or conditional obligation may, depending upon the circumstances, be under a further obligation not to prevent the contingency from occurring or from putting it out of his power to discharge the obligation if and when the contingency arises [44]. The principle is well illustrated by cases involving breaches of contracts to marry, and implied terms can arise from it [45 50]. There is an implied term in Dr Duvals lease: a promise by the landlord not to put it out of its power to enforce clause 2.7 in the leases of other lessees by licensing what would otherwise be a breach of it [52]. That necessarily follows from a consideration of the purpose of the covenants in clauses 2 and 3.19 and the content of the obligations in clause 3.19. Clause 2.7 is an absolute covenant and, under clause 3.19, the complainant lessee is entitled, on provision of security, to require the landlord to enforce it as an absolute covenant. It would not give practical content to the obligation if the landlord had the right to vary or modify the absolute covenant or to authorise what would otherwise be a breach of it [53 55]. Further, it would be uncommercial and incoherent to say that clause 3.19 can be deprived of practical effect if the landlord manages to give a lessee consent to carry out work in breach of clause 2.7 before another lessee makes an enforcement request and provides the necessary security. The parties cannot have intended that a valuable right in the objecting lessees lease could be defeated depending upon who manages to act first, the landlord or that lessee [57]. Clause 2.7 is directed at works which go beyond routine alterations and improvements and are intrinsically such that they may be damaging to or destructive of the building. It is entirely appropriate that works of the kind Mrs Winfield wished to carry out should require the consent of the other lessees, including Dr Duval [59].
The issue in this case is what is meant by the word violence in section 177(1) of the Housing Act 1996. Is it limited to physical contact or does it include other forms of violent conduct? Under section 193 of the 1996 Act, where a local housing authority are satisfied that an applicant is homeless and did not become homeless intentionally, they must make accommodation available for the applicant, unless they refer the application to another local housing authority. Section 175(1) provides that a person is homeless if he has no accommodation available for his occupation. Section 175(3) provides that a person shall not be treated as having accommodation unless it is accommodation which it would be reasonable for him to continue to occupy. Section 177(2) states that in determining whether it is reasonable for a person to continue to occupy accommodation, regard may be had to the general circumstances prevailing in relation to housing in the local housing authority district. Section 177(1) states that it is not reasonable for a person to continue to occupy accommodation if it is probable that this will lead to domestic violence or other violence against him or other members of his household. The effect of section 177(1), which has been called a pass porting provision, is that a person who is at risk of the violence to which it applies is automatically homeless, however reasonable it might in other respects be for her to remain in the accommodation. Questions of local housing conditions or shortages do not come into it. Another important consequence of section 177(1) is that the person cannot be treated as intentionally homeless. Section 198 provides that one of the conditions for referral to another local housing authority is that neither the applicant nor other members of his household will run the risk of domestic violence in the other district. In the case of Danesh v Kensington and Chelsea Royal London Borough Council [2006] EWCA Civ 1404, [2007] 1 WLR 69, the Court of Appeal held that violence in the context of section 198 involved some sort of physical contact, and the word violence on its own did not include threats of violence or acts or gestures, which lead someone to fear physical violence. In August 2008, the Appellant left the matrimonial home in which she lived with her husband, taking her two young children with her, and sought the help of the local housing authority. In interviews with housing officers, she complained of her husbands behaviour, which included shouting in front of the children, and stated that she was scared that if she confronted him he might hit her. The officers decided that she was not homeless as her husband had never actually hit her or threatened to do so. On a review, the panel noted that the root cause of her homelessness was not that she had fled after a domestic incident. The panel believed the probability of domestic violence to be low. They concluded that it was reasonable for her to continue to occupy the matrimonial home. The Respondent local authority accepted that the housing officers and review panel had applied the Danesh meaning when deciding that the appellant was not homeless within the meaning of the 1996 Act. The Supreme Court unanimously allows the appeal and sends the case back to be decided again by the local housing authority. Lady Hale gives the leading judgment. The Court holds that domestic violence in section 177(1) of the 1996 Act includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm. Physical violence is not the only natural meaning of the word violence. Another natural meaning is strength or intensity of emotion; fervour, passion. [19] By the time of the 1996 Act, both international and national governmental understanding of the term domestic violence had developed beyond physical contact. There is certainly no doubt that the understanding of domestic violence has moved on now, as demonstrated by the definitions used in a 2005 Home Office publication Domestic Violence: A National Report and in the 2006 Homelessness Code of Guidance for Local Authorities. [20] [24] Violence is not a term of article It is capable of bearing several meanings and applying to many different types of behaviour. These can change and develop over time. The essential question is whether an updated meaning is consistent with the statutory purpose. The purpose is to ensure that a person is not obliged to remain living in a home where she, her children or other members of her household are at risk of harm. A further purpose is that the victim of domestic violence has a real choice between remaining in her home and seeking protection from the criminal or civil law and leaving to begin a new life elsewhere. [27] The purpose of the legislation would be achieved if the term domestic violence were interpreted in the same sense in which it is used by the President of the Family Division, in his Practice Direction (Residence and Contact Orders: Domestic Violence) (No 2) [2009] 1 WLR 251, para 2, suitably adapted to the forward looking context of sections 177(1) and 198(2) of the Housing Act 1996: Domestic violence includes physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may give rise to the risk of harm. [28] Lord Rodger could see no reason why Parliament would have intended the position to be any different where someone will be subjected to deliberate conduct, or threats of deliberate conduct, that may cause her psychological, as opposed to physical, harm. To conclude otherwise would be to play down the serious nature of psychological harm. [46] Lord Brown indicated his very real doubts that Parliament intended domestic violence to extend beyond the limits of physical violence but did not feel sufficiently strongly as to the proper outcome of the appeal to carry these doubts to the point of dissent. [48], [60].
Mrs Maryam Rajavi is a dissident Iranian politician, resident in Paris. She has close links with Iranian opposition organisations, including Mujahedin e Khalq, which was formerly a proscribed terrorist organisation but is now non violent. In 1997, the Home Secretary excluded Mrs Rajavi from the UK on the ground that her presence would not be conducive to the public good for reasons of foreign policy and in light of the need to take a firm stance against terrorism. That exclusion remains in force. In December 2010, Lord Carlile of Berriew, together with two other members of the House of Lords, asked the Home Secretary for a meeting to discuss lifting the exclusion to enable Mrs Rajavi to address meetings in the Palace of Westminster. The Home Secretary sought the advice of the Foreign Office. She replied in February 2011 stating that she had concluded that Mrs Rajavis admission to the UK would not be conducive to the public good. A further letter of May 2011, written in response to a letter before action from Lord Carlile and other members of the House of Lords, claimed that Articles 9 and 10 of the European Convention on Human Rights were not engaged but that the decision was in any event justified and proportionate. Lord Carlile and other members of the House of Lords launched judicial review proceedings in May 2011, arguing that the decision contravened their freedom of belief and expression rights under Articles 9 and 10. Mrs Rajavi herself later joined as a claimant. The Home Secretary issued second and third decisions in October 2011 and January 2012, supported by evidence from a Foreign Office official, stating that lifting the exclusion would cause significant damage to the UKs interests in relation to Iran and place British people and property in Iran and the region at risk. It is now common ground that Article 10 is engaged in relation to both Mrs Rajavi and the members of the House of Lords. But was the Home Secretarys decision justified and proportionate? Both the judge and the Court of Appeal held that it was. The claimants appealed to the Supreme Court. The Supreme Court dismisses the appeal by a majority of 4 1 (Lord Kerr dissenting). Lord Sumption delivers the leading judgment. The other three majority judgments give similar reasons, but with differences of nuance. Threshold argument The claimants argued that the Home Secretarys reasons were legally irrelevant, because they depended on the potential reaction of a foreign state which did not share the values embodied in the Convention. The Supreme Court unanimously rejects this argument. Irans reaction is plainly factually relevant to the decision, and the correct emphasis is on the democratic values to be protected, not the circumstances prompting the need for protection [14 18, 63, 144 146]. Was the Home Secretarys decision justified and proportionate? A predictive judgment of the executive about the likely reaction of a foreign country to a decision of the United Kingdom government is ordinarily entitled to a large measure of respect from the courts both (i) because the constitutional separation of powers assigns such judgments to the executive, and (ii) because the executive has greater institutional competence in this area by virtue of its greater specialised experience and the wider range of advice available to it. Where qualified rights under the Human Rights Convention are engaged, such as the Article 10 rights at issue in this case, the court must decide for itself whether they have been interfered with and if so whether the interference is justifiable. In this case, per Lord Sumption, the executives decision is rational, there are no grounds to challenge the good faith or the evidential base of the decision, and the Secretary of State had committed no error of principle, nor had she underrated the value of Article 10 rights or overstated the risk [19 47, 51]; per Lord Neuberger, the Home Secretarys decision was proportionate and the Article 10 rights did not outweigh the risks she had identified [70 74]; per Lady Hale, on the basis of evidence now some years old, it had not been shown that the article 10 right claimed was sufficiently important to put at risk the UKs fragile but imperative relationship with Iran [98 109]; and per Lord Clarke, there was no evidence before the court permitting it to doubt the strength of the Home Secretarys reasons [111 117]. Accordingly, although the Court of Appeal was wrong to approach the issue on the usual domestic judicial review grounds, the appeal should be dismissed. Lord Kerr would have allowed the appeal. The courts will accord respect to the executives assessment of the risks and consequences of Mrs Rajavis being admitted to the UK, though it is not required to frank that decision. However, it is for the court to assess the importance of the right infringed. The court is both competent and constitutionally required to make such an assessment and it would be an error to attach special weight to the Home Secretarys view on this point [150 162]. In this case, only the most compelling and pressing circumstances would justify a restriction on the right. The Home Secretary identifies solid countervailing factors, but the court should take into account the fact that these matters are unpredictable and that any retaliation would be perverse and rooted in anti democratic beliefs. The risks cannot be precisely identified but the interference with the Article 10 right is direct and immediate [163 180].
These appeals concern the obligations of insurance companies under various contracts of employers liability (EL) insurance. In particular, the appeals concern the scope of the insurers obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later. The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendants negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employees mesothelioma was caused by exposure to asbestos during a particular policy year. At first instance Burton J held that the policies should all be interpreted as having a causation wording. He therefore held that the liability trigger under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed. A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease contracted during the relevant insurance period); however they concluded that other policies (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma sustained or contracted at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employees body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an employee sustained or contracted mesothelioma during a particular policy period? The Supreme Court dismisses the insurers appeal by a 4 1 majority; Lord Phillips dissenting on the second issue. Lord Mance gives the main judgment. To resolve the meaning of the EL policies it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more generally [19]. Several features point the way to the correct construction. First, the wordings of the policies on their face require the course of employment to be contemporaneous with the sustaining of the injury [20]. Second, the wordings demonstrate a close link between the actual employment undertaken during each period and the premium agreed by the parties for the risks undertaken by the insurers in respect of that period. Third, on the insurers case there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to disease or injury in another later period [24]. Fourth, on the insurers case employers would be vulnerable to any decision by the insurers not to renew the policy. A decision not to renew might arise from the employers complying with their duty to disclose past negligence upon any renewal. Employers who discovered that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease would have such a duty. The insurers could then simply refuse any renewal or further cover [25]. Fifth, the way most of the policies deal with extra territorial issues throws doubt on any suggestion that the wordings are so carefully chosen that a court should stick literally to whatever might be perceived as their natural meaning [28]. Section 1 of the Employers Liability Compulsory Insurance Act 1969 also points the way to the correct interpretation. This states that every employer shall insure, and maintain insuranceagainst liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment. In order to give proper effect to the protective purpose of that legislation, the Act requires insurance on a causation basis [47]. There is no difficulty in treating the word contracted as looking to the causation of a disease, rather than its development or manifestation. The word contracted used in conjunction with disease looks to the initiating or causative factor of the disease [49]. While the word sustained may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later [50]. In relation to the second issue, the question is whether the EL policies cover employers liability for mesothelioma arising under the special rule in Fairchild/Barker [71]. Under that rule the law accepts a weak or broad causal link between the employers negligence and the employees mesothelioma. When construing the EL policies the concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule [74]. The purpose of the EL policies was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies [88]. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurers obligation to indemnify the employer [74]. Lord Phillips dissents on the second issue. The special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. This conclusion is not affected by section 3 of the Compensation Act 2009, which did not alter the jurisprudential basis of the Fairchild/Barker approach [132] [133].
The principal issue in this appeal concerns the role, if any, of the courts of England and Wales (including the Supreme Court of the United Kingdom) in the legislative process of the island of Sark, part of the Crown Dependency of the Bailiwick of Guernsey. The Channel Islands are not part of the United Kingdom but as Crown Dependencies enjoy a unique relationship with the United Kingdom through the Crown, in the person of the Sovereign. The UK government is responsible for their international relations and for their defence. The UK Parliament has power to legislate for the Islands but Acts of Parliament do not extend to the Islands automatically. Usually, the Act gives power to extend the application of the Act to the Islands by Order in Council, which will be preceded by consultation. For the most part the Islands legislate for themselves. The States of Guernsey have power to legislate for the whole Bailiwick, including the islands of Alderney and Sark, and the Human Rights (Bailiwick of Guernsey) Law 2000 applies throughout the Bailiwick. Sark has its own legislature (the Chief Pleas), which generally legislates by passing a Projet de Loi. This then requires Royal Assent, which is given by Order in Council on the recommendation of a Standing Committee of the Privy Council dealing with the affairs of Jersey and Guernsey. Reform to the constitution of Sark had been made by the Reform (Sark) Law 2008 (the 2008 Reform Law). The 2008 Reform Law was successfully challenged by the respondents, Sir David and Sir Frederick Barclay, on the ground that the dual role of the office of Seneschal, as President of the Chief Pleas and chief judge, was incompatible with article 6 of the European Convention on Human Rights (ECHR), in R (Barclay) v Lord Chancellor and Secretary of State for Justice [2010] 1 AC 464 (Barclay (No 1)). The Reform (Sark) (Amendment) (No 2) Law (the 2010 Reform Law) was enacted in response, removing the right of the Seneschal to serve as President or member of the Chief Pleas and making provisions for his office as chief judge. The respondents considered that these provisions were incompatible with the impartiality and independence of the judiciary, required by article 6 ECHR. The respondents applied to the Administrative Court of England and Wales for an order declaring that the Order in Council made on 12 October 2011, by which Royal Assent was given to the 2010 Reform Law, was unlawful because the 2010 Reform Law was incompatible with the ECHR. The Administrative Court granted the declaration. The appellants appealed to the Supreme Court on the ground that the Administrative Court had no jurisdiction to do so or, if it had, that the jurisdiction should not have been exercised. The Supreme Court unanimously allows the appeal and sets aside the declaration made by the Administrative Court. It holds that the courts of the United Kingdom do have jurisdiction judicially to review an Order in Council which is made on the advice of the Government of the United Kingdom acting in whole or in part in the interests of the United Kingdom. However, although the Administrative Court did therefore have jurisdiction to entertain the respondents claim, it should not have exercised it in this case. Lady Hale gives the substantive judgment, with which the other Justices all agree. It is not possible to state a general rule as to whether or not an Order made by Her Majesty in Council is amenable to judicial review in the courts of England and Wales, given the wide variety of circumstances in which such orders are made [28]. The Human Rights Act 1998 (the HRA) does not apply to Channel Islands legislation as it applies in the Channel Islands, and does not include an Order in Council made in exercise of the royal prerogative in the definition of primary legislation subject to the HRA. Otherwise the method by which the ECHR had been extended to the Channel Islands would be subverted. A challenge to Sark legislation on the ground of incompatibility with the ECHR should be brought in the Island courts under the Human Rights (Bailiwick of Guernsey) Law 2000, from which an appeal will ultimately lie to the Judicial Committee of the Privy Council. The courts of the Bailiwick are better placed to assess whether legislation strikes a fair balance between the protection of individual rights and the general interests of the community and the appropriate forum for this claim. The courts of England and Wales should not have entertained the challenge in Barclay (No 1) and will not do so in this case [27 39]. The appellants had gone further and argued that the courts of England and Wales have no jurisdiction judicially to review the process whereby the Privy Council gives Royal Assent to Island legislation. The fact that, unlike former colonies without legislatures in respect of which Orders in Council are made, Sark has a functioning legislature and its own system of laws and courts, is a very powerful reason why the courts of England and Wales should not interfere with the business of the people of Sark. It does not follow, however, that there is no jurisdiction to entertain a challenge in a more appropriate case [47]. It is the clear responsibility of the UK government in international law to ensure that the Islands comply with such international obligations as apply to them [48]. It is to be expected that any dispute will be decided by negotiation with the Island authorities but, if this proves impossible, a challenge could be made in the courts of England and Wales. The reality is that the appellants advise Her Majesty both in right of the Bailiwick of Guernsey and of Sark and in right of the UK, because of the UKs continuing responsibility for the international relations of the Bailiwick. They are legally accountable to the UK Parliament, and to the UK courts in an appropriate case, which this is not. The question of whether they might also be accountable to the courts of the Bailiwick is left open as it had not been argued [57].
Until 1 April 2013 central government operated a Council Tax Benefit (CTB) scheme whereby residents in local authority areas in England were granted relief from paying council tax on a means tested basis, for which the local authorities were reimbursed in full [4]. For the year 2013 2014, reimbursement to each local authority was fixed at 90% of the sum it had received in the previous year [6] and each local authority was required to devise its own Council Tax Reduction Scheme (CTRS) to provide relief from council tax to those whom it considered to be in financial need [7]. It was a requirement that each local authority consult interested persons on its CTRS in draft form before deciding on a final scheme: Paragraph 3(1)(c) of Schedule 1A of the Local Government Finance Act 1992 (added by Paragraph 1 of Schedule 4(1) to the Local Government Finance Act 2012) provides that Before making a scheme, the authority must consult such other persons as it considers are likely to have an interest in the operation of the scheme. The Respondent published a draft CTRS on 29 August 2012 under which it was proposed that the shortfall in central government funding would be met by a reduction in council tax relief of between 18% and 22% for all CTB claimants in Haringey other than pensioners [9 10]. The consultation document for Haringey residents explained the reduction in funding, and stated That means that the introduction of a local [CTRS] in Haringey will directly affect the assistance provided to everyone below pensionable age that currently receives [CTB]. There was no reference to other options for meeting the shortfall, for example by raising council tax, reducing funding to council services or deploying capital reserves [19]. The consultation document also included a questionnaire asking how the reduction in relief should be distributed as among CTB claimants [21]. Following the consultation exercise, the Respondent on 17 January 2013 decided to adopt a CTRS under which the level of council tax relief was reduced by 19.8% from 2012 2013 levels for all claimants other than pensioners and the disabled [14]. The Appellant is a resident of Haringey who until 1 April 2013 had been in receipt of full CTB, and thereafter had to pay 19.8% of full council tax. She was not originally a claimant in the judicial review proceedings which were brought by two other similarly circumstanced Haringey residents to challenge the Respondents consultation process. Underhill J dismissed their application for judicial review on 7 February 2013. One claimant, Ms Stirling, appealed to the Court of Appeal and that appeal was dismissed on 22 February 2013. Ms Stirling subsequently became ill and the Appellant was by consent substituted for the purposes of this appeal. Ms Stirling has since sadly died [3]. The Supreme Court unanimously allows the appeal and declares that the consultation exercise was unlawful [31]. However, it declines to order the Respondent to undertake a fresh consultation exercise because this would be disproportionate in the circumstances [33]. Lord Wilson (with whom Lord Kerr agrees) gives the main judgment. Lord Reed gives a concurring judgment. Lady Hale and Lord Clarke agree with both judgments. Lord Wilson considers that where a public authority has a duty to consult before taking a decision, whether such duty is generated by statute, as in this case, or arises as a matter of common law, the same common law requirements of procedural fairness will inform the manner in which the consultation should be conducted [23]. The requirements of a fair consultation are as summarised in the case of R v Brent London Borough Council, ex p Gunning, (1985) 84 LGR 168: First, that consultation must be at a time when proposals are still at a formative stage. Second, that the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third, that adequate time must be given for consideration and response and, finally, fourth, that the product of consultation must be conscientiously taken into account in finalising any statutory proposals. [25]. Fairness may require that interested persons be consulted not only upon the preferred option but also upon discarded options [27]. In this case, fairness demanded that the consultation document should briefly refer to alternative methods of absorbing the shortfall in government funding and to the reasons why the Respondent had concluded that they were unacceptable [29]. In fact, the purported consultation was premised on the assumption that the shortfall would be met by a reduction in council tax relief and no other option was presented [17, 18, 21]. Neither was it reasonably obvious to those consulted what other options there may have been and the reasons why such options had been discarded. Indeed, only an infinitesimal number of responses to the consultation (approximately 20 out of 1287 responses) alluded to other ways of meeting the shortfall. Therefore, the consultation exercise was unfair and unlawful [31]. However, it was not unlawful that the Respondent had failed to consult on the possible adoption of a Transitional Grant Scheme announced by central government only 5 weeks before the completion of the draft CTRS consultation [32]. Lord Reed allows the appeal for slightly different reasons. In cases such as this where the duty to consult is imposed by statute, the scope of the duty varies according to the statutory context [36]. The purpose of this particular statutory duty was to ensure public participation in the local authoritys decision making process [38]; it was not to ensure procedural fairness as under the common law. Meaningful participation in these circumstances required that those consulted be provided with an outline of the realistic alternatives [39]. In the absence of specific statutory provision, reference to alternative options will be required where this is necessary in order for the consultees to express meaningful views on the proposals [40]. Lady Hale and Lord Clarke give a brief joint judgment agreeing with both Lord Wilson and Lord Reeds judgments [44].
The appellant (O) is a Nigerian woman aged 38. After arriving in the UK illegally in 2003, her claim for asylum or discretionary leave to remain in the UK was refused and her appeal was dismissed. She was charged with an offence of child cruelty, but absconded on bail. In 2007 she was arrested and charged with another offence, for which she was later convicted and imprisoned. She later pleaded guilty to the outstanding child cruelty charge, and was sentenced to 12 months imprisonment and made the subject of a recommendation for deportation. Upon her release from prison in August 2008, the respondent (the SSHD) detained O, first under para 2(1) of Schedule 3 to the Immigration Act 1971 (the 1971 Act) pending the making of a deportation order and then, once the deportation order was made, under para 2(3) of Schedule 3 to the 1971 Act pending deportation. O was detained at Yarls Wood Immigration Removal Centre until 6 July 2011, when she was released on bail. O has suffered from serious mental ill health, including episodes of self harm, and has been the subject of several medical reports. In 2008 she was diagnosed with a recurrent depressive disorder and an emotionally unstable personality disorder. In 2009 a consultant psychiatrist instructed by O recommended that she be transferred from Yarls Wood to hospital. Following a suicide attempt in March 2010, O was admitted to hospital but was subsequently discharged, the hospitals consultant psychiatrist concluding that her needs would be met adequately at Yarls Wood. In February 2011 a report on O was prepared by another clinical psychologist instructed by O (the Report). The Report concluded in particular that: O suffered from not only a depressive disorder but a severe form of post traumatic stress disorder; O could not access the necessary mental health services at Yarls Wood and that release from detention would greatly benefit her mental health; O needed a long term structured package of mental health services; O needed to be referred to a specialist trauma focussed clinic for phased treatment; and that such a referral was in accordance with the National Institute for Health and Care Excellence (NICE) guidelines. In the present proceedings, O challenges the lawfulness of the period of her detention from 22 July 2010 (and in particular from 4 March 2011, the date of the first review of Os detention following the SSHDs receipt of the Report) until 6 July 2011 (the date of her release on bail). The object of these proceedings is to secure a declaration that Os detention during this period was unlawful and an award of damages. In April 2012 Lang J refused permission for the claim to proceed and in July 2014 the Court of Appeal dismissed Os appeal. O now appeals to the Supreme Court. The Supreme Court unanimously dismisses Os appeal. Lord Wilson gives the leading judgment, with which the other Justices agree. This appeal requires the Court to consider the SSHDs policy relating to the detention of mentally ill persons pending deportation (the Policy) and the effect of any failure by the SSHD to apply that Policy, in the light of the Court of Appeals decision in R (Francis) [4]. The Policy obliges the SSHD to conduct monthly reviews of detention pending deportation [18]. Para 55.10 provides that those suffering from serious mental illness which cannot be satisfactorily managed within detention will normally be considered suitable for detention only in very exceptional circumstances, including for example where there is a risk of further offending or harm to the public [19]. In Os detention reviews between 4 March and 4 July 2011, only the briefest reference was made to the Report, and Os most recent diagnosis was incorrectly identified as being in March 2010 [24]. Although the Report was submitted to the SSHD expressly in support of Os application to challenge her deportation [22 23], on any view it bore some relevance to the Policy and should have been addressed properly in the detention reviews [25]. Therefore, as the Court of Appeal concluded (and the SSHD now accepts), the SSHD unlawfully failed to apply her Policy when deciding to continue to detain O between March and July 2011 [26 27]. The refusal to release O during this period was procedurally flawed [37]. Given that conclusion, this case does not afford the opportunity to consider the nature of the courts review of the legality of the SSHDs application of her Policy [28, 37]. The question is then how the SSHD would have reacted to the Report, had she applied her Policy correctly. It is for the Court to determine the meaning of the Policy for itself [28]. Satisfactory is a word which catches the various different factors to which the SSHD may be required to have regard. The discussion of satisfactory management in R (Das) is approved, save that treatment (available to a detainee only if released) which would be likely to effect a positive improvement in his or her condition might be relevant; the burden would be on the SSHD to inquire as to its availability. While satisfactory does not mean optimal management, a narrow construction of management, meaning no more than control of the illness would lack principled foundation [30]. The Policy mandates a practical inquiry by the SSHD, in the light of the context of immigration detention [31]. The SSHD should have made inquiries and obtained answers to a number of questions as to whether, in the light of the Report, Os illness could satisfactorily be managed at Yarls Wood [32 33]. The Court cannot predict the result of those inquiries, most of which seem never to have been made. The SSHD would also have had to consider whether there were very exceptional circumstances which nonetheless justified Os detention. Even on the assumption that the proper application of the Policy should in due course have led the SSHD to direct Os release, it is unrealistic to consider that the conditions necessary for her release would have been in place prior to 6 July 2011, when she was released on bail [34 35]. Were Os claim for judicial review permitted to proceed, it would result in no more than a declaration that her detention was unlawful and an award of only nominal damages [38 40]. The lower courts were entitled to refuse Os application for permission [50]. R (Francis) R (Francis) was wrongly decided. The power to detain conferred by para 2(1) of Schedule 3 to the 1971 Act (pending the making of a deportation order) and by the words in parenthesis in para 2(3) (pending deportation) is a mandate subject to two conditions: first, there must be a prospect of deportation within a reasonable time; and second, the SSHD must consider in accordance with the Policy whether to exercise the power to detain. If either condition is not satisfied, the mandate to detain ceases and detention becomes unlawful [42 49].
Under sections 793 797 of the Companies Act 2006 (the Act), a company can issue a statutory disclosure notice calling for information about persons interested in its shares. The court can restrict the exercise of rights attaching to shares in the event of non compliance. JKX Oil & Gas plc, like many companies, has a provision in its company articles (article 42) empowering the board to impose such restrictions where a statutory disclosure notice has not been complied with. Article 42 provides that the board is entitled to treat a response to a disclosure notice as non compliant where it knows or has reasonable cause to believe that the information provided is false or materially incorrect. In 2013, the directors of JKX perceived that it had become the target of a so called corporate raid by two minority shareholders, Eclairs (controlled by trusts associated with Igor Kolomoisky and by Gennadiy Bogolyubov) and Glengary (controlled by Alexander Zhukov and Mr Ratskevyich). JKX issued disclosure notices between 20 26 March and on 13 May, requesting information from Eclairs, Glengary and Messrs. Kolomoisky, Bogolyubov, Zhukov, and Ratskevyich about the number of shares held, their beneficial ownership, and any agreements or arrangements between the persons interested in them. The responses admitted the existence of interests in the shares but denied that there was any agreement or arrangement. On 23 May, Eclairs publicly invited shareholders to oppose the resolutions proposed at the forthcoming AGM on 5 June, including resolutions for the re election of certain directors. At a meeting on 30 May, the JKX board considered that there were agreements or arrangements between the addressees of the disclosure notices which had not been disclosed in the responses. It resolved to exercise the powers under article 42 to issue restriction notices in relation to the shares held by Eclairs and Glengary, suspending their right to vote at general meetings and restricting the right of transfer. Eclairs and Glengary challenged the restriction notices, relying on the proper purpose rule at s171(b) of the Act (a director must only exercise powers for the purposes for which they are conferred). Mann J held that the boards decision was invalid. The article 42 power could be exercised only to provide an incentive to remedy the default or a sanction for failing to do so. The board had reasonable cause to believe that there was an agreement or arrangement between the addressees. But the boards purpose was to influence the fate of the resolutions at the AGM. The Court of Appeal allowed the appeal by a majority, holding that the proper purpose rule did not apply to article 42 because the shareholders only had to answer the questions more fully in order to avoid the imposition of restrictions on the exercise of their rights, and because the application of the rule was inappropriate in the course of a battle for control. The Supreme Court allows the appeals by Eclairs and Glengary, holding that the proper purpose rule applies to the exercise of the power under article 42, and that the directors of JKX acted for an improper purpose. The judgment is given by Lord Sumption, with whom Lord Hodge agrees. Lord Mance (with whom Lord Neuberger agrees) agrees that the appeals should be allowed, but prefers to express no view on aspects of the reasoning. Lord Clarke agrees, but prefers to defer a final conclusion on those aspects until they arise for decision and have been the subject of full argument. The proper purpose rule is concerned with abuse of power: a company director must not, subjectively, act for an improper reason. [14 16] Where the instrument conferring a power is silent as to its purpose, this can be deduced from the mischief of the provision, its express terms and their effect, and the courts understanding of the business context. [30] Under article 42 in this case, the power to restrict the rights attaching to shares is ancillary to the statutory power to call for information under s 793. Article 42 has three closely related purposes: (i) to induce a shareholder to comply with a disclosure notice; (ii) to protect the company and its shareholders against having to make decisions about their respective interests in ignorance of relevant information; and (iii) as a punitive sanction for a failure to comply with a disclosure notice. Seeking to influence the outcome of shareholders resolutions or the companys general meetings is no part of those proper purposes. [31 33] The proper purpose rule applies to article 42. It is irrelevant whether Eclairs and Glengary could have averted the imposition of restrictions on their rights as shareholders by giving different answers to the questions. The proper purpose rule is the principal means by which equity enforces directors proper conduct, and is fundamental to the constitutional distinction between board and shareholder. A battle for control of the company is probably the context where the proper purpose rule has the most valuable part to play. [35 40] Lord Sumption and Lord Hodge consider that where the directors have multiple concurrent purposes, the relevant purpose or purposes are those without which the decision would not have been made. If that purpose or those purposes are improper, the decision is ineffective. [17 24] Mann J found that four of the six directors were concerned only with the effect of the restriction notices on the outcome of the general meeting. They acted for an improper purpose. [41, 25] Lord Neuberger, Lord Mance and Lord Clarke agree that the appeals should be allowed, but decline to express a concluded view on the application of a but for test to the proper purpose rule. [46 55]
By October 2003 pressure groups had complained that coverage by the British Broadcasting Corporation [BBC] of the Israeli Palestinian conflict was not impartial [6]. In November 2003 Mr Malcolm Balen was appointed by the BBC to produce a report on the quality and impartiality of its coverage of Middle Eastern affairs [the Balen Report], which was intended to be an internal briefing document [6 7]. In November 2004 the Balen Report was considered by the BBCs Journalism Board, which consequently commissioned a paper called Taking Forward BBC Coverage of the Middle East [9]. A number of internal changes resulted, including development of training, auditing of on air use of experts and the creation of a post of Middle East Editor [10]. On 8 January 2005, the Appellant, Mr Steven Sugar, made a request pursuant to s.1 of the Freedom of Information Act 2000 [FOIA] for disclosure of the Balen Report [12]. The BBC is designated as a public authority in FOIA only to a limited extent, namely in respect of information held for purposes other than those of journalism, art or literature [1]. The BBC refused the request on the basis that it held the Balen Report for purposes of journalism and thus it lay beyond the scope of FOIA [12]. In March 2005 Mr Sugar applied to the Information Commissioner pursuant to s.50(1) of FOIA for a decision whether the BBC had determined his request within the terms of FOIA. The Commissioner concluded that the BBC had lawfully rejected his request as, even if the Balen Report had also been held for non journalistic purposes, it continued to lie beyond the scope of FOIA because the journalistic purpose was manifestly dominant [13]. The Commissioner also observed that BBC was not a public authority for the purposes of FOIA and thus Mr Sugar had no right of appeal under s.57 of FOIA to the Information Tribunal [15]. On 30 December 2005 Mr Sugar nevertheless appealed to the Tribunal, which determined it had jurisdiction. The House of Lords upheld its jurisdiction decision (in Sugar v BBC [2009] UKHL 9) since, even in relation to a request for information which was held to lie outside the designation, the BBC remained a public authority for the purposes of FOIA [20]. Before the Tribunal, Mr Sugar contended that even if the information is held only partly for purposes other than those of journalism, the information is within the scope of FOIA [4]. The BBCs primary contention was that where information is held for the purposes of journalism, that information is beyond the scope of FOIA even if it is also held even predominantly held for purposes other than journalism [3]. The BBCs secondary contention was that the information is within the scope of FOIA only if the purposes other than journalism are the dominant purpose for which it is held [5]. On 29 August 2006 the Tribunal accepted the BBCs secondary contention but held that the Balen Report was within the scope of FOIA as, once the report had been placed before the Journalism Board, it was held predominantly for purposes other than journalism [21]. On 2 October 2009 Mr Justice Irwin allowed the BBCs appeal on the basis that the BBC had no obligation to disclose information that the BBC held to any significant extent for the purposes of journalism and further that, even if the test was one of dominant purpose, the Tribunal had erred in finding that the Balen Report had been held predominantly for purposes other than those of journalism [22]. The Court of Appeal dismissed Mr Sugars appeal, rejecting the dominant purpose construction and approving the BBCs primary construction of the designation [23]. Sadly Mr Sugar died in January 2011. The court appointed his widow, Ms Fiona Paveley, to represent his estate in this appeal [4]. The Supreme Court unanimously dismisses the appeal. Lord Phillips, Lord Walker, Lord Brown and Lord Mance dismiss the appeal on the basis that, even if information is held only partly for the purposes of journalism, art or literature, it is outside the scope of FOIA. Lord Wilson would have dismissed it on the basis that, if information is held predominantly for the purposes of journalism, art or literature, it is outside the scope of FOIA and that the Balen Report was held predominantly for those purposes [57]. Section 7(1) of FOIA provides that, where a public authority is listed in Schedule 1 of FOIA only in relation to information of a specified description, nothing in Parts I to V of FOIA is to apply to any other information held by the authority [31; 69]. Under Part VI of Schedule I to FOIA the BBC is designated as a public authority only in respect of information held for purposes other than those of journalism, art or literature [1]. At the material time BBC held the Balen Report for the purposes of journalism. The issue is therefore how the phrase purposes other than those of journalism should be construed [2]. Four possible categories of information held by the BBC exist: (1) information held exclusively for purposes other than those of journalism [or art or literature]; (2) information held predominantly, but not exclusively, for non journalistic purposes; (3) information held predominantly, but not exclusively, for journalistic purposes and (4) information held exclusively for journalistic purposes [73]. The Appellant argued that the BBCs immunity under Part VI of Schedule I to FOIA was limited to information in category (4). The BBCs primary contention, upheld by Irwin J and the Court of Appeal, was that the BBC had to disclose information only in category (1) subject to particular exemptions under other provisions of FOIA [73]. The BBCs secondary contention, adopting a dominant purpose construction, was that only information in categories (1) and (2) had to be disclosed, subject to the exemptions. The court holds that the Court of Appeal was correct in deciding that once it is established that the information sought is held by the BBC to any significant degree for the purposes of journalism, it is exempt from production under FOIA, even if the information is also held for other purposes [67; 75; 104; 111]. The legislative purpose of FOIA is to promote an important public interest in access to information about public bodies [76]; but in this case there is a powerful public interest that the public service broadcasters, no less than the commercial media, should be free to gather, edit and publish news and comment on current affairs without the inhibition of an obligation to make public disclosure of or about their work [78]. The purpose of the designation would have failed if the coexistence of other non journalistic purposes resulted in the loss of immunity [78]. The real emphasis of the words is on what is not disclosable, namely material held for the purposes of the BBCs broadcasting output [79]. The Tribunal should have some regard to the directness of purpose, considering the proximity between the subject matter of the request and the BBCs journalistic activities and output [83]. The purpose of the designation is to protect the BBC from interference with its functions in broadcasting journalism, art and literature [64] and consequently a purposive construction of it would prevent disclosure that would risk such interference [65]. Information should be found to be held for the purposes of journalism, art or literature only if an immediate object of holding the information is to use it for one of those purposes [67]. As to the contention on behalf of the Appellant that this approach would violate Article 10 of the European Convention on Human Rights [ECHR], the Court noted the well established body of jurisprudence of the European Court of Human Rights that defines the nature of the right under Article 10(1) as prohibiting a government from restricting a person from receiving information that others are willing to impart to him but does not construe the article as imposing positive obligations on a State to disseminate information of its own motion [89]. The jurisprudence relied upon by the Appellant falls far short of establishing that an individuals freedom to receive information is interfered with whenever a public authority acting consistently with domestic legislation refuses access to documents [94]. Article 10 creates no general right to freedom of information [94] and consequently no interference with Mr Sugars ECHR rights [97]. Even if there had been such a right, it would be open to the State to legislate a blanket exclusion of any requirement to disclose information held for the purposes of journalism [98].
Internet protocol television (IPTV) is a way of delivering TV or video content over the internet. IPTV can be closed circuit or over the top. The appellants (PCCM) are a substantial group of companies based in Hong Kong which has provided a closed circuit IPTV service in Hong Kong since 2003. Since 2006 the service has been marketed and delivered under the name NOW TV. By 2012, NOW TV had become the largest pay TV operator in Hong Kong, with around 1.2 million subscribers, covering over half the households in Hong Kong. People in the UK cannot receive this closed circuit service, and no subscribers for its Hong Kong IPTV service have been recruited in the UK. However, a number of Chinese speakers permanently or temporarily resident in the UK in 2012 were aware of the NOW TV service through exposure to it when residing in or visiting Hong Kong, or from viewing NOW TV programmes on YouTube and other websites in the UK. The appellants have been considering expanding its NOW TV subscription service internationally since 2009. In June 2012 it launched a NOW player app in the UK on its website and via the Apple Store, targeted at the Chinese speaking population in the UK. Meanwhile, in March 2012, the respondents (Sky) announced that they intended to launch a new over the top IPTV service under the name NOW TV. The service was launched in beta form in mid July 2012. In April 2012, PCCM began proceedings seeking to prevent Sky from using the name NOW TV in connection with Skys IPTV service in the UK on the grounds that the use of the name amounted to passing off. The law of passing off prevents one trader from passing off its goods or services as the goods and services of another. At first instance, the judge found that a substantial number of Chinese speakers permanently or temporarily resident in the UK were acquainted with PCCMs NOW TV service. He also found that PCCMs NOW TV service had acquired a reputation amongst members of the Chinese speaking community in the UK and that this reputation was modest but more than de minimis. However he held that the key question was whether the viewers of PCCMs programmes in the UK were customers for its service and that, for the purposes of passing off, it was not enough for PCCM to establish that it had a reputation among a significant number of people in this country if it had no goodwill in this country. This led him to dismiss PCCMs claim. PCCMs appeal to the Court of Appeal was dismissed and PCCM now appeals to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Neuberger (with whom all the other Justices agree) delivers the judgment of the Court. Courts in the UK have consistently held that it is necessary for a claimant to have actual goodwill, in the sense of a customer base, in this jurisdiction before it can satisfy this requirement for the law of passing off [20 25]. Where the claimants business is abroad, people who are in the jurisdiction, but who are not customers of the claimant in the jurisdiction, will not do, even if they are customers of the claimant when they go abroad [47 48]. An examination of the approach in other Common Law jurisdictions suggests that the Singapore courts follow the approach of the UK courts, whereas the Courts of Australia and South Africa seem to favour the approach supported by PCCM; there does not appear to be a clear trend in the common law courts outside the UK away from the approach taken in the UK cases [50]. Goodwill in the context of passing off is territorial in nature and an English court has to consider the factual position in the UK. It is clear that mere reputation is not enough; the claimant must have significant goodwill in the form of customers in the jurisdiction. However, it is not necessary to have an establishment or office in this country [52 55]. The law of passing off involves striking a balance between the public interest in free competition and the protection of the trader against unfair competition; if it were enough for a claimant merely to establish reputation in the jurisdiction, without a significant number of people who are customers within the jurisdiction to maintain a passing off action, this would tip the balance too much in favour of protection [61 62], particularly in this modern era of global electronic communication [63]. It follows that PCCMs appeal should be dismissed. Its business is based in Hong Kong, and it has no customers, and therefore no goodwill, in the United Kingdom. The people in the UK who get access to PCCMs NOW TV programmes via the websites are not PCCM customers in the UK, because there is no payment involved and the availability of PCCMs product was intended to promote PCCMs Hong Kong business; as such it amounted to advertising in the UK which is insufficient to maintain a claim in passing off [67].
This appeal arises out of proceedings for financial remedies following a divorce between Michael and Yasmin Prest. The appeal concerns the position of a number of companies belonging to the Petrodel Group which were wholly owned and controlled by Michael Prest, the husband. One of the companies was the legal owner of five residential properties in the UK and another was the legal owner of two more. The question on this appeal is whether the court has power to order the transfer of these seven properties to the wife given that they legally belong not to the husband but to his companies. Under Section 24(1)(a) of the Matrimonial Causes Act 1973 (the 1973 Act), the court may order that a party to the marriage shall transfer to the other partysuch property as may be so specified, being property to which the first mentioned party is entitled, either in possession or reversion. In the High Court, Moylan J concluded that there was no general principle that entitled him to reach the companies assets by piercing the corporate veil. He nevertheless concluded that a wider jurisdiction to pierce the corporate veil was available under section 24 of the 1973 Act. In the Court of Appeal, three of the companies challenged the decision on the ground that there was no jurisdiction to order their property to be conveyed to the wife. The majority in the Court of Appeal agreed and criticised the practice of the Family Division of treating assets of companies substantially owed by one party to a marriage as available for distribution under section 24 of the 1973 Act. The Supreme Court unanimously allows the appeal by Yasmin Prest and declares that the seven disputed properties vested in the companies are held on trust for the husband on the ground (which was not considered by the courts below) that, in the particular circumstances of the case, the properties were held by the husbands companies on a resulting trust for the husband, and were accordingly property to which the [husband] is entitled, either in possession or reversion. Lord Sumption gives the leading judgment and Lord Neuberger, Lady Hale, Lord Clarke and Lord Walker add concurring judgments. There are three possible legal bases on which the assets of the companies might be available to satisfy the lump sum order against the husband: (1) that this is a case where, exceptionally, the Court may disregard the corporate veil in order to give effective relief; (2) that section 24 of the 1973 Act confers a distinct power to disregard the corporate veil in matrimonial cases; or (3) that the companies hold the properties on trust for the husband, not by virtue of his status as sole shareholder and controller of the company, but in the particular circumstances of the case [9]. After surveying the authorities, the Court holds that there is a principle of English law which enables a court in very limited circumstances to pierce the corporate veil. It applies when a person is under an existing legal obligation or liability or subject to an existing legal restriction which he deliberately evades or whose enforcement he deliberately frustrates by interposing a company under his control. The court may then pierce the corporate veil but only for the purpose of depriving the company or its controller of the advantage which they would otherwise have obtained by the companys separate legal personality. In most cases the facts necessary to establish this will disclose a legal relationship between the company and its controller giving rise to legal or equitable rights of the controller over the companys property, thus making it unnecessary to pierce the veil. In these cases, there is no public policy imperative justifying piercing the corporate veil. But the recognition of a small residual category of cases where the abuse of the corporate veil to evade or frustrate the law can be addressed only by disregarding the legal personality of the company is consistent with authority and long standing principles of legal policy. [35] The principle has no application in the present case because the husbands actions did not evade or frustrate any legal obligation to his wife, nor was he concealing or evading the law in relation to the distribution of assets of the marriage upon its dissolution [36]. Some of the concurring judgments reserve the possibility of a somewhat wider test, but not in respects which affect its application to the present case. The Court rejects the argument that a broader principle applies in matrimonial proceedings by virtue of section 24(1)(a) of the 1973 Act. The section invokes concepts of the law of property with an established legal meaning which cannot be suspended or taken to mean something different in matrimonial proceedings [37]. Nothing in the statutory history or wording of the 1973 Act suggests otherwise [86 9]. General words in a statute are not to be read in a manner inconsistent with fundamental principles of law unless this result is required by express words or necessary implication [40]. The trial judges reasoning cut across the statutory scheme of company and insolvency law which are essential for protecting those dealing with companies [41]. It follows that the only basis on which the companies could be ordered to convey properties to the wife is that they belong beneficially to the husband, by virtue of the particular circumstances in which the properties came to be vested in them [43]. After examining the relevant findings about the acquisition of the seven disputed properties, the Court finds that the most plausible inference from the known facts was that each of the properties was held on resulting trust by the companies for the husband. The trial judge found that the husband had deliberately sought to conceal the fact in his evidence and failed to comply with court orders with particular regard to disclosing evidence [4]. Adverse influences could therefore be drawn against him. [45]. The Court inferred that the reason for the companies failure to co operate was to protect the properties, which suggested that proper disclosure would reveal them to beneficially owned by the husband [47]. It followed that there was no reliable evidence to rebut the most plausible inference from the facts [49 51].
The facts of this case were extraordinary and tragic. On 2 October 2007, a 26 year old Polish care worker, Magda Pniewska, was walking home from a nursing home through a car park in New Cross, South London. She was on the telephone to her sister when she was shot in the head and killed. The shot was fired in an exchange of fire in the car park between two gunmen, B and Mr Gnango, neither of whom had been aiming at Magda. They had been shooting at each other. Scientific evidence showed that the single bullet to Magdas head had come from Bs and not Mr Gnangos gun. B was clearly guilty of murder under the doctrine of transferred malice. B however was never caught. Mr Gnango was charged with and convicted of murder following trial aged 17. On his appeal, the Court of Appeal overturned his conviction. The Court held that joint enterprise liability for murder, the basis on which the Court considered his conviction to rest, could not arise on the facts. In considering the appeal by the Crown, the Supreme Court was asked to address the following question: If D1 and D2 voluntarily engage in fighting each other, each intending to kill or cause grievous bodily harm to the other and each foreseeing that the other has the reciprocal intention, and if D1 mistakenly kills V in the course of the fight, in what circumstances, if any, is D2 guilty of the offence of murdering V? The Supreme Court allows the appeal by a 6 1 majority (Lord Kerr dissenting) and restores Mr Gnangos conviction for murder. Lord Phillips and Lord Judge together give the leading judgment of the Court, with which Lord Wilson agrees. The trial judge had directed the jury that, in order to convict, they had to be satisfied that there was a plan or an agreement to have a shoot out, whether made beforehand or on the spur of the moment when Mr Gnango and B saw and fired at each other in the car park [23, 57]. This was an unequivocal direction that the jury could convict only if they were satisfied that Mr Gnango and B had formed a mutual plan or agreement to have a gunfight, i.e. to shoot at each other and be shot at, in which each would attempt to kill or seriously injure the other. The jurys verdict indicates that they were so satisfied. Accordingly, this is a proper basis for finding that Mr Gnango aided and abetted the murder of the deceased by aiding and abetting B to shoot at him (i.e. Mr Gnango) [55 60]. The trial judges direction had properly been given on application of the principle of transferred malice: where a defendant intends to kill or cause serious injury to one victim, V1, but accidentally kills another, V2, he will be guilty of the murder of V2 [16, 60]. The application of this principle in the circumstances accords with the demands of justice: Mr Gnango and B had chosen to indulge in a gunfight in a public place, each intending to kill or cause serious injury to the other, in circumstances where there was a foreseeable risk that this result would be suffered by an innocent bystander. It was a matter of fortuity which of the two fired what proved to be the fatal shot [61]. There is no applicable statutory or common law bar that precludes conviction of Mr Gnango on the basis that he aided and abetted Bs attempt to kill him (i.e. Mr Gnango) or cause him serious injury [51 52]. Further, the Court can see no reason why it should extend the common law to protect from conviction any defendant who is, or is intended to be, harmed by the crime that he commits or attempts to commit [53]. Finally, whether Mr Gnango is correctly described as a principal or an accessory to the murder of the deceased is irrelevant to his guilt [62]. This is not such a case where it is important to distinguish between the principal and the accessory: the offence is the same offence and the defendant is guilty of it [63]. Lord Brown gives a concurring judgment. He holds that the all important consideration here is that both Mr Gnango and B were intentionally engaged in a potentially lethal unlawful gunfight. The general public would be astonished and appalled if in those circumstances the law attached liability for the death only to the gunman who actually fired the fatal shot (which it would not always be possible to determine) [68]. Lord Brown characterises Mr Gnangos liability for murder as that not of an accessory but a principal: a direct participant engaged by agreement in unlawful violence specifically designed to cause and in fact causing death [71]. Lord Clarke gives a concurring judgment. He agrees with Lord Brown that Mr Gnango is guilty of murder not as an accessory but as a principal to an agreement to engage in unlawful violence specifically designed to cause death or serious injury, where death occurs as a result [81]. Lord Dyson gives a concurring judgment. He holds that the jury must have been satisfied that there was an agreement between Mr Gnango and B to shoot at each other and be shot at [103], and that Mr Gnango aided and abetted the murder of the deceased by encouraging B to shoot at him in the course of the planned shoot out [104]. Lord Kerr gives the sole dissenting judgment of the Court. He holds that the jury was not invited at any time during the trial judges summing up to address the question of whether the shared common purpose between Mr Gnango and B included the important element of the avowed aiding and abetting: the agreement to be shot at [115]. The exchange of fire between the gunmen was at least as likely to be the result of a sudden, simultaneously reached, coincident intention by them to fire at each other as it was to be the result of an agreement to shoot and be shot at [121]. If the jury did not conclude that there was an agreement to shoot and be shot at, there is no sound basis of accessory liability on which to uphold their verdict [126]. In any event, an agreement to shoot and be shot at does not necessarily amount to an intention to assist or encourage the other to shoot. The jury would have needed to receive specific directions which they did not about this vital component of aiding and abetting [123]. Further, Lord Kerr considers that there is no sound basis for holding that Mr Gnango is liable for murder as a principal, since he had not by his own act caused or contributed to the commission of the offence with the necessary mens rea [127, 130]. Accordingly, Lord Kerr would dismiss the appeal.
The Solicitors Act 1974 allows the Law Society to make rules requiring solicitors to maintain professional indemnity insurance. The rules made by the Law Society require such insurance to satisfy certain Minimum Terms and Conditions (MTC). The MTC prescribes a minimum figure for which solicitors must be insured for any one claim. It also permits the aggregation of claims in a number of circumstances including where the claims arise from similar acts or omissions in a series of related matters or transactions (Clause 2.5(a)(iv)) [1]. Midas International Property Development Plc sought to develop two holiday resorts, one in Turkey known as Peninsula Village and one in Marrakech, Morocco [3]. These were to be financed by private investors who would be granted security over the development land. A trust was set up for each development which either owned, or held a charge over, the development land. The developers solicitors were the initial trustees and the investors were the beneficiaries. The funds advanced by the investors were initially held by the solicitors in an escrow account. They were not to be released to the developers unless and until the value of the assets held by the trust was sufficient to cover the investment to be protected, applying a cover test set out in the trust deed [4]. For each investment, the developers solicitors opened a file, including a loan or purchase agreement between the investor and developers and an escrow agreement between the investor, developer and the solicitors [5]. The developers entered an agreement for the purchase of (i) the Peninsula Village site in April 2007 and (ii) shares in a local company which owned the Marrakech site in November 2007. The solicitors subsequently released to the developers tranches of the investment funds for each development. In May 2008, the Financial Services Authority prohibited the developers from receiving any further investment in relation to the developments and the developers were unable to complete the purchase of either site. The developers were wound up in November 2009 [6 7]. The investors brought two claims against the developers solicitors in the Chancery Division; one relating to each of the development sites. They alleged that the solicitors had failed to properly apply the cover test before releasing funds to the developers, resulting in the funds being released without adequate security [3, 8]. The solicitors had professional indemnity insurance with the appellant. The appellants liability is limited to 3m in respect of each claim. The investors claims amount to over 10m in total. The insurers issued proceedings against the solicitors in the Commercial Court for a declaration that the investors claims in the Chancery Division be considered as one claim under the aggregation provision in clause 2.5(a)(iv) MTC [9]. The Commercial Court dismissed the claim. It accepted that all the claims arose from similar acts or omissions, but rejected that they were in a series of related matters of transactions since the transactions between the developers and each investor where not mutually dependent [11]. The Court of Appeal did not agree that the transactions had to be dependent on each other. In allowing the appeal it held that the matters or transactions had to have an intrinsic relationship with each other, not an extrinsic relationship with a third factor [12]. The Supreme Court unanimously allows AIGs appeal. Lord Toulson, with whom the other justices agree gives the lead judgment. Clause 2.5(a)(iv) MTC has two separate limbs, each of which must be satisfied in order for it to apply. The first is that the claims arose from similar acts or omissions. It is not in dispute that this is satisfied in this case. The second is the requirement that the claims were in a series of related matters or transactions. This is an important limitation, without which the scope for aggregation would be almost limitless [17, 22]. However, it is difficult to understand what the Court of Appeal meant by the term intrinsic in the context of a relationship between two transactions [21]. The use of the word related implies that there must be some interconnection between the matters or transactions, however the Law Society did not see it fit to circumscribe this limb by any particular criteria, such as intrinsic. This is unsurprising since determining whether transactions are related is an acutely fact sensitive exercise [22]. The application of the aggregation clause is not to be viewed from the perspective of any particular party. It is to be judged objectively, taking the transactions in the round [25]. The starting point is to identify the relevant matter or transactions [23, 27]. The transactions in this case involved an investment in a particular development scheme under a contractual arrangement that was primarily bilateral, but had an important trilateral component by reason of the solicitors role as trustees and escrow agent [23]. The transactions entered into in respect of each development were connected in significant ways. Each set of investors invested in a common development, they were participants in a standard scheme and co beneficiaries under a common trust [24]. On the facts as they currently appear, the claims of each group of investors arise from acts or omissions in a series of related transactions; the transactions shared a common underlying objective of the execution of a particular development project and also fitted together legally through the trusts [26]. However, the transactions entered into by the Peninsula Village investors cannot be said to be related to those entered into by the Marrakech investors. They related to different sites, had different groups of investors and were protected by different deeds of trust over different assets. They should therefore not be aggregated together [27]. A number of investors transferred their investments from Peninsula Village to the Marrakech development, entering into a new loan agreement and new escrow agreement. On the facts as they currently appear, any claim made by such an investor in respect of the Peninsula Village development should be aggregated with the claims made by the other investors in that development and any claim made by that investor in respect of the Marrakech development should be aggregated with their first claim [29].
This appeal concerns the scope of legal advice privilege. Legal advice privilege applies to all communications passing between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice. The specific issue raised by this appeal is whether, following receipt of a statutory notice from an inspector of taxes to produce documents in connection with its tax affairs, a company is entitled to refuse to comply on the ground that the documents are covered by legal advice privilege, in a case where the legal advice was given by accountants in relation to a tax avoidance scheme. The more general question raised by this issue is whether legal advice privilege extends, or should be extended, so as to apply to legal advice given by someone other than a member of the legal profession, and, if so, how far legal advice privilege thereby extends, or should be extended. In 2004, PricewaterhouseCoopers (PwC) devised a marketed tax avoidance scheme (the scheme). PwC adapted the scheme for the benefit of the Prudential group of companies, who implemented the scheme through a series of transactions (the transactions). The inspector of taxes considered it necessary to look into the details of the transactions. To that end, he served notices under section 20B(1) of the Taxes Management Act 1970 on Prudential (Gibraltar) Ltd and Prudential plc (together Prudential) giving them the opportunity to make available specified classes of documents. Prudential refused to disclose certain documents (the disputed documents) on the ground that Prudential was entitled to claim legal advice privilege in respect of them, because they related to the seeking (by Prudential) and the giving (by PwC) of legal advice in connection with the transactions. The inspector obtained authorisation from the Special Commissioners to require Prudential to disclose the disputed documents. Prudential issued an application for judicial review challenging the validity of those notices. Charles J rejected the application on the ground that, although the disputed documents would have attracted legal advice privilege if the advice in question had been sought from, and provided by, a member of the legal profession, no such privilege extended to advice, even if identical in nature, provided by a professional person who was not a qualified lawyer. His decision was upheld, substantially for the same reasons, by the Court of Appeal (Mummery, Lloyd and Stanley Burnton LJJ). The Supreme Court, by a majority of five to two (Lord Clarke and Lord Sumption dissenting), dismisses the appeal. Lord Neuberger gives the lead judgment for the majority. The majority hold that legal advice privilege should not be extended to communications in connection with advice given by professional people other than lawyers, even where that advice is legal advice which that professional person is qualified to give [51]. To do so would extend legal advice privilege beyond what are currently, and have for a long time been, understood to be its limits [37], [80]. It is universally believed that legal advice privilege only applies to communications in connection with advice given by members of the legal profession [29]. There are clear judicial statements of high authority to that effect [30]. The current editions of textbooks on privilege and evidence, as well as more than one significant official report, have proceeded on this basis [32], [33]. Extending legal advice privilege to any case where legal advice is given by a person who is a member of a profession which ordinarily includes the giving of legal advice would be likely to lead to a clear and well understood principle becoming uncertain, because it is unclear which occupations would be members of a profession for this purpose [52] [55], [80], [100]. There would be room for uncertainty, expenditure, and inconsistency, if the court had to decide whether a group constitutes a profession for the purposes of legal advice privilege [56]. It is also unclear how a court would decide whether a profession is one which ordinarily includes the giving of legal advice [57], [91]. Where members of other professions give legal advice, it will often not represent the totality of the advice, so it may also be difficult to decide how to deal with documents which contain legal and non legal advice [59]. Further, the extension of legal advice privilege to cases where legal advice is given from professional people who are not qualified lawyers raises questions of policy which should be left to Parliament [52], [81], [92]. The consequences of extending legal advice privilege should be considered through the legislative process, with its wide powers of inquiry and consultation and its democratic accountability [62]. The extension of legal advice privilege to professions other than lawyers may only be appropriate on a conditional or limited basis, which cannot appropriately be assessed, let alone imposed, by the courts [65]. Parliament has on a number of occasions legislated in this field on the assumption that legal advice privilege only applies to advice given by lawyers. Therefore it would be inappropriate for the Supreme Court to extend the law [52]. The minority consider that legal advice privilege extends to advice given by members of a profession which has as an ordinary part of its function the giving of skilled legal advice [114], [148], and that recognising the privilege attaching to the legal advice of accountants would not be extending the scope of legal advice privilege [128]. English law has always taken a functional approach to legal advice privilege [123]. On this view, the availability of legal advice privilege depends on the character of advice which the client is seeking and the circumstances in which it is given, and not on the advisers status, provided that the advice is given in a professional context [114], [142]. Lord Reed adds some observations about the case from a Scottish perspective, without intending to pre empt a full discussion on the matter should the issue arise in Scottish proceedings [102] [113]. These observations are made on the basis that the general principle, its fundamental importance, and the considerations of public policy which underlie it, are common to both Scots law and English law. Lord Reed concludes that if the question were to arise in Scotland whether the common law privilege should be extended to legal advice given by accountants, the courts would have to make a policy decision [113].
This appeal is about who should pay the legal costs of 426 claimants who successfully sued a medical group for the supply of defective silicone breast implants. It allows the Supreme Court to review the principles concerning third party costs orders. 623 claims were brought against Transform Medical Group (CS) Ltd (Transform), a medical clinic which had supplied implants manufactured by Poly Implant Prothse (PIP). Transform had insurance cover with Travelers Insurance Co Ltd (Travelers) in relation to claims brought against it. Travelers funded the whole of Transforms defence. It did not disclose until a relatively late stage that a substantial number of claimants were uninsured. The insurance policy only covered the claims of 197 claimants who suffered from a rupture of their implants between 31 March 2007 and 30 March 2011. Transform was uninsured in respect of the claims of the remaining 426 claimants. The uninsured claimants are the Respondents to this appeal. Transform entered insolvent administration half way through the litigation. The insured claims were settled by an agreement made in August 2015 and Travelers paid an agreed proportion of the damages and costs attributable to those insured claims. This left the insured claimants in a much better position than the uninsured claimants who had obtained a judgment but recovered no damages or costs from Transform at all. The 426 uninsured claimants applied to the court for an order that Travelers pay their costs. Lady Justice Thirlwall, sitting in the High Court, held that Travelers should be ordered to pay them. The Court of Appeal (Lord Justice Lewison and Lord Justice Patten) reached the same conclusion for slightly different reasons. Travelers appealed to the Supreme Court. The Supreme Court unanimously allows Travelers appeal. Lord Briggs gives the main judgment, with which Lady Black and Lord Kitchin agree. Lord Reed and Lord Sumption each give a concurring judgment. The court has a general power to order non parties to pay costs under section 51 of the Senior Courts Act 1981 [25] [26]. In the context of liability insurance, it is important for the courts to apply clear and reasonably detailed principles so that liability insurers can understand their position. It is not enough for the courts to ask whether the case is exceptional because this would not provide adequate certainty [33]; [51]. Broadly speaking, the authorities reveal two approaches to deciding whether a third party should pay costs: (1) whether the third party took control of the litigation and became the real defendant; and (2) whether the third party engaged in unjustified intermeddling. The real defendant test, as explained by the Court of Appeal in TGA Chapman Ltd v Christopher [1998] 1 WLR 12, provides useful guidelines for cases where insurance exists but some part of the claim (including the claim for costs) lies outside the limits of cover [48] [53]. However, it is inappropriate in cases like this where the claims are wholly uninsured [54]. In such cases, the appropriate question is whether the insurer engaged in unjustified intermeddling in litigation to which it was not a party. If the insurer has acted within a framework of contractual obligation, it may be very hard to establish that it has intermeddled [55] [56]; [78]. It will usually be necessary to establish a causative link between the insurers involvement and the claimants incurring of costs [65] [67]; [80]. In this case, all the claims were pursued within a single group action by common solicitors. They involved common issues which were being tried together in four test claims (which, as it turned out, comprised two insured and two uninsured claims) [68]; [79]. Travelers had a legitimate interest in Transforms defence of the insured claims and, consequently, in Transforms defence of the test cases and common issues. Travelers involvement was the natural result of its status as an insurer and did not amount to unjustified intermeddling [69]. The courts below relied on a number of specific instances of Travelers conduct. However, none of them crossed the line into unjustified intermeddling: (1) Non disclosure of the limits of cover. Travelers and Transforms solicitors advised Transform not to disclose the limits of its insurance cover. However, as the law stands, parties are not legally obliged to disclose the details of their insurance [59]. The advice about non disclosure fairly reflected Travelers rights relating to the insured claims [63] [64]; [81]. (2) Offers and admissions. Travelers was involved in Transforms decisions not to make offers of settlement or admissions to the uninsured claimants [70] [71]. If necessary, the court would conclude this involvement was justified but in any event, it did not cause the claimants to incur costs. By 2015 the uninsured claimants were determined to pursue their claims to a judgment with costs, and an offer to settle without paying their costs would have made no difference [73] [74]. (3) Asymmetry of risk. The Court of Appeal was concerned by the fact that the uninsured claimants faced failing to recover their costs if they won, whereas Transform could have recovered its costs if they had failed [58]. However, this asymmetry was not the product of Travelers intervention. It resulted from the fact that Transform was insolvent and largely uninsured, and the claimants liability for costs was several only (i.e. each claimant was independently liable for a small proportion of the overall costs) [61] [62]; [82]. Therefore, the courts below were wrong to order Travelers to pay the uninsured claimants costs [83]. Concurring judgments of Lord Reed and Lord Sumption Lord Reed reviews the historical position in England, Australia and New Zealand relating to third party costs orders [85] [93]; [106] [112] and compares this to Scotland, where the courts may order expenses against a third party who has acted as the real master of the litigation, and where there is no equivalent concept to intermeddling [94] [103]. Lord Reed adds that the suggestion that a costs order must be exceptional has little, if any, significance [106] [112]. Lord Sumption discusses the intermeddling and real defendant approaches. He suggests that cases in which an insurer has engaged in intermeddling are likely to be rare, and an insurer who acts in good faith in relation to insured claims should not incur liability in costs [113] [116].
Mr Geys was employed by Socit Gnrale, London Branch (the Bank) as Managing Director of European Fixed Income Sales from 9 February 2005. He had a written contract and further terms were incorporated into it by the Banks Staff Handbook. The contract contained a provision permitting either party to terminate his employment by giving 3 months notice. The Handbook contained a payment in lieu of notice (PILON) clause. It reserved the Banks right to terminate his employment at any time with immediate effect by making a payment to you in lieu of notice (or, if notice has already been given, the balance of your notice period). If exercised, the contract required the Bank to make a termination payment including a Compensation Payment. This was to be calculated by reference to the date when the employment terminated. If the date was after 31 December 2007, Mr Geys was entitled to a Compensation Payment reflecting awards made to him for the calendar years 2006 and 2007. If it was before that date, it would be assessed by reference to his awards in 2005 and 2006, which were significantly lower. On 29 November 2007 Mr Geys was summarily dismissed in breach of the terms of the contract. On 18 December 2007 the Bank paid into his bank account the correct sums due to him under the PILON clause. The Bank then sent Mr Geys a payslip and P45 setting out the payments. He first saw them on 7 or 8 January 2008. On 2 January 2008 Mr Geys solicitors wrote to the Bank saying Mr Geys had decided to affirm his contract and requesting further details on the termination and associated payments. On 4 January 2008 the Bank wrote to Mr Geys giving further details. George Leggatt QC (sitting as a Deputy High Court Judge) held that the date when Mr Geys received the Banks letter (deemed to be 6 January 2008) was the first time it notified him that it had exercised its contractual termination rights. The Court of Appeal (Arden, Rimer, Pitchford LLJ) held that it had been terminated on 18 December 2007 when the PILON was made into his account. The Banks primary case was that the contract was terminated on 29 November 2007 when Mr Geys was summarily dismissed. This was rejected by the Court of Appeal, who were bound by Gunton v Richmond upon Thames London Borough Council [1981] Ch 448. In that case the common law principle that a repudiatory breach terminated a contract only if and when it was accepted was applied to contracts of personal service. Four issues came before this Court: (1) Does a repudiation of an employment contract, which takes the form of an express and immediate dismissal, automatically terminate the contract (this is the automatic theory) or as was held in Gunton does the normal contractual rule apply that repudiation must be accepted by the innocent party (this is the elective theory)? (2) When in accordance with the PILON clause was Mr Geys contract terminated? (3) Is there any conflict between the 3 months notice provision in the main contract and the PILON clause in the Handbook? (4) Is Mr Geys entitled to claim damages for wrongful dismissal and for a breach of the tax efficiency provisions in the contract, as well as the termination payment, or is he required by the terms of the contract to have waived those claims? The Supreme Court allows Mr Geys appeal by a majority of 4:1 (Lord Sumption dissenting). On the first issue, the majority upheld the elective theory that a wrongful repudiation terminates the contract only if and when accepted by the innocent party. The automatic theory rewarded a wrongful repudiator of an employment contract, allowing him to select a termination date that suited him to the detriment of the innocent party. The theory also failed to explain cases where, following an unaccepted repudiation, provisions that did not survive the termination had been enforced against the repudiator, such as those relating to competition or disciplinary procedures [69, 75]. Nor had it been applied in the employment context to the extent that its proponents suggested [CA 83 86, 88 89]. There was a circularity in the premise that there is no remedy so there is no right so there is no remedy. [89] Concerns are expressed about how far the automatic theory, if valid, would extend [95 6]: Should dismissals/resignations be treated differently if they are (1) express or implied; (2) immediate or delayed; or (3) outright or less than outright, and is the distinction workable? (4) If a fundamental breach other than by dismissal does not attract the automatic theory, why should breaches for dismissal, which strike more clearly at the continuation of the contract? (5) If extended to constructive dismissals, it is inconsistent with the notion that resignation is in response to a fundamental breach, as well as the inherent need for acceptance. (6) The theory could be extended to contracts for services with similar consequences. Lord Sumption held that Gunton was contrary to the consensus existing up the 1970s. Innocent parties did not have an unfettered right to treat the contract as subsisting. He drew attention to Lord Reids qualification in White & Carter (Councils) Ltd v McGregor [1962] AC 413 that a repudiated contract can only continue with the co operation of both parties. Innocent parties cannot treat contracts as subsisting if they cannot perform or enforce it and its subject matter and core obligations have ended. It creates problems of mitigation, it compels an employee to accept repudiation or mitigate loss of his bargain when in law it has not been lost, and it leaves an employer with penumbral liability for an uncertain duration. The elective theory in this case produces an unjust result giving Mr Geys a windfall, despite suffering no substantial loss measurable in damages [110]. On the second issue, the majority held that it was not until 6 January 2008, when Mr Geys received the Banks 4 January 2008 letter, that the right to terminate under the PILON clause was validly exercised [61]. The PILON clause did not dispense with the requirement for an employee to be notified of termination [54, 61]. The employment relationship required the other party to be notified in clear and unambiguous terms that the right to end the contract was being exercised, and how and when it is intended to operate. An employee should not be required to check his bank account to discover if he is still employed [58]. The employees bank is not his agent for the receipt of notification of what the payment is for [60]. On the third issue, the Court was unanimous. It saw no inconsistency between the 3 months notice contractual provision and the Handbooks PILON clause. The contract set out one method of termination, but it was not the only method. The PILON clause could be read as a qualifying provision to the contract. A court, in the face of two seemingly inconsistent provisions, must try to reconcile them conscientiously and fairly [25]. On the fourth issue too the Court was unanimous. It held that Mr Geys could claim for damages for wrongful dismissal and for breach of the tax efficiency provisions. The contractual provisions imposed mutual obligations on both parties: the Bank was obliged to make the termination payment and Mr Geys was obliged to enter into the termination agreement. There was no provision entitling Mr Geys to waive that obligation so that he could preserve his claims. If he failed to enter into it, he would be in breach of contract and liable to the Bank for damages [33]. The provisions purporting to require Mr Geys to waive his right to claim damages conceived in favour of the Bank, and any ambiguity must be construed in Mr Geys favour [39].
In October 2002, Airtours Holidays Transport Ltd (Airtours) was in serious financial difficulties. It was suggested to Airtours that it should commission an accountants report to satisfy the 80 or so banks and other financial institutions (the Institutions) from which it had borrowed money that its proposed restructuring and refinancing proposals were viable. The Institutions were agreeable to this. Subsequently, pursuant to a decision in which both the Institutions and Airtours were involved, PwC were appointed to produce a report (the Report). The original terms of PwCs appointment were set out in a letter dated 5 November 2002 addressed to the Engaging Institutions (the Letter) and attached terms and conditions (together, the Contract). The Contract provided that Airtours was to pay PwCs fees for producing the Report and related work, and Airtours duly did so in due course. Airtours also paid PwC VAT in the form of output tax on those payments. Airtours then sought to deduct that VAT as input tax in its VAT returns for the relevant periods. HMRC challenged Airtours ability to do so. While HMRC accepted that the Contract was of commercial benefit to Airtours, they contended that Airtours was not entitled to deduct the VAT on PwCs fees as input tax because PwCs services under the Contract were not supplied to Airtours. Airtours appealed to the First tier Tribunal, who found for Airtours. The Upper Tribunal allowed HMRCs appeal. The Court of Appeal dismissed Airtours appeal. Airtours now appeals to the Supreme Court. The Supreme Court dismisses Airtours appeal by a majority of 3 to 2. Lord Neuberger gives the leading judgment, with which Lord Mance and Lord Hodge agree. Lord Carnwath and Lord Clarke both give dissenting judgments. In order for the VAT charged by PwC and paid by Airtours to be reclaimable as input tax, it must be VAT on the supply to [Airtours] of any goods or services [19]. The issue of whether there has been a supply of services by PwC to Airtours gives rise to two principal questions [20]. The first is whether PwC agreed, under the terms of the Contract, to supply services, and in particular to provide the Report [21]. HMRC accept that, if the answer to that question is yes, the appeal must be allowed. PwCs commitment to provide the services described in the Contract was a contractual commitment to the Engaging Institutions, and not to Airtours [23], for the following reasons: (i) the Letter is addressed To the Engaging Institutions, and not to Airtours [24]; (ii) paragraph 1 of the Letter provides that the Institutions had retained PwC; there is no suggestion that Airtours had done so [24]; (iii) paragraph 4 of the Letter provides that any reports are for the sole use of [those] institutions [24]; (iv) paragraph 8 of the Letter states that the Report is to be provided to the Institutions and Airtours is only to be provided with a copy, which can be redacted [25]; (v) paragraphs 9 and 10 of the Letter recognise a duty of care on the part of PwC to the Institutions, but does not acknowledge one to Airtours; further, paragraph 11 excludes any duty of care or liability to any other party [26]. While Airtours did countersign the Letter, it had to do so in order to be bound by certain provisions, such as those relating to the payment of PwCs fees [28]. The fact that Airtours, rather than the Institutions, was to pay PwC for the services, can be fairly said to raise a prima facie expectation that PwC would owe a duty to Airtours to provide those services. However, the Institutions wanted the services; there is no indication Airtours would have still paid for those services had that not been the case [35]. The same can be said of Airtours argument that its interest in having a report produced for the Institutions indicates there was a supply of services to it [37]. The second question arises from Airtours argument that, in any event, in order to succeed on this appeal, it does not have to show that it had a contractual right to require the services under the Contract to be provided to the Institutions by PwC to succeed. Rather, Airtours argues that the facts that (i) it had a substantial commercial interest in the services being provided by PwC and (ii) it not merely countersigned the Contract but thereby agreed to pay PwC for the services, justify the conclusion that the services were supplied to Airtours, as well as the Institutions [43]. Airtours relies on Lord Milletts statement in Commissioners of Customs and Excise v Redrow Group Plc [1999] 1 WLR 408 that the question to be asked is whether the taxpayer obtained anything anything at all used or to be used for the purposes of his business, but this has to be read in the light of later cases [44 45]. As subsequent authority has clarified, that statement should be interpreted consistently with the established approach of focusing on economic realities as the fundamental criterion for the application of VAT [45]. It is clear from domestic and European Court of Justice judgments that, where the person who pays the supplier is not entitled under the contractual document to receive any services from the supplier, then, unless the documentation does not reflect the economic reality, the payer has no right to reclaim by way of input tax the VAT in respect of the payment to the supplier [50]. Lord Clarke and Lord Carnwath each give judgments dissenting on the analysis of both the Contract and the commercial reality of the relationship between Airtours and PwC. Lord Clarke concludes that, in this case, PwC was making two distinct supplies, one to Airtours, and another to the Institutions [64 5]. Lord Carnwath considers that it is inappropriate to resolve the appeal on a narrow legalistic approach to construction of the Contract, particularly where the distinction between services to Airtours and services to the Institutions is unlikely to have been seen as of any practical significance to the parties [81]. He further considers that the argument that Airtours, having paid a 200,000 retainer to PwC, did not have an enforceable right, is an impossible one to accept, either as a matter of contractual construction or as a matter of economic reality [84].
Mr and Mrs McArthur are Christians who hold the religious belief that the only form of marriage consistent with Biblical teaching and acceptable to God is that between a man and a woman. They are the owners of a bakery business (Ashers). Ashers offered a Build a cake service by which customers could request images or inscriptions to be iced onto a cake. In May 2014 Mr Lee, a gay man, wished to take a cake to an event organised by campaigners for same sex marriage in Northern Ireland. He placed an order with Ashers for a cake iced with a depiction of the cartoon characters Bert and Ernie and the words Support Gay Marriage. Mrs McArthur initially took the order but later advised Mr Lee that she could not in conscience produce such a cake and gave him a refund. Mr Lee brought a claim against the McArthurs and Ashers (the appellants) for direct and indirect discrimination on grounds of sexual orientation, contrary to the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 (the SORs) and/or on grounds of religious belief or political opinion, contrary to the Fair Employment and Treatment (Northern Ireland) Order 1998 (FETO). His claim was supported by the Equality Commission for Northern Ireland. The district judge in the county court held that refusing to complete his order was direct discrimination on all three grounds. The appellants appealed by way of case stated to the Court of Appeal, arguing that FETO and the SORs were incompatible with the McArthurs rights under the European Convention on Human Rights (ECHR). The Court of Appeal served a devolution notice and notice of incompatibility on the Attorney General, who then became a party to the proceedings. On 24 October 2016 the Court of Appeal dismissed the appeal, holding that Mr Lee had suffered direct discrimination on grounds of sexual orientation and that it was not necessary to interpret the SORs to take account of the McArthurs ECHR rights. On 28 October 2016, before the order dismissing the appeal had been drawn up, the Attorney General gave notice to the Court of Appeal, requiring it to make a reference to the Supreme Court under paragraph 33 of Schedule 10 to the Northern Ireland Act 1998. The Court of Appeal concluded that he had no power to do so as the proceedings had ended. The Attorney General therefore made two references to the Supreme Court of devolution issues under paragraph 34, the first on the validity of FETO and the SORs and the second on whether the Court of Appeal should have made a reference. The appellants applied for permission to appeal against the order of the Court of Appeal, and this application was heard together with the Attorney Generals references. The Supreme Court unanimously holds that it has jurisdiction to hear an appeal against all aspects of the Court of Appeals judgment, finding that the Court of Appeal erred in refusing to make a reference pursuant to the Attorney Generals notice under paragraph 33. It grants the appellants permission to appeal and allows their appeal. The Court concludes that neither the SORs nor FETO imposes civil liability on the appellants for the refusal to express a political opinion contrary to their religious beliefs. Lady Hale gives the judgment on the discrimination issues, and Lord Mance that on the jurisdiction issues. The sexual orientation claim The district judge found that the appellants did not refuse to fulfil Mr Lees order because of his actual or perceived sexual orientation. The objection was to the message on the cake, not any personal characteristics of the messenger [22], or anyone with whom he was associated [33 34]. The message was not indissociable from the sexual orientation of the customer, as support for gay marriage was not a proxy for any particular sexual orientation [25]. The benefit of the message accrues not only to gay or bisexual people, but to their families and friends and to the wider community who recognise the social benefits which such commitment can bring [33]. Thus, there was no discrimination on grounds of sexual orientation in this case. The political beliefs claim Protection against direct discrimination on grounds of religious belief or political opinion has constitutional status in Northern Ireland [37]. The discrimination has to be on the ground of the religion or belief of someone other than the alleged discriminator [43 45]. As the appellants objection was not to Mr Lee, but to being required to promote the message on the cake, the situation was not comparable with people being refused jobs or services simply because of their religious faith, but it was arguable that the message was indissociable from Mr Lees political opinion. It was therefore necessary to consider the impact of the McArthurs ECHR rights on the meaning and effect of FETO [48]. Impact of ECHR rights The rights to freedom of thought, conscience and religion (article 9) and to freedom of expression (article 10) were clearly engaged by this case [49]. They include the right not to be obliged to manifest beliefs one does not hold [52]. The McArthurs could not refuse to provide their products to Mr Lee because he was a gay man or because he supported gay marriage, but that was different from obliging them to supply a cake iced with a message with which they profoundly disagreed [55]. FETO should not be read or given effect in such a way as to compel them to do so unless justification was shown, and it had not been in this case [56, 62]. Jurisdiction The appellants were entitled to appeal to the Supreme Court in relation to FETO notwithstanding their election to appeal to the Court of Appeal by way of case stated. Although such appeals are usually final under article 61(6) of the County Courts (Northern Ireland) Order 1980 (article 61(6)), there is an exception in section 42(6) Judicature (Northern Ireland) Act 1978 in respect of decisions involving any question as to the validity of measures of the Northern Ireland Assembly. FETO was equivalent to such a measure and the appellants did challenge its validity if it failed to protect their rights. It was not necessary to decide whether this also permitted the SORs appeal, given the overlap in the circumstances, because of the Supreme Courts conclusions on the Attorney Generals references [63 71]. The Court of Appeal had been wrong to reject the reference requested by the Attorney General under paragraph 33 on the ground the proceedings were concluded. In principle, appeals are against orders not judgments and, in this context, it is natural to regard the proceedings as live until a final order is issued. This error had deprived the appellants of the inevitably different judgment on the question of whether the SORs imposed civil liability on them for their refusal to express a political opinion contrary to their religious beliefs, which would have eventually followed. An appeal to the Supreme Court following such a procedural error was not precluded by article 61(6), which was focused on the point of law not on a challenge to the fairness or regularity of the Court of Appeals process. Even though the error was collateral to the litigation between the appellants and Mr Lee, it would be overly technical to deny the appellants the benefit of the proper handling of the reference. An appeal therefore lay to the Supreme Court against all aspects of the Court of Appeals judgment, including its decision in respect of the alleged discrimination under the SORs as well as under FETO [76 90].
S J & J Monk (SJJM) own the freehold of the first floor of a three storey office building. Previously the premises were occupied by tenants as a single office suite. In March 2010 SJJM entered into a building contract for the renovation of the property to make it more adaptable for use as either three suites of offices, or as a single suite, in order to attract replacement tenants. After entering into the building contract and until at least 6 January 2012, SJJM had the property marketed as available for rental either as three separate office suites or as a whole. On 6 January 2012, which is the relevant date for determining the rateable value of the property on an application to alter the rating list, the property was vacant and substantial construction work had been undertaken, with the premises stripped to a shell. SJJM wished to reduce the propertys liability to local authority rates during reconstruction. These rates are a tax on property on the rating list. The 2010 rating list listed the property as offices and premises with a 102,000 rateable value. On 6 January 2012 SJJM proposed to the valuation officer (the VO) that the property description should be altered to building undergoing reconstruction and the rateable value reduced to 1 as the property could not be occupied due to the building works. The issue in the appeal is whether the property should be rated having regard to its physical condition on 6 January 2012 or whether paragraph 2(1)(b) of Schedule 6 to the Local Government Finance Act 1988, as amended by the Rating (Valuation) Act 1999, requires a valuation officer to assume the property was in reasonable repair in its previous state as offices and premises on that date. Para 2(1) of Schedule 6 provides that the rateable value of the property is an amount equal to the rent at which it is estimated it might be expected to be let from year to year, subject to the assumption in para 2(1)(b) that immediately before the tenancy begins, the property is in a state of reasonable repair, but excluding from that assumption any repairs which a reasonable landlord would consider uneconomic. The VO rejected SJJMs proposal to alter the description of the property on the rating list. The Valuation Tribunal upheld his decision. The Upper Tribunal allowed SJJMs appeal, holding that the property had been stripped out beyond reasonable repair. It held that the para 2(1)(b) assumption did not extend to the replacement of systems which had been completely removed. The property should be rated as a building undergoing reconstruction and the rateable value of the premises reduced to 1. The Court of Appeal allowed the VOs appeal and held that para 2(1)(b) created an assumption that the repairs would return the premises to their former state, provided that they were economic. This displaced the reality principle that the property should be valued as it existed on 6 January 2012. The property should be valued as if it were in a state of reasonable repair. The Supreme Court unanimously allows S J & J Monks appeal and restores the determination of the Upper Tribunal. Lord Hodge gives the judgment, with which the other Justices agree. Before Parliament enacted Schedule 6 to the 1988 Act it had long been an established principle of rating law that property should be valued as it in fact existed on the material day. That principle is referred to as the reality principle [12]. The reality principle continues to be a fundamental principle of rating and is manifested in Schedule 6, in particular para 2(6) and (7), which provide that certain matters relating to the property, including matters affecting its physical state and the mode or category of its occupation, shall be taken to be as they are assumed on the material day [14]. The legislative history shows that the repairing assumption introduced by para 2(1)(b) of Schedule 6 did not supplant the reality principle by requiring that the premises are to be assumed to be in a reasonable state of repair for the mode of occupation listed on the rating list, namely as offices and premises [15]. The Court of Appeal went too far in interpreting that assumption as displacing the reality principle in relation to both the physical state of the property undergoing redevelopment and to its mode of occupation. The para 2(1)(b) assumption of reasonable repair at the outset of a hypothetical tenancy is not addressing the question of whether the premises were capable of beneficial occupation. In the context of a building undergoing redevelopment that is a question that requires to be asked first. Therefore, the repair assumption applies to matters affecting the physical state of the property (para 2(7)(a)) but not to its mode or category of occupation (para 2(7)(b)) [20]. A valuation officer must assess objectively whether a property is undergoing reconstruction, and therefore incapable of beneficial occupation, rather than simply being in a state of disrepair. In carrying out that objective assessment of the physical state of the property on the material day, the valuation officer can have regard to the programme of works being undertaken on the property. If the works are assessed as involving redevelopment, there is no basis for applying the para 2(1)(b) assumption to override the reality principle and to create a hypothetical tenancy of the previously existing property in a reasonable state of repair. This is both because a building under redevelopment, like a building under construction, is incapable of beneficial occupation and because the hypothetical landlord of a building undergoing redevelopment would not normally consider it economic to restore it to its prior use [23]. If, during redevelopment, some part of the property becomes capable of occupation, the para 2(1)(b) assumption might apply to that part, but para 2(1)(b) does not deem the development complete [24]. There is no statutory bar preventing an application to alter the rating list to reflect the actual state of the property undergoing redevelopment [29]. There is also no bar to implementing a proposal to alter the description of a property on the rating list from offices and premises to building undergoing reconstruction and consequently to reduce the listed rateable value to a nominal amount if the facts, objectively assessed, support that alteration. Furthermore, there is no basis for the argument that a property can be listed as being under reconstruction only once the works have proceeded so far that it is no longer economic to undertake repairs to restore the property to its former state [31]. On the facts found by the Upper Tribunal, the building was undergoing reconstruction on 6 January 2012 and the Upper Tribunal was entitled to alter the rating list to reflect that reality [33].
In 2003, the appellant, Egon Zehnder Ltd (Egon Zehnder), an executive search and recruitment company, hired the respondent, Ms Tillman, to work in its financial services practice area. She was first employed as a consultant and promoted to principal in 2006, partner in 2009 and joint global practice head in 2012. She was always employed largely on the terms of her original contract (the agreement). Clause 13 provided for five restraints upon the activities of Ms Tillman following the end of her employment, all limited to a period of six months from the termination date. Clause 13.2.3 (the non competition covenant) is in issue in this appeal. By this covenant, Ms Tillman agreed that she would not directly or indirectly engage or be concerned or interested in any business carried on in competition with any of the businesses of [Egon Zehnder] within a twelve month period prior to the termination date and with which [she was] materially concerned during such period. On 30 January 2017 Ms Tillmans employment with Egon Zehnder came to an end. Shortly thereafter, she informed it that she intended to start work as an employee of a competitor firm. She made clear that she intended to comply with all her covenants in the agreement apart from the non competition covenant in clause 13.2.3. She conceded that it would prevent her proposed employment within the restricted six month period but alleged that it was in unreasonable restraint of trade and thus void. On 10 April 2017 Egon Zehnder issued proceedings. It applied for an interim injunction to restrain Ms Tillmans entry into the proposed employment. On 23 May 2017 Mr Justice Mann (Mann J) in the High Court granted the injunction. The Court of Appeal allowed Ms Tillmans appeal and set aside the injunction. In the courts below, the enforceability of the non competition covenant turned on whether the words interested in unreasonably prevented even a minor shareholding by Ms Tillman in a competing business and, if so, whether the offending part of the covenant could be severed. Mann J agreed with the company that interested in did not preclude a minor shareholding, without reaching a final view on severance. The Court of Appeal disagreed with Mann J on the effect of the words interested in, considering that they did prohibit even a minor shareholding, and refused to sever those words. Clause 13.2.3 was thus held to be void as an unreasonable restraint of trade. In this Court, the issues were whether: (1) assuming that clause 13.2.3 prohibits shareholding, that part of the covenant falls entirely outside the restraint of trade doctrine; (2) the words interested in, properly construed, prohibit any shareholding; and (3) the correct approach to severance was applied. The Supreme Court unanimously allows the appeal. Lord Wilson gives the lead judgment, with which all members of the Court agree. The injunction granted by Mann J is formally restored although the contractual period of restraint has since expired. Issue (1): Scope of application of the restraint of trade doctrine The restraint of trade doctrine is one of the earliest products of the common law, and reflects the central importance ascribed to the freedom to work [22]. By the early 20th century, it was recognised that different considerations applied to restraints on the seller of a business from those on an ex employee [27]. The question of the width of the doctrine has arisen, particularly in Esso Petroleum Co Ltd v Harpers Garage (Stourport) Ltd [1968] AC 269 (HL), which remains the key decision [27 29]. It is not necessary to decide on the outer boundaries of the doctrine in this case [30]. The agreement is an employment contract, and it is agreed that clause 13.2.3 does provide for a restraint of trade [30]. In substance as well as in form the restraint on shareholding is part of the restraint on Ms Tillmans ability to work after her employment with Egon Zehnder, so the doctrine applies on the facts [33 34]. Issue (2): Proper construction of the words interested in This issue turns on the proper understanding of the validity principle in construing agreements. This principle proceeds on the premise that the parties to a contract or other instrument will have intended it to be valid [38]. This Court considers that requiring two meanings to be equally plausible or for there to be an element of ambiguity is unsatisfactory [38 42]. The test of whether the alternative construction is realistic is preferred [42]. In the present case, the starting point is that the phrase engaged or concerned or interested, adopted in clause 13.2.3, has long been included in standard precedents for the drafting of non competition covenants and treated as including a shareholding prohibition [51]. Egon Zehnder was unable to advance a realistic alternative construction of the word interested [52]. The natural meaning of the word, which includes a shareholding (large or small), applies [53]. Subject to severance, clause 13.2.3 is thus void as an unreasonable restraint of trade [53]. Issue (3): Correct approach to severance in restraint of trade cases On the question of severance, this Court is faced with two main differing approaches, found in particular in the decisions in Attwood v Lamont [1920] 3 KB 571 (CA) and Beckett Investment Management Group Ltd v Hall [2007] ICR 1539 (CA) [57 73]. The Attwood approach limits severance to situations where the covenant is in effect a combination of different covenants [66]. By contrast, the Beckett approach uses three criteria for severance [73]. This Court prefers the Beckett approach, provides guidance on its application and overrules the decision of the Court of Appeal in Attwood [81 91]. On the Beckett approach, the first criterion is whether the unenforceable provision is capable of being removed without the necessity of adding to or modifying the wording of what remains this is the so called blue pencil test [85]. The second criterion is that the remaining terms continue to be supported by adequate consideration [86]. This will not usually be in dispute [86]. The third criterion is that the removal of the unenforceable provision does not so change the character of the contract that it becomes not the sort of contract that the parties entered into at all [87]. This is the crucial criterion but this Court prefers to express it as being whether removal of the provision would not generate any major change in the overall effect of all the post employment restraints in the contract [87]. It is for the employer to establish this, and the focus is on the legal effect of the restraints and not their perhaps changing significance for the parties [87]. On the facts, the words or interested are capable of being removed from clause 13.2.3 without the need to add to or modify the wording of the rest of the clause and removal of the prohibition against her being interested would not generate any major change in the overall effect of the restraints [88].
The appeal concerns the lawfulness of a bus companys policy in relation to the use of the space provided for wheelchair users on its buses. Mr Paulley is a wheelchair user who attempted to board a bus operated by a subsidiary of FirstGroup PLC on 24th February 2012. The bus had a space marked by a wheelchair sign and a notice saying, Please give up this space for a wheelchair user (the Notice). At the time Mr Paulley attempted to board, a woman with a sleeping child in a pushchair occupied this space. She was asked by the driver to fold down the chair and move; however, she refused, stating that it did not fold down. Mr Paulley had to wait for the next bus as a result. Mr Paulley issued proceedings against FirstGroup for unlawful discrimination on the ground of his disability, claiming that FirstGroup had failed to make reasonable adjustments to its policies contrary to section 29(2) of the Equality Act 2010. The Recorder found that FirstGroup operated a provision criterion or practice (PCP) consisting of a policy of first come first served whereby a non wheelchair user occupying the space on the bus would be requested to move, but if the request was refused nothing more would be done. This placed Mr Paulley and other wheelchair users at a substantial disadvantage by comparison with non disabled passengers. There were reasonable adjustments that FirstGroup could have made to eliminate the disadvantage: (i) altering the Notice positively to require non disabled passengers occupying a space to move if a wheelchair user needed it; and (ii) adopting an enforcement policy requiring non disabled passengers to leave the bus if they failed to comply. The Recorder found in favour of Mr Paulley and awarded him 5,500 damages. FirstGroups appeal was unanimously allowed by the Court of Appeal which held that it was not reasonable to hold that FirstGroup should adjust its policy so that its drivers required, rather than requested, non wheelchair users to vacate a space when it was needed by a person in a wheelchair, and then to positively enforce that requirement with the ultimate sanction being removal from the bus. The Supreme Court unanimously allows Mr Paulleys appeal, albeit only to a limited extent. Lord Neuberger gives the lead judgment (with which Lord Reed agrees) allowing the appeal but only to the extent that FirstGroups policy requiring a driver to simply request a non wheelchair user to vacate the space without taking any further steps was unjustified. Where a driver who has made such a request concludes that a refusal is unreasonable, he or she should consider some further step to pressurise the non wheelchair user to vacate the space, depending on the circumstances. Lord Toulson and Lord Sumption write concurring judgments. On the issue of the order to be made, this majority declines to uphold an award of damages. Lady Hale, Lord Kerr and Lord Clarke also allow the appeal but they would have restored the order of the Recorder in full, including upholding the award of damages. Under section 29 of the 2010 Act, as a public service provider, FirstGroup must not discriminate against a person requiring its services by not providing the person with the service, and it must make reasonable adjustments to avoid substantial disadvantage to disabled persons [20 26]. The Recorders judgment effectively required a policy that could lead to a non wheelchair user being ordered off the bus [40 45]. The Court of Appeal was right to reject this. An absolute rule that any non wheelchair user must vacate the space would be unreasonable: there are many circumstances in which it could be unreasonable to expect a non wheelchair user to vacate a space, and even more, to get off the bus, even where the space is needed by a wheelchair user [46 48]. Even a qualified rule (i.e. that any non wheelchair user must vacate if it is reasonable) implemented through mandatory enforcement would be likely to lead to confrontation with other passengers (not least where the non wheelchair user vacating the space affected other travellers) and delay [50 51]. Passengers are not clearly subject to a statutory obligation to comply with a policy relating to the use of the space, and would not appear to be under such an obligation to get off the bus if they fail to do so [52]. Even though the hearing in the Court of Appeal had proceeded on the basis that it was not part of Mr Paulleys case [59], the argument that FirstGroups PCP should have gone further than it did, albeit not as far as the Recorder concluded, has more force. FirstGroup cannot be criticised for choosing not to express the Notice in more forceful terms: it was aimed at politely requiring non wheelchair users to vacate the space; there was evidence that directive notices are a less effective means of communication with the public; and the use of specially emphatic language should not determine legal liability in this case [63]. The suggestion that the Notice should state that priority of wheelchair users would be enforced would be false [64]. However, it was not enough for FirstGroup to instruct its drivers simply to request non wheelchair users to vacate the space and do nothing further if the request was rejected. The approach of the driver must depend upon the circumstances, but where he or she concludes that the refusal is unreasonable, some further step to pressurise the non wheelchair user to move should be considered, such as rephrasing the request as a requirement (especially where the non wheelchair user could move elsewhere in the bus) or even a refusal to drive on for several minutes [67]. Lord Toulson agrees [83 85] adding that fresh legislative consideration is desirable [87]. Lord Sumption also agrees albeit with reservations [92]. So far as damages are concerned, Lord Neuberger (with whom Lords Sumption, Reed and Toulson agree) concludes that the Recorder did not specifically consider whether, if FirstGroup had simply required its drivers to be more forceful, there was a prospect that it would have made a difference in this case. It is therefore not possible to conclude that there would have been a real prospect that such an adjustment would have resulted in Mr Paulley not being placed in the disadvantage that he was, and so an award of damages is not possible [60 61]. Lady Hale, Lord Kerr and Lord Clarke dissent in part. As the Recorder found, it was reasonable to expect bus operators to do more than FirstGroup did [102 109]. His judgment did not necessarily require ejection of a passenger who refused to move from the bus nor did it create an absolute rule [106]; [129 131]; [137]. Had the practice suggested by the claimant been in force, there was at least a real prospect that Mr Paulley would likely have been able to travel [108]; [138]. This being so, it was unjust to deny Mr Paulley damages [109]; [160].
Mrs Sandiford is a 57 year old British national. She is currently in prison in Bali, Indonesia, awaiting execution by firing squad following her conviction for drug offences. The issue in this appeal is the legality of the Foreign Secretarys policy of providing consular assistance in such cases, but not funding for legal representation. Following her arrest in May 2012 she had co operated with the police, leading to the arrest and conviction of four others. At her trial she admitted the offences but claimed that she had been coerced by death threats to her son. Following her conviction and sentence in December 2012, she sought financial assistance from the UK government to pay for legal representation to prepare and present her appeal to the High Court in Indonesia. The consulate put her in touch with an experienced local lawyer, who was willing to assist on an expenses only basis. However, they declined to make any financial contribution to her legal costs, relying on their published policy, under which the government was willing to provide consular support and assistance in finding suitable local lawyers, but not to pay for legal representation. She commenced the present proceedings for judicial review challenging the legality of that policy, both on article 6 of the European Convention on Human Rights and the common law. Her claim was rejected by the Divisional Court on 31 January 2013 and her appeal to the Court of Appeal was dismissed on 22 May 2013. In the meantime, the necessary sum for the expenses of her lawyer in Indonesia was raised by donations from the public. Her High Court appeal in Indonesia proceeded with his assistance, and was also supported by an amicus brief by the UK government, but was unsuccessful. She appealed to the Indonesian Supreme Court, again with legal assistance funded by donations, but her appeal was dismissed in August 2013. She now requires a substantial sum to pay for the legal assistance to prepare and present an application to the Indonesian Supreme Court to reopen the case and a clemency petition to the President of Indonesia. The papers require to be lodged by 29 August 2014. The issue in this case is the legality of the governments blanket policy to refuse to pay for legal representation in such cases, and their decision in January 2013 to refuse to make an exception to that policy in her own case. Her claim having failed in the High Court and Court of Appeal, Mrs Sandiford now appeals to the UK Supreme Court. The Supreme Court unanimously dismisses the appeal. However, in the light of new information (not available to the lower courts) as to the course of the proceedings in Indonesia and the steps now available to her there, the court calls on the Secretary of State urgently to review the application of the policy to Mrs Sandifords case in the light of that information. Lord Carnwath and Lord Mance give a joint judgment, with which Lord Clarke and Lord Toulson agree. Lord Sumption gives a concurring judgment. Mrs Sandiford is not within the jurisdiction of the UK for the purposes of article 1 of the European Convention on Human Rights. Jurisdiction under article 1 is primarily territorial, but there are certain recognised exceptions. One exception is in relation to the acts of diplomatic and consular agents which may amount to an exercise of jurisdiction when the agents exert authority and control over others [19]. In this case, it is not possible to identify any relevant acts of diplomatic or consular agents or any relevant exercise of authority or control by such agents over Mrs Sandiford which could bring the exception into play. Refusal to instruct or fund lawyers on behalf of Mrs Sandiford cannot constitute an exercise of authority or control over her [26]. Mrs Sandiford has been apprehended, convicted and tried for drug smuggling in Indonesia, and is under the authority and control of the Indonesian authorities. It is they who have responsibility for be ensuring her fair trial. [32]. Under domestic law, the Secretary of State has power to provide assistance, including legal funding, for British citizens facing capital charges abroad. This power is not derived from statute [49]. Prerogative powers have to be approached on a different basis from statutory powers. There is no necessary implication that a blanket policy is inappropriate, or that there must always be room for exceptions, when a policy is formulated for the exercise of a prerogative power [62]. In any event, on the evidence, the Foreign Office was prepared to consider whether the policy should be modified in the face of the particular circumstances of Mrs Sandifords case [67]. The department responded with urgency to Mrs Sandifords unexpected death sentence, and put Mrs Sandiford in contact with an experienced local lawyer who was willing to conduct the appeal on an expenses only basis. Their reasons for not making an exception to their no funding policy were not irrational. The problem at the appeal was not lack of competent representation but the apparent unwillingness of the court to take any notice of it [72]. The challenge to the decision to refuse funding and to the policy on which it was based therefore fails [73]. Although that disposes of the appeal, Mrs Sandiford remains in jeopardy and urgently in need of legal help. Circumstances have radically developed in unforeseen ways. The evidence now available as to the Indonesian proceedings appear to raise the most serious issues as to the functioning of the local judicial system and its ability to deal with Mrs Sandifords case. The local courts seem to have ignored the substantial mitigating factors in her case, including her age and mental problems, her lack of any previous record, her co operation with the police and the disparity of her sentence with those of the others convicted. This calls for an urgent review of the policy as it applies to Mrs Sandiford in light of the current information [74 75].
This appeal concerns the relevance and application of the principles of autrefois acquit, res judicata and abuse of process in the context of successive proceedings before a regulatory or disciplinary tribunal. In particular it concerns the application of the general principle that nemo debet bis vexari pro una et eadem causa, that is that nobody should be vexed twice in respect of one and the same cause. The appellant, Mr Coke Wallis, is a chartered accountant and a member of the respondent Institute of Chartered Accountants in England and Wales (the Institute) which is responsible for the regulation of chartered accountants. Mr Coke Wallis formerly practised in Jersey where he and his wife were directors and shareholders in a number of trust companies carrying out regulated financial services work. In September 2003 Mr Coke Wallis and his wife were convicted in Jersey of failing to comply with a direction of the Jersey Financial Services Commission that no records or files in respect of the companies were to be removed from the offices of the companies, having been caught by police attempting to take via the ferry to St Malo suitcases containing documents and records relating to the companies from the jurisdiction of the Jersey authorities. In November 2004, the Institutes Investigation Committee preferred a complaint (the first complaint) against Mr Coke Wallis, alleging that he was liable to disciplinary action under bye law (4)(1)(a) of the Institutes bye laws, relying on the Jersey conviction. Bye law 4(1)(a) provides that a member was liable to disciplinary action if in the course of carrying out professional work or otherwise he has committed any act or default likely to bring discredit on himself, the Institute or the profession of accountancy. Bye law 7(1) provided that a conviction outside England and Wales of an offence corresponding to one which was indictable in England and Wales was conclusive evidence of an act or default likely to bring discredit on the institute or profession. The first complaint was dismissed by a disciplinary committee (the tribunal) in April 2005 on the basis that the tribunal was not satisfied that the offence of which Mr Coke Wallis was convicted in Jersey corresponded with any indictable offence in England and Wales. In March 2006 the Investigation Committee preferred a second complaint (the second complaint) alleging discreditable conduct, relying on the conduct which had led to Mr Coke Wallis conviction in Jersey. Mr Coke Wallis applied to have the second complaint summarily dismissed on the grounds of autrefois acquit, res judicata or abuse of process, arguing that the first and second complaints made the same allegations and so the same complaint had already been dismissed. After a preliminary hearing the tribunal held that the two complaints did not allege the same thing: the first was based on the fact of the conviction, while the second was based on the underlying conduct. The tribunal dismissed the application. Mr Coke Wallis issued an application for judicial review of that decision. On 6 November 2008 Owen J dismissed the application for judicial review, a decision which was upheld by the Court of Appeal. Mr Coke Wallis appealed to the Supreme Court. The Supreme Court unanimously allowed the appeal and held that the principle of res judicata required that the second complaint be dismissed. The substantive judgment is given by Lord Clarke, with additional judgments from Lord Collins and Lord Dyson. Lord Clarke (with whom all the members of the Court agreed) stated that the two complaints alleged the same breach of bye law 4(1)(a). On the true construction of bye law 7(1) the role of a conviction was only to provide conclusive evidence of a breach of bye law 4(1)(a): [14] [16]. It followed that the conviction was not capable of itself being the act complained of as being a breach of bye law 4(1)(a). In these circumstances the act complained of as being discreditable conduct in the first complaint was not being convicted but failing to comply with the direction of the Jersey Financial Services Commission. That was precisely the same complaint as was advanced in the second complaint: [17] [20], [33]. The principles of res judicata and not those of autrefois convict apply to disciplinary proceedings, which are civil in nature: [22] [24], [27 [32]; [57] [59]. Res judicata is a generic term of which cause of action estoppel and issue estoppel are two species. The distinction between the two species is of potential importance because the former creates an absolute bar whereas the latter does not. In this case Mr Coke Wallis relied upon cause of action estoppel: [25] [26]. There are a number of constituent elements in a case based on cause of action estoppel. They are that: (i) the decision, whether domestic or foreign, was judicial in the relevant sense; (ii) it was in fact pronounced; (ii) the tribunal had jurisdiction over the parties and the subject matter; (iv) the decision was (a) final; (b) on the merits; (v) it determined a question raised in the later litigation; and (vi) the parties are the same. In the instant case it was not in dispute that all those elements were established except (iv) and (v): [34] [35]. As to (iv) and (v), the Court finds that the first decision of the tribunal was both final and on the merits. If the tribunal had held that the Jersey conviction was based on an offence which corresponded to an indictable offence in England and Wales, it would have found the complaint proved because the conviction would have been conclusive evidence of a breach of bye law 4(1)(a). There could have been no doubt that such a decision would have been final and on the merits. The same was true of the decision to dismiss the complaint: [36] [43]. As a general principle, the bar created by a cause of action estoppel is absolute with no exception for special circumstances. There was force in the Institutes submission that a public interest exception to the strict application of the doctrine of cause of action estoppel should be recognised in the disciplinary context where an application of the absolute principle might put the safety of the public at risk. However, whether and in what circumstances to permit such an exception is essentially a matter for Parliament and not for the courts: [45] [51]. This conclusion makes the question of whether the second complaint should be dismissed or stayed on the ground of abuse of process academic and it would not be appropriate for the Court to express an opinion on this issue: [52].
The appeal arises out of an application for judicial review of a decision taken by the Scottish Criminal Cases Review Commission (the Commission) under s.194B(1) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) not to refer the appellants rape conviction to the High Court of Justiciary. In 2001 the appellant had sexual intercourse with a woman who then reported to the police that she had been raped. The appellant was interviewed by the police, and in accordance with practice and the law as it was understood at the time, he was not offered the option to consult a solicitor before the interview, and no solicitor was present during it. During the interview, he admitted having had sexual intercourse with the complainer, but maintained that it had been consensual. As a result of his admission, semen found on vaginal swabs was not subjected to DNA analysis. At trial, the appellant elected not to give evidence but relied on the interview as setting out his defence of consent. The appellant was convicted and sentenced to 5 years imprisonment. The appellant appealed against his conviction unsuccessfully. His case was also referred by the Commission, again without success. The appellant then applied to the Commission for a second referral of his case. Following the decision of the Supreme Court in Cadder v HM Advocate that article 6 of the European Convention on Human Rights required suspects to be permitted access to legal advice prior to and during interrogation by the police the appellant also sought to have his case referred on that basis. The Commission declined to make a reference on any of the grounds advanced. In relation to the Cadder ground, the Commission considered that since the Crown had relied upon the appellants admission that sexual intercourse had occurred as corroboration of the complainers evidence in that regard, and no other correlative evidence existed, there might have been a miscarriage of justice. However, the Commission did not believe it was in the interests of justice that a reference should be made, given the time that had passed since conviction, and that the appellant did not dispute the veracity of the interview or the fairness of the manner in which it had been conducted, and had relied on it at trial. The grounds for a reference set out in s.194C(1) were therefore not met. The appellant applied for judicial review of the Commissions decision. That application was refused by the Lord Ordinary and the ruling was upheld by the Extra Division. The appellant appealed to the Supreme Court. The Supreme Court unanimously dismisses Mr Gordons appeal. Lord Reed gives the judgment, with which the rest of the Court agrees. The Extra Division and the Lord Ordinary were correct to conclude that the Commission did not err in law in any of the ways suggested by the appellant. The Commission was right to take into account the fact that the appellant had not disputed the veracity of what he had told the police in the interview. The fact that the evidence in question was and remains undisputed is plainly relevant to whether it is in the interests of justice to make a reference. It would not normally be in the interests of justice to quash a conviction merely because, under the law as now understood, there was a lack of admissible corroboration of a fact which had never been in dispute. While it is a relevant consideration that if the appellant had been offered the opportunity to consult a solicitor, matters might have taken a different course, and the interview might not have provided the necessary corroboration that sexual intercourse had occurred, it is also relevant that it was because of the answers given at interview, and the admissibility of those answers under the law at the time, that the semen found on the swabs were not submitted to examination, so as potentially to provide other corroborative evidence. These considerations do not however detract from the relevance of the fact that the truth of what was said at interview was and remains undisputed. [37 39] The Commission was also correct to take into account the fact that the appellant had not challenged the fairness of the way in which the interview had been conducted or its use at the trial. Prior to Cadder there were well established grounds of objection on which the appellant could have relied in the event of unfairness in the conduct of the interview or the use made of it at the trial, and his failure to do so was plainly relevant to where the interests of justice lay. [40] It was also a relevant consideration that the appellant had relied on the interview in order to present his defence to the jury. The appellants argument was that this course of action was forced upon him. Although the appellants admission that sexual intercourse had taken place was admissible under the law as it then stood, he was entitled to have the whole of the interview placed before the jury so that they were aware that the admission was made in the context of his contention that the sexual intercourse had been consensual. The result was that, although the appellant was entitled to give evidence in his own defence, he did not have to do so in order for his defence to be placed before the jury. He could therefore avoid exposing his defence to cross examination. That afforded him an opportunity which would not have existed if the interview had been inadmissible. In the event, he availed himself of that opportunity. [41] The Commissions approach to the interests of justice test in s.194C of the Act was not inconsistent with the application in the case law of the corresponding test in s.194DA, which applied to the High Court. The High Court has not treated its decision under s.194DA as identical to that of the Commission under s.194C; although the power to refer is couched in the same language, the role of each body is different. Further, the authorities relied on by the appellant in any event concerned different circumstances. [42 50]
The issue in this appeal is whether as a matter of European Union law the United Kingdom may impose a requirement of residence in Great Britain as a condition of entitlement to disability living allowance (DLA). Mrs Tolley, had worked in the UK, paying national insurance contributions, from 1967 to 1984, with some further contributions up to 1993/94. From 1993 she was awarded the care component of DLA on an indefinite basis, because she was unable to prepare a cooked main meal for herself. She moved permanently to Spain in November 2002. The Secretary of State for Work and Pensions decided that she was no longer entitled to DLA by reason of s 71(6) Social Security Contributions and Benefits Act 1992 and the regulations thereunder, which required her to be resident in Great Britain. Mrs Tolley appealed against this decision on the basis that UK domestic law was incompatible with the EU law laid down in Council Regulation (EC) No 1408/71 (the Regulation). The Regulation provides that certain benefits (including those categorised as an invalidity benefit) are fully portable within the EU. The care component of DLA has, however, been categorised in a number of EU cases as a cash sickness benefit. Mrs Tolleys entitlement to receive it when she no longer resided in the UK depended on whether she was an employed person for the purposes of the Chapter 1 of Title III of the Regulation. The meaning of employed person in article 1 of the Regulation has been broadly defined by the Court of Justice of the European Union (CJEU) in cases involving other benefits as extending to anyone who is insured under a social security scheme irrespective of the existence of an employment relationship. Within Title III, the rights of unemployed persons to export sickness benefits are severely limited. Mrs Tolley argued that she was an employed person as she was insured by reason of her national insurance contributions against the risk of old age under UK legislation. Alternatively, she remained subject to the legislation of the UK for the purposes of article 13, which lays down the general rule that a person should only be subject to the legislation of a single member state. The Secretary of State argued that Mrs Tolley could not be an employed person for the purpose of the specific provisions of Chapter 1 of Title III, or that she fell within article 13(2)(f) because the legislation of the UK had ceased to be applicable to her, and she had therefore become subject to the legislation of Spain. Mrs Tolleys appeal was allowed by the First tier Tribunal. She died shortly afterwards and her husband was appointed to continue the proceedings in her place. The Secretary of State appealed against the First tier Tribunals decision but his appeal was rejected by the Upper Tribunal and by the Court of Appeal. He now appeals to the Supreme Court. The Supreme Court is obliged to refer questions of EU law to the CJEU if the application of the Regulation in the circumstances of this case is not clear. The Supreme Court unanimously decides to refer three questions to the CJEU. The terms of the reference are set out by Lady Hale. In the view of the court, the principled solution to the case would be to treat the care component of DLA as an invalidity benefit for the purpose of the Regulation. Unlike sickness benefits, DLA is not intended to be paid on a short term basis and is more akin to invalidity and old age benefits. This would have avoided the issues which had arisen in this case [7, 24]. However, if DLA remains to be treated as a sickness benefit, none of the cases relied on by Mrs Tolley address the question of whether, in the light of the specific provisions of Title III relating to unemployed persons, the broad definition of employed persons under article 1 should apply [25]. It is also unclear how article 13 (and the special procedures for implementing the legislation of the UK in annex VI) apply when a person remains subject only to the legislation of a member state relating to a particular benefit, in this case potential entitlement to a state retirement pension. The questions referred are therefore as follows [27]: 1. 2. 3. Is the care component of the United Kingdoms Disability Living Allowance properly classified as an invalidity rather than a cash sickness benefit for the purpose of Regulation No 1408/71? (i) Does a person who ceases to be entitled to UK Disability Living Allowance as a matter of UK domestic law, because she has moved to live in another member state, and who has ceased all occupational activity before such move, but remains insured against old age under the UK social security system, cease to be subject to the legislation of the UK for the purpose of article 13(2)(f) of Regulation No 1408/71? (ii) Does such a person in any event remain subject to the legislation of the UK in the light of Point 19(c) of the United Kingdoms annex VI to the Regulation? (iii) If she has ceased to be subject to the legislation of the UK within the meaning of article 13(2)(f), is the UK obliged or merely permitted by virtue of Point 20 of annex VI to apply the provisions of Chapter 1 of Title III to the Regulation to her? (i) Does the broad definition of an employed person in Dodl and Oberhollenzer [2005] ECR I 5065 apply for the purposes of articles 19 to 22 of the Regulation, where the person has ceased all occupational activity before moving to another member state, notwithstanding the distinction drawn in Chapter 1 of Title III between, on the one hand, employed and self employed persons and, on the other hand, unemployed persons? (ii) If it does apply, is such a person entitled to export the benefit by virtue of either article 19 or article 22? Does article 22(1)(b) operate to prevent a claimants entitlement to the care component of DLA being defeated by a residence requirement imposed by national legislation on a transfer of residence to another member state?
The Chagos Islands are otherwise known as the British Indian Ocean Territory (BIOT). In 1962 they had a settled population of 1,000. In 1966 the UK Government agreed to allow the USA to use the largest of the Chagos Islands, Diego Garcia, as a military base. Pursuant to this arrangement, the Commissioner for BIOT made the Immigration Ordinance 1971 (the Ordinance). Section 4 of the Ordinance made it unlawful for a person to be in the BIOT without a permit and empowered the Commissioner to make an order directing that persons removal. Between 1968 and 1973 the UK Government procured the removal and resettlement of the Chagossians by various non forceful means. In 2000 the appellant, Mr Bancoult, obtained a High Court order quashing section 4 of the Ordinance. The then Foreign Secretary announced that he accepted this decision, such that the prohibition on the resettlement of BIOT was lifted. He also announced that work on the second stage of a feasibility study into the resettlement of the former inhabitants would continue. The second stage of the feasibility study was published in 2002. Part B (the 2B report) concluded that the costs of long term inhabitation of the outer islands would be prohibitive and life there precarious. In 2004 Her Majesty by Order in Council made the BIOT Constitution Order (the 2004 Order) which introduced a new prohibition on residence or presence in BIOT. In 2008, the appellants challenge to the 2004 Order by judicial review was dismissed by a majority of 3 (Lord Hoffmann, Lord Rodger and Lord Carswell) to 2 (Lord Bingham and Lord Mance) in the House of Lords (R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61) (the 2008 judgment). In separate litigation concerning the Governments declaration of a Marine Protected Area (MPA) around BIOT, the respondent in 2012 disclosed certain documents relating to the drafting of the 2B report (the Rashid documents). The appellant seeks to set aside the 2008 Decision on the grounds that (i) the Rashid documents cast doubt on the reliability of the 2B report and should, pursuant to the respondents duty of candour in public law proceedings, have been disclosed prior to the 2008 judgment, and (ii) four heads of new evidence have come to light, constituting independent justification for setting aside the 2008 judgment. In 2014 15 a new feasibility study concluded that, assuming for the first time possible re settlement of Diego Garcia itself, scope existed for supported resettlement of BIOT (the 2014 15 study). The Supreme Court dismisses the appeal by a majority of 3 to 2. Lord Mance gives the majority judgment, with which Lord Neuberger agrees. Lord Clarke gives a separate judgment, concurring with Lord Mance. Lord Kerr gives a dissenting judgment, with which Lady Hale agrees in a separate dissent. The Supreme Court has inherent jurisdiction to correct injustice caused by an unfair procedure which leads to an earlier judgment or is revealed by the discovery of fresh evidence, although a judgment cannot be set aside just because it is thought to have been wrong on points unrelated to such procedure or evidence [5, 154, 190]. The authorities indicate as the threshold for setting aside a previous judgment whether a significant injustice has probably occurred in case of non disclosure or whether there is a powerful probability of significant injustice in case of fresh evidence. But Lord Mance leaves open the possibility of the egregiousness of the procedural breach and/or the difficulty of assessing its consequences militating in favour of a lower threshold, and considers the application on that basis too [8]. An applicant must also show that there is no alternative effective remedy [6]. As to the non disclosure, the essential questions are (i) whether due disclosure of the Rashid documents would have led to a challenge by Mr Bancoults representatives to the 2B report in the original judicial review proceedings, and, if so, (ii) whether it is likely that such a challenge would have resulted in a different outcome to the 2008 judgment [61]. Assuming without deciding that (i) was satisfied, Lord Mance concludes as to (ii), after reviewing the 2008 judgment [16 19] and the Rashid documents [20 64], that there is no probability, likelihood, prospect or real possibility that a court would have seen, or would now see, anything which could, would or should have caused the respondent to doubt the conclusions of the 2B report, or made it irrational or otherwise unjustifiable to act on them in June 2004 [65]. As to the alleged new evidence, the first head consists essentially of analysis and submissions which the majority takes into account, the second and third heads consist of material outside the respondents knowledge at the relevant times and neither they nor the fourth provide any basis for setting aside the 2008 judgment [66 71]. Even if the threshold for setting aside were crossed, circumstances have changed in the light of the 2014 15 study and/or governmental confirmation that the MPA does not preclude resettlement [72 75]. It is now open to any Chagossian to mount a fresh challenge to the failure to abrogate the 2004 orders in the light of the 2014 15 studys findings, as an alternative to further lengthy litigation and quite possibly a fresh first instance hearing about the factually superseded 2B report. [72 76, 78 79]. Lord Kerr, with whom Lady Hale agrees, would have set aside the 2008 Decision. Although the appellant accepted that it must be shown that the non disclosure probably had, or may well have had, a decisive effect on the outcome [155], Lord Kerr would have held that it is enough for there to be a real possibility that a different outcome would have occurred had the information been available at the time of the original hearing [160 163]. The Rashid documents might well have caused the 2008 Decision to be different [168, 193]. Lord Kerr disagrees with the majority that the conclusions of the 2014 2015 feasibility study render the present application moot. The mere possibility that the Chagossians might be allowed to resettle is insufficient. It would be necessary to demonstrate that they would achieve the same result as would accrue on the successful re opening of the appeal [179]. Moreover, there is no question of pragmatic justice being done here as the Supreme Court in this appeal is unable to vindicate the appellants right to resettle in the BIOT [180].
This case concerns the circumstances in which a highway authority is required to pay compensation for the erection of barriers preventing a property owner accessing a public highway from his or her property. Mr Cusack is a solicitor who has practised from a property on a main road in Harrow since 1969. The property was originally built as a dwelling and had a garden at the front adjoining a footpath which runs alongside the road. In 1973, Mr Cusack obtained temporary planning permission to use the ground floor of the property as offices until August 1976. That use of the property continued and is now to be regarded as lawful (by virtue of section 191(2) of the Town and Country Planning Act 1990). At an unknown date, the garden at the front of the property was turned into a forecourt for use as a car park for members of staff and clients. In order to enter and leave the forecourt, cars are required to cross the footpath. In January 2009, Harrow London Borough Council, the relevant highway authority, informed Mr Cusack that the movement of vehicles across the footpath was a danger to pedestrians and other motorists. Mr Cusack was told that the council intended to erect barriers in front of his property and several neighbouring properties in order to prevent cars driving over the footpath. Mr Cusack began proceedings seeking an injunction restraining the council from erecting the barriers. A county court judge refused to grant the injunction, holding that the council had power to erect the barriers under section 80 of the Highways Act 1980, which permits a highway authority in certain circumstances to erect and maintain fences or posts for the purpose of preventing access to a public highway. The Court of Appeal held that section 80 was not applicable because the council had power to erect the barriers under section 66(2) of the 1980 Act, which empowers a highway authority to erect and maintain walls, rails, fences etc. if necessary for the purpose of safeguarding persons using the highway and (unlike section 80) would require compensation to be paid to Mr Cusack. The council appealed to the Supreme Court. Mr Cusack accepts that the council has power to erect the barriers, but maintains that appropriate compensation must be paid. No barriers have yet been erected in front of Mr Cusacks property. The Supreme Court unanimously allows the councils appeal. Lord Carnwath gives the leading judgment. The owner of a property adjoining a highway has a common law right of access to the highway, without restriction, from any part of his or her property. However, that right has been greatly limited by statutory provisions and there is no general right to compensation when action is taken to restrict a property owners right of access to an adjoining highway [4]. Canons of statutory construction, including the principle that a specific statutory provision excludes the application of an inconsistent and more general statutory provision, have a valuable role to play as guidelines embodying logic or common sense [57,60]. However, the distinction between general and specific statutory provisions is of no assistance in this case because neither section 66(2) nor section 80 of the 1980 Act can be regarded as more specific or less general then the other. The power conferred by section 66(2) must be used for a specific purpose (safeguarding persons using the highway) but, unlike section 80, it is not confined to preventing access to a highway [12, 61]. The 1980 Act is a consolidating statute and is the result of a complex history extending over more than 130 years. It contains a variety of overlapping and sometimes inconsistent powers [19, 64]. The council is entitled to rely on the clear wording of section 80 in order to erect barriers in front of Mr Cusacks property. It does not matter that the council could use section 66(2) to achieve the same objective. However, a highway authoritys use of section 80 could be challenged if, for example, it circumvented the specific prohibitions of the use of the power conferred by section 66(2) [27]. The Human Rights Act 1998 does not preclude the council from relying on section 80 because it involves no breach of Mr Cusacks right to peaceful enjoyment of his property under article 1 of the First Protocol to the ECHR (A1P1): o The erection of barriers in front of Mr Cusacks property would be a control of the use of property, not a deprivation of property [37, 66]. o This case concerns land development and town planning, in relation to which the state enjoys a wide margin of appreciation [44]. o The issue of the proportionality of the interference with Mr Cusacks rights under A1P1 requires a broad judgment as to where a fair balance lies between competing general and individual interests; the issue is not merely whether the council has abused its powers. Although there is no general right to compensation under A1P1, the absence of compensation is relevant to the proportionality of any interference with the rights guaranteed by A1P1 [42 44]. o There has been no challenge by Mr Cusack to the compatibility of section 80 with A1P1 as such. The mere fact that another statutory route is available to the council and that it requires the payment of compensation to Mr Cusack does not itself lead to the conclusion that the councils reliance on section 80 is disproportionate. There is no general rule under A1P1 that, where the state seeks to control the use of property and could do so under two different provisions which have different consequences in terms of compensation, it is obliged to use the provision which carries some (or greater) compensation [45, 69]. o A use of property that is immune from planning enforcement measures, and is therefore to be regarded as lawful under section 191(2) of the Town and Country Planning Act 1990, is not to be treated for all purposes as being the subject of a deemed planning permission. Mr Cusacks use of the vehicular access to his property via the footpath is, therefore, different from the use of a means of access that is authorised by planning permission (and which, by virtue of section 80(3)(c), could not be obstructed by the use of the power conferred by section 80) [49, 68].
Mr Mamdouh Ismail, the Respondent, is an Egyptian national who was chairman of the board of the El Salam Maritime Transportation Company. On 3 February 2006, a ferry operated by the company sank in the Red Sea and more than 1000 people lost their lives. Mr Ismail and his son, who was a director and vice chairman of the company, were charged with manslaughter. A trial took place at which neither defendant was present, though they were legally represented. Both were acquitted. The prosecution appealed and, again, Mr Ismail and his son were not present but were legally represented. The sons acquittal was affirmed but, on 11 March 2009, Mr Ismail was found guilty and was sentenced to the maximum sentence of seven years with hard labour. Mr Ismail had entered the United Kingdom on 26 April 2006, and has remained here ever since. On 11 October 2010, the Egyptian authorities requested that the Secretary of State serve the judgment of the Appeal Court in Mr Ismail. On 3 August 2011, the Secretary of State informed Mr Ismail that she intended to do so. In a letter before claim dated 18 August 2011, Mr Ismails solicitors submitted that the Secretary of State would be acting unlawfully if she served the judgment. Further representations were made on Mr Ismails behalf between August 2011 and January 2012. In response to these, the Secretary of State made inquiries with Egyptian authorities as to the effect that service of the judgment would have on Mr Ismail. She was informed that the Appeal Court judgment could be appealed by means of an objection made by a lawyer acting on Mr Ismails behalf within 10 days of service of the judgment; otherwise, the judgment would become final but could still be appealed to the Court of Cassation if Mr Ismail appeared in person. On 23 May 2012, the Secretary of State informed Mr Ismails solicitors that she intended to serve the judgment on him. On 20 June 2012 a claim for permission to apply for judicial review of that decision was made in the English courts. Following a hearing on 12 February 2013, permission was granted and, by a judgment of 26 March 2013 the High Court granted Mr Ismails application for judicial review. It certified two points of law of general public importance, which are pursued on this appeal: 1. What is the extent of the Secretary of States discretion when serving a foreign judgment under section 1 of the Crime (International Cooperation) Act 2003? 2. May a persons ECHR article 6 rights be engaged on service by the Secretary of State of a foreign judgment under section 1 of the Crime (International Co operation) Act 2003? The Supreme Court unanimously allows the Secretary of States appeal and dismisses the application for judicial review of the Secretary of States decision. Lord Kerr gives the only judgment. The Secretary of State contended that service of a foreign judgment could not engage article 6 because (1) it does not have the direct consequence of exposing the individual to a breach of any fair trial guarantee and (2) the consequences of service are not of a type or nature to warrant the engagement of article 6 rights [13]. Further, the Secretary of State submitted that it was not incumbent on her to investigate the fairness of proceedings in a foreign state when she was asked to serve a judgment: that would run counter to the purpose of the 2003 Act which was to provide speedy and effective procedural assistance to other sovereign states [15]. For Mr Ismail, it was submitted that there is a clear discretion in the 2003 Act; that the Secretary of State is required to carefully assess the respondents representations on article 6 when plausible evidence of unfairness in the Egyptian trial was provided to her; and that service is more than a merely administrative act [18, 20]. From a purely textual perspective, the wording of the statute suggests an administrative procedure that does not routinely require examination of the proceedings which prompted the request for service [23]. On the other hand, the Act provides a power and not an obligation to effect service of foreign process and it was therefore contemplated that there would be circumstances in which service would not be appropriate [26]. It is well settled that a person physically present in a country which has acceded to the ECHR is entitled to its protection, even in circumstances where the actions of a member state would expose them to consequences in a non contracting foreign state which would amount to a violation of Convention rights [32]. That, however, is not the context of this case because the decision of the Secretary of State to serve the judgment on Mr Ismail did not expose him to a risk of violation of his Convention rights [36]. Service of the judgment would have undoubtedly placed Mr Ismail in a dilemma whether to return to Egypt to appeal the judgment, or suffer the consequences of the judgment becoming final but having to face that dilemma does not amount to a possible violation of his article 6 rights [36]. Service of the Egyptian judgment does not have a direct consequence of exposing Mr Ismail to proscribed ill treatment. It reduces his options but does not carry the inevitable outcome of exposure to a violation of his rights. He could avoid that exposure by remaining in the UK [38]. Service of a judgment is not the same as enforcement of it because it does not give legal force to the judgment or ratify it [41]. Service does not, therefore, alter the legal position of the person on whom it is served. It may narrow the legal options available to him but his essential legal position remains unchanged [42]. Service of the judgment would not involve an exercise of the UKs sovereignty nor would it engage Mr Ismails fundamental rights. Indeed, in the particular circumstances of this case, it would have no material impact on Mr Ismail at all [48]. The Secretary of State was under no obligation to investigate further the consequences that would accrue to Mr Ismail on service of the judgment [52]. That being said, there may be cases in which service of a judgment would engage article 6 or would call for further investigation of the basis on which the judgment had been obtained. That might occur, for instance, where service would lead more directly to enforcement or have other material consequences on the individual. In certain cases service of a foreign judgment might engage article 6. This is not such a case [53].
Scottish Widows Plc (Scottish Widows) is a life assurance company. It was established in 2000, when it acquired the business of Scottish Widows Fund and Life Assurance Society (the Society) under a scheme of transfer which had been approved by the Court of Session in Scotland. Scottish Widows acquired assets under the scheme which had an approximate value of 25bn, and it became subject to actuarial liabilities of approximately 19bn. Members of the Society received compensation of approximately 5.8bn, which represented the surplus of the Societys assets over its liabilities at the time of the transfer. The compensation was paid by Scottish Widows holding company, in return for the members of the Society giving up their right to participate in the surplus. The scheme provided that Scottish Widows was to establish and maintain a Long Term Business Fund (LTBF) to fund its long term insurance business. It also provided that there was to be a memorandum account within the LTBF, called the Capital Reserve. This was said to represent the value of shareholders capital within the LTBF. Life assurance companies are required to submit annual regulatory returns, in particular to demonstrate solvency. Various forms are prescribed for these returns. One these is known as Form 40, which is a revenue account in respect of the LTBF. In the years following transfer the value of the assets of Scottish Widows LTBF fell substantially, principally because of falls in the stock markets. To cover those losses and to allow for distributions to policyholders, Scottish Widows brought into account amounts on Form 40 for each of the accounting periods 2000, 2001 and 2002. These amounts were recorded in line 15 of the relevant Form 40s. They were described as transfers from the Capital Reserve. Section 83 Finance Act 1989 provides for certain sums to be brought into account in the computation of the profits of an insurance company in respect of its life assurance business for the purposes of corporation tax. In the terms that were in force between 2000 and 2003 section 83(2) provided that: [T]he following items, as brought into account for the period of account (and not otherwise), shall be taken into account as receipts of the period (a) the companys investment income from the assets of its long term business fund, and (b) any increase in value (whether realised or not) of those assets. Section 83(3)(a) made provision for ascertaining whether or to what extent a company had incurred a loss in respect of its life assurance business where an amount was added to an insurance companys long term business fund as part of or in connection with a transfer of business to that company. The Revenue maintained that the amounts to be brought into account as receipts for the computation of profits or losses for tax purposes under section 83(2)(b) or, in the alternative, under section 83(3)(a) were the amounts shown in line 15 on Form 40. It maintained that the reference to a difference in value as brought into account directed attention to the figures that had been entered on Form 40, not the market value of the assets of the LTBF. Scottish Widows argued that the words increase in value in section 83(2)(b) meant an increase in the actual value of actual assets, and that the words as brought into account were concerned with when the increase was brought into account, not the extent of the increase. Here the value of the assets of the LTBF had fallen during each of the relevant periods. So there was no increase which could be brought into account. The parties referred the question whether, in computing the Case I profit or loss of Scottish Widows for the accounting periods ending in 2000, 2001 and 2002, the amounts that fell to be taken into account as receipts to the Special Commissioners were the amounts shown in line 15 of Form 40. It was agreed that, if Scottish Widows argument that it is actual values and not those amounts that should be taken into account is correct, it will have allowable losses in respect of those years of 28.7m, 612.6m and 431.3m. The Special Commissioners answered the question in the affirmative. They held that, although the amounts shown on Form 40 were not to be brought into account by section 83(2), they were covered by section 83(3)(a). The Inner House unanimously dismissed the Revenues appeal against the decision on section 83(2) and by majority (Lord Emslie dissenting) dismissed Scottish Widows cross appeal against the decision in respect of section 83(3)(a). Scottish Widows appealed and the Revenue cross appealed. The Supreme Court unanimously allows the Revenues cross appeal and holds that the amounts that were to be taken into account as receipts by virtue of section 83(2) were the amounts shown on Form 40. It therefore answers the question that was referred to the Special Commissioners in the affirmative. Lord Hope and Lord Walker both give detailed judgments. Lady Hale and Lord Neuberger give shorter judgments, agreeing with each other and with Lord Hope and Lord Walker. Lord Clarke agrees with all of the judgments. Although the applicable statutory provisions had been amended on various occasions, it was not helpful to look at their legislative history. That should only be done where there is an interpretative difficulty which classical methods of construction cannot solve. The proper approach was to concentrate on the wording of sections 83(2) and (3)(a) as they were during the relevant accounting periods: [15], [73], [122] [124]. Lord Walker analyses in detail the regulatory and taxation regime which applies to life assurance companies and the particular features of the demutualisation scheme so as to provide a backdrop to the statutory construction: [40] [71]. There were two particularly important points. One was that when completing regulatory returns, book values could be used, and that an insurer enjoyed a certain freedom in determining what amount of its actuarial surplus to recognise in its returns: [82] [86]. It was also particularly important to appreciate the nature of the Capital Reserve. It was not a fund of particular assets, separate from the LTBF, but was merely an accounting category recording an initial value within the LTBF: [87] [91] [101]. The key to interpreting section 83(2) was the phrase as brought into account and, in particular, the use of the word as: [22], [76], [116], [125]. This demonstrated that the computation must proceed on basis of what was actually entered on the appropriate regulatory account, in this case the form known as Form 40. It was important that, when completing its returns, an insurance company should be permitted to use book values: [20]. The various arguments which were advanced in favour of Scottish Widows construction, based on general principles of interpreting tax legislation ([24] [26], [101] [102]), the statutory scheme and specific aspects of the drafting ([23], [107] [112]), fell to be rejected in the face of this clear statutory language. The Special Commissioners and, to some extent, the Court of Session had attached too much weight to the label Capital Reserve, which had led them to attach undue weight to the notion that capital gains ought not to be taxed under Schedule D, Case I: [26], [101]. Given that the Court allows the Revenues cross appeal, a majority preferred to express no view on section 83(3)(a). Lord Hope indicated that, had it been necessary to decide the point, he would have held in agreement with the majority in the Inner House that the relevant amounts would have been covered by section 83(3)(a): [28] [31].
This case is about the relationship between (a) the adjudication regime for building disputes and (b) a rule of insolvency law called insolvency set off. Adjudication was introduced by Parliament in 1996 to help resolve disputes in the building industry. Parties to a construction contract have the right to refer their disputes to an independent adjudicator for a quick decision. The adjudicators decision is binding unless and until it is successfully challenged in court. In the meantime, the losing party must comply with the adjudicators decision a principle known as pay now, argue later which is designed to stop financial disputes from holding up the projects cash flow. Insolvency set off means that, when a company enters liquidation and there are mutual debts between the company and one of its creditors, the debts in each direction automatically cancel each other out. This leaves a single net balance owed in one direction. The liquidator of the company will calculate the balance and decide how much the company owes or is owed overall. The facts of the case Bresco and Lonsdale are electrical contractors. In 2014 Bresco carried out installation work for Lonsdale on a construction site at 6 St Jamess Square, London SW1. In 2016 Bresco entered insolvent liquidation. Both parties claimed they were owed money by the other. Lonsdale said Bresco had abandoned the project prematurely, forcing them to pay 325,000 for replacement contractors. Bresco said Lonsdale had never paid for some work Bresco had done, so Lonsdale owed 219,000 in unpaid fees plus damages for lost profits. In 2018 Brescos liquidators took steps to refer their 219,000 claim to an adjudicator. Lonsdale objected to the adjudication. They said Brescos claim (if any) and Lonsdales cross claim had cancelled each other out by the process of insolvency set off. This meant there was no longer any claim, or therefore any dispute under the contract, so adjudication was unavailable (the jurisdiction point). In any case the adjudicators decision would not be enforced until the liquidator calculated the net balance. So an adjudication was pointless (the futility point). Mr Justice Fraser accepted both Lonsdales points and granted an injunction to stop the adjudication. Following an appeal by Bresco, the Court of Appeal rejected the jurisdiction point but upheld the injunction on the basis of the futility point. Bresco appealed again to the Supreme Court. Lonsdale cross appealed on the jurisdiction point. The Supreme Court unanimously allows the appeal and dismisses Lonsdales cross appeal, with the result that the adjudication can go ahead. Lord Briggs gives the only judgment. (1) The jurisdiction point The Supreme Court concludes that the adjudicator does have jurisdiction. The insolvency set off between Brescos claim and Lonsdales cross claim does not mean that there is no longer a dispute under the construction contract, or that the claims have simply melted away [47]. The claims maintained their separate identity for many purposes [29]. Despite insolvency set off, Bresco could have brought court proceedings to determine the value of its claim, or exercised a contractual right to go to arbitration [50 51]. It follows that Bresco could also refer its claim to adjudication [52]. (2) The futility point The Court of Appeal thought there was a basic incompatibility between adjudication and insolvency set off. If the adjudicator found in favour of Bresco, the courts would refuse to enforce the award because it would interfere with the insolvency process. The adjudication would not promote the goal of pay now, argue later: it was futile and a waste of resources [54 56]. The Supreme Court rejects that view [58]. Bresco has a statutory and contractual right to adjudication. It would ordinarily be inappropriate for the court to interfere with the exercise of that statutory and contractual right [59]. Maintaining cash flow is not the only purpose of adjudication under the 1996 Act. Adjudication was designed to be a method of alternative dispute resolution (ADR) in its own right. In reality most decisions of an adjudicator are never challenged in court and they lead to a speedy, cost effective and final resolution of the dispute [13 15]. Here an adjudication will be a simple, proportionate method for Brescos liquidators to determine the net balance [60 62]. It is possible that the courts will not grant summary enforcement of the adjudicators decision due to the insolvency process, but that does not deprive the adjudication of its potential usefulness to the liquidators [64 67].
The issue in this appeal is whether the appellant retained her right to reside in the United Kingdom as a worker pursuant to Article 7 of Directive 2004/38/EC (the Directive) during the period when she temporarily ceased to be employed by reason of the late stages of her pregnancy and early aftermath of childbirth. The appellant is a Frenchwoman who came to the UK in 2006. She worked in various jobs, mostly as a teaching assistant, enjoying the right of residence as a worker conferred by Article 7 of the Directive. By 12 March 2008 she was six months pregnant and she ceased taking agency positions working in nursery schools because the demands of this work were too strenuous. After a short period looking for lighter work she made a claim for income support on the advice of her doctor. It was refused by the respondent on the basis that she no longer held the status of worker, and was therefore a person from abroad who did not qualify for the benefit. Had she retained her right to reside as a worker under the Directive, she would have been entitled to income support under UK domestic law, which does not require a pregnant woman within 11 weeks of her expected date of confinement and for 15 weeks after the birth to be available for work. The appellants baby was born on 21 May 2008 and she returned to work three months later. Under Article 7(3) of the Directive, an EU citizen who is no longer working retains the status of worker in certain specified circumstances, including illness or accident, but these circumstances do not include ceasing to work by reason of late pregnancy or the immediate aftermath of childbirth. The appellant argued that under EU law a broad interpretation was given to the term worker, which did not necessarily depend on the actual or continuing existence of an employment relationship, and that it would be a substantial deterrent to the free movement of female workers, and amount to direct discrimination on grounds of sex, if they lost the right to reside around the time of giving birth. The respondent asserted, however, that Article 7 was intended to be a codification of the existing EU law on workers and women in the appellants position fell outside it. Any discrimination was on grounds of nationality, was indirect and was justified. The appellants appeals against the respondents refusal of income support were dismissed by the Upper Tribunal and the Court of Appeal. An appeal was made to the Supreme Court. The Supreme Court is obliged to refer questions of EU law to the Court of Justice for the European Union (the CJEU) if the application of the Directive in the circumstances of this case is not clear. The Supreme Court unanimously decides to refer two questions to the CJEU. The terms of the reference are set out by Lady Hale. The Supreme Court is not persuaded that the case of either appellant or respondent is clearly right and is therefore under a duty to refer the questions in issue to the CJEU. It considers it likely that the Directive codified the law as it then stood but that did not necessarily preclude further elaboration of the concept of worker to fit situations which had not been envisaged. Pregnancy and the immediate aftermath of childbirth (as opposed to leaving the workplace to look after children) are a special case, affecting only women, who will suffer comparative disadvantage in the workplace unless special account is taken of them. Equal treatment of men and women is one of the fundamental general principles of EU law and may lead to the development of the concept of worker by the CJEU to meet this particular situation. The following questions are therefore referred to the CJEU: 1. 2. Is the right of residence conferred upon a worker in Article 7 of the Citizenship Directive to be interpreted as applying only to those (i) in an existing employment relationship, (ii) (at least in some circumstances) seeking work, or (iii) covered by the extensions in Article 7(3), or is the Article to be interpreted as not precluding the recognition of further persons who remain workers for this purpose? (i) If the latter, does it extend to a woman who reasonably gives up work, or seeking work, because of the physical constraints of the late stages of pregnancy (and the aftermath of childbirth)? (ii) If so, is she entitled to the benefit of the national laws definition of when it is reasonable for her to do so?
This appeal concerns the procedure for collective proceedings in competition damages claims. This is the first collective proceedings case of this kind to reach the Supreme Court. It addresses important questions about the correct legal requirements for certification of a claim. Mr Merricks claim arises out of the European Commissions decision in December 2007 that the appellants (Mastercard) breached competition law by fixing a default interchange fee as part of their payment card schemes between May 1992 and December 2007 (the Commission Decision). These payment card schemes allow consumers to purchase goods and services from retailers by card. The details of the scheme are at [6 8] and they were also considered by the Supreme Court earlier this year ([2020] UKSC 24). Mr Merricks issued a collective proceedings claim form against Mastercard under section 47B(1) of the Competition Act 1998 as amended (the Act). In the claim form, Mr Merricks argues that the difference between the interchange fee banks would have paid but for Mastercards breach of competition law, and the interchange fee that they did in fact pay, is an overcharge which retailers paid to their banks and crucially, which retailers then passed onto their customers. As a result, he argues that consumers paid higher prices for goods and services than they would otherwise have done. Mr Merricks seeks to bring the collective proceedings as the class representative on behalf of all UK resident adult consumers of goods and services purchased in the UK during the infringement period from retailers accepting Mastercard, unless the consumer opts out (the class). He seeks an award of damages for the whole class (an aggregate award), rather than damages for the claim of each class member [11 13]. To proceed with his collective proceedings claim, Mr Merricks needs the Competition Appeal Tribunal (the CAT) to certify the claim by making a Collective Proceedings Order (CPO) under section 47B of the Act. To certify a claim, the CAT must be satisfied that two main criteria have been met. First, that it is just and reasonable for Mr Merricks to act as the class representative (sections 47B(5)(a) of the Act). Second, that the claims are eligible for inclusion in collective proceedings (section 47B(5)(b) of the Act), which means that the claims all raise common issues of fact or law and are suitable to be brought in collective proceedings (section 47B(6) of the Act). The CAT refused to make a CPO as the claims failed this second requirement because: (1) the claims were not suitable for an aggregate award of damages per rule 79(2)(f) of the Competition Appeal Tribunal Rules 2015 (the CAT Rules) (the suitability for aggregate damages issue); and (2) Mr Merricks proposed distribution of any award did not satisfy the compensatory principle in common law, which the CAT considered relevant under rule 79(2) of the CAT Rules (the distribution issue). The Court of Appeal allowed Mr Merricks appeal, finding that the CAT had made five errors of law. Mastercard appealed to the Supreme Court. The Supreme Court dismisses Mastercards appeal. It agrees with the Court of Appeal that the CATs decision is undermined by error of law and sends Mr Merricks application for a CPO back to the CAT. Lord Briggs gives the main judgment, with which Lord Thomas agrees. Lord Kerr had agreed that the appeal should be dismissed for the reasons set out in Lord Briggs judgment prior to his retirement on 30 September 2020. Three days before the judgment was initially due to be handed down, Lord Kerr sadly died. The President of the Supreme Court re constituted the panel under section 43(4) of the Constitutional Reform Act 2005 to consist of Lord Briggs, Lord Sales, Lord Leggatt and Lord Thomas. Lord Sales and Lord Leggatt give a combined separate judgment in which they disagree with Lord Briggs reasoning in part. They do not dissent as they recognise that they were in the minority and the pure happenstance that Lord Kerr died after completion of the judgments, but just before they could be handed down, should not mean that the case has to be re heard due to an evenly divided panel [82 83]. Collective proceedings are a special form of civil procedure. They are designed to provide access to justice and ensure the vindication of private rights where an ordinary individual civil claim would be inadequate for that purpose. This purpose helps interpret the legal requirements of the certification process [45]. An important element of the background to collective proceedings is that courts frequently have to deal with difficult issues in calculating damages. Courts do not deprive an individual claimant of a trial merely because of these quantification issues, provided there is a triable issue that the claimant has suffered more than nominal loss [46 47]. If these issues would not have prevented an individual consumers claim from proceeding to trial, the CAT should not have stopped the collective proceedings claim at the certification phase [56]. This fundamental requirement of justice that the court must do its best on the available evidence in relation to damages is the broad axe principle and it applies to competition cases [51]. Justice requires that damages be quantified in order to vindicate a claimants rights and to ensure that a defendant pays to reflect the wrong done, especially where anti competitive conduct may never otherwise be restrained if individual consumers are unable to bring claims [53 54]. Another important element is to understand the meaning of suitable, both under section 47B(6) of the Act which requires the claims to be suitable to be brought in collective proceedings, and in rule 79(2)(f) which says that they must be suitable for an aggregate award of damages. Suitable means suitable relative to individual proceedings. Therefore, the CAT should have asked itself whether the claims were suitable to be brought in collective proceedings as compared to individual proceedings, and suitable for an award of aggregate damages as compared to individual damages [56 57]. Against this background, the Supreme Court finds that the CAT made five errors of law [64]. First, it failed to recognise that in addition to overcharge, the merchant pass on issue was also a common issue (as the Court of Appeal had found and which was not appealed to the Supreme Court). This should have been a powerful factor in favour of certification (rule 79(2)(a) of the CAT Rules) [66]. Second, the CAT placed great weight on its decision that the case was not suitable for aggregate damages. This is a relevant factor for certification, but it is not a condition [61, 67 69]. Third, the CAT should have applied a test of relative suitability. If the forensic difficulties would have been insufficient to deny a trial to an individual claimant, they should not have been sufficient to deny certification for collective proceedings [70 71]. Fourth (the most serious error), the CAT was wrong to consider that difficulties with incomplete data and interpreting the data are a good reason to refuse certification. Civil courts and tribunals frequently face problems with quantifying loss and the CAT owes a duty to the class to carry out the task in a case of proven breach of statutory duty coupled with a realistically arguable case that some loss was suffered [72 74]. Fifth, the CAT was wrong to require Mr Merricks proposed method of distributing aggregate damages to take account of the loss suffered by each class member. A central purpose of the power to award aggregate damages in collective proceedings is to avoid the need for individual assessment of loss and the Act expressly modifies the ordinary requirement for the separate assessment of each claimants loss [58, 77]. Lord Sales and Lord Leggatt agree with Lord Briggs that the CAT was wrong to refuse certification on the distribution issue [148 150]. However, they disagree on the suitability for aggregate damages issue. They consider that the CAT applied the test to determine the suitability of a class of claims for an aggregate award of damages under section 47C(2) of the Act correctly and thus the CAT was entitled to conclude that the claims were not suitable to be brought in collective proceedings [167 169]. Their key reasons are at [111, 116 119, 121, 124, 153, 156 166].
These appeals concern the obligations of insurance companies under various contracts of employers liability (EL) insurance. In particular, the appeals concern the scope of the insurers obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later. The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendants negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employees mesothelioma was caused by exposure to asbestos during a particular policy year. At first instance Burton J held that the policies should all be interpreted as having a causation wording. He therefore held that the liability trigger under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed. A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease contracted during the relevant insurance period); however they concluded that other policies (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma sustained or contracted at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employees body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an employee sustained or contracted mesothelioma during a particular policy period? The Supreme Court dismisses the insurers appeal by a 4 1 majority; Lord Phillips dissenting on the second issue. Lord Mance gives the main judgment. To resolve the meaning of the EL policies it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more generally [19]. Several features point the way to the correct construction. First, the wordings of the policies on their face require the course of employment to be contemporaneous with the sustaining of the injury [20]. Second, the wordings demonstrate a close link between the actual employment undertaken during each period and the premium agreed by the parties for the risks undertaken by the insurers in respect of that period. Third, on the insurers case there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to disease or injury in another later period [24]. Fourth, on the insurers case employers would be vulnerable to any decision by the insurers not to renew the policy. A decision not to renew might arise from the employers complying with their duty to disclose past negligence upon any renewal. Employers who discovered that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease would have such a duty. The insurers could then simply refuse any renewal or further cover [25]. Fifth, the way most of the policies deal with extra territorial issues throws doubt on any suggestion that the wordings are so carefully chosen that a court should stick literally to whatever might be perceived as their natural meaning [28]. Section 1 of the Employers Liability Compulsory Insurance Act 1969 also points the way to the correct interpretation. This states that every employer shall insure, and maintain insuranceagainst liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment. In order to give proper effect to the protective purpose of that legislation, the Act requires insurance on a causation basis [47]. There is no difficulty in treating the word contracted as looking to the causation of a disease, rather than its development or manifestation. The word contracted used in conjunction with disease looks to the initiating or causative factor of the disease [49]. While the word sustained may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later [50]. In relation to the second issue, the question is whether the EL policies cover employers liability for mesothelioma arising under the special rule in Fairchild/Barker [71]. Under that rule the law accepts a weak or broad causal link between the employers negligence and the employees mesothelioma. When construing the EL policies the concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule [74]. The purpose of the EL policies was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies [88]. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurers obligation to indemnify the employer [74]. Lord Phillips dissents on the second issue. The special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. This conclusion is not affected by section 3 of the Compensation Act 2009, which did not alter the jurisprudential basis of the Fairchild/Barker approach [132] [133].
This judgment deals with two English cases, while a separate judgment deals with the Scottish case Eba v Advocate General for Scotland. The issue common to all three is the scope for judicial review by the High Court or Court of Session of unappealable decisions of the Upper Tribunal established under the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act). In all of them the claimant failed in an appeal to the First tier Tribunal and was refused permission to appeal to the Upper Tribunal against that decision both by the First tier Tribunal and by the Upper Tribunal. In all three the claimant seeks a judicial review of the refusal of permission to appeal by the Upper Tribunal. The tribunal systems with which the three cases are concerned, both before and after their restructuring in the 2007 Act, are common to both parts of the United Kingdom, and in many contexts also to Northern Ireland. Part 1 of the 2007 Act established a new unified tribunal structure, which accommodates a diversity of jurisdictions. There is a right of appeal to the Court of Appeal, in England and Wales or Northern Ireland, or the Court of Session in Scotland, on any point of law arising from a decision made by the Upper Tribunal other than an excluded decision (s 13(1), (2)). Excluded decisions include any decision of the Upper Tribunal on an application for permission or leave to appeal (s 13(8)(c)). Mr Cart appealed to the Social Security and Child Support Tribunal (whose jurisdiction has since been taken over by the First tier Tribunal) against the refusal of the Child Support Agency to revise a variation in the level of child maintenance to be paid to his ex wife. His appeal was dismissed. He applied for permission to appeal to the Child Support Commissioners (whose functions were subsequently taken over by the Administrative Appeals Chamber of the Upper Tribunal). Commissioner Jacobs gave him permission to appeal on three grounds but refused him permission to appeal on a fourth. The Upper Tribunal dismissed his appeal on the first three grounds and declined permission to reopen the fourth. Mr Cart sought judicial review of the Upper Tribunals refusal of permission to appeal on the fourth point. Determining the amenability of the Upper Tribunal to judicial review as a preliminary issue, the Divisional Court dismissed his claim for judicial review, holding that this was only available in exceptional circumstances. The Court of Appeal dismissed his appeal, reaching the same result but by a different route. MR is a native of Pakistan whose application for asylum was refused. His appeal to the Immigration and Asylum chamber of the First tier Tribunal was dismissed. Both the First tier Tribunal and then the Upper Tribunal refused his application for permission to appeal to the Upper Tribunal. MR sought judicial review of the Upper Tribunals refusal of permission to appeal. Sullivan LJ dismissed the judicial review claim in accordance with the decision of the Court of Appeal in Cart. He granted a certificate so that the appeal against his decision could leap frog over the Court of Appeal and be heard by this Court together with the appeals in Cart and Eba. The Supreme Court unanimously dismisses the appeals but on a different basis from that adopted in the Divisional Court and the Court of Appeal. It decides that permission for judicial review should only be granted where the criteria for a second tier appeal apply, that is where there is an important point of principle or practice or some other compelling reason to review the case. Lady Hale gives the leading judgment. The scope of judicial review is an artefact of the common law whose object is to maintain the rule of law. The question is, what machinery is necessary and proportionate to keep mistakes of law to a minimum? What level of independent scrutiny outside the tribunal structure is required by the rule of law? [37], [51] There are three possible approaches which the Court could take. First, that the scope of judicial review should be restricted to the exceptional circumstances identified in the Divisional Court and Court of Appeal, namely pre Anisminic excess of jurisdiction and the denial of fundamental justice (and possibly other exceptional circumstances). Second, that unrestricted judicial review should be available. Third, that judicial review should be limited to the grounds upon which permission to make a second tier appeal to the Court of Appeal would be granted, namely (a) the proposed appeal would raise some important point of principle or practice, or (b) there is some other compelling reason for the court to hear the appeal. [38] While the introduction of the new system may justify a more restricted approach, the exceptional circumstances approach is too narrow, leaving the possibility that serious errors of law affecting large numbers of people will go uncorrected. As regards the second approach, it is well known that the High Court and Court of Appeal were overwhelmed with judicial review applications in immigration and asylum cases until the introduction of statutory reviews. The mere fact that something has been taken for granted without causing practical problems in the social security context until now does not mean that it should be taken for granted forever. [44], [47], [51] The adoption of the second tier appeals criteria would be a rational and proportionate restriction upon the availability of judicial review of the refusal by the Upper Tribunal of permission to appeal to itself. It would recognise that the new and in many ways enhanced tribunal structure deserves a more restrained approach to judicial review than has previously been the case, while ensuring that important errors can still be corrected. It is a test which the courts are now very used to applying. It is capable of encompassing both the important point of principle affecting large numbers of similar claims and the compelling reasons presented by the extremity of the consequences for the individual. There is clearly nothing in Mr Cart or MRs cases to bring them within the second tier appeal criteria. [57], [59], [128], [130], [131], [133] Per Lord Phillips. Where statute provides a structure under which a superior court or tribunal reviews decisions of an inferior court or tribunal, common law judicial review should be restricted so as to ensure, in the interest of making the best use of limited judicial resources, that this does not result in a duplication of judicial process that cannot be justified by the demands of the rule of law. [89]
Trump International Golf Club Scotland Ltd (TIGC) has developed a golf resort at Menie Estate and Menie Links, Balmedie, Aberdeenshire. In 2011, Aberdeen Offshore Wind Farm Ltd applied for consent under s.36 of the Electricity Act 1989 (the 1989 Act) to construct and operate the European Offshore Wind Deployment Centre in Aberdeen Bay. The application concerned the construction of up to 11 wind turbines, which might be of different sizes, with a maximum power generation of 100 MW. The proposed windfarm would be located about 3.5km from the golf resort and would be seen by people at the resort. TIGC opposed the application. In March 2013, the Scottish Ministers granted consent (the Consent) for the development and operation of the windfarm subject to conditions. TIGC challenged the Consent on various grounds in the Scottish courts without success [1]. TIGC appealed to the Supreme Court on two remaining grounds, arguing that the Consent should be quashed: (a) because the Scottish Ministers had no power under the 1989 Act to grant consent to the windfarm application as only the holder of a licence to generate, transmit, or supply electricity granted under s.6, or a person exempted under s.5 from holding such a licence may apply under s.36 (the Section 36 Challenge); and (b) because condition 14 of the Consent, which requires the submission and approval of a design statement, is void for uncertainty (the Condition 14 Challenge) [2]. The Supreme Court unanimously dismisses the appeal by TIGC. The leading judgment is given by Lord Hodge, with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Carnwath agree. Lord Mance and Lord Carnwath each give concurring judgments. Section 36 Challenge TIGCs Section 36 Challenge is rejected. It is not supported by the structure and language of the 1989 Act [8 13]. Further, there is nothing in the policy background to the 1989 Act which requires the Court to take a different view of the statutory provisions. There are five reasons for this [14]: (1) The 1989 Act aimed to liberalise the British electricity market by privatisation. The policy did not address who would construct generating stations, and it was not a necessary part of the policy that the persons who built generating stations would also be the persons generating the electricity [15]. (2) The 1989 Act contains two separate regulatory regimes: (a) one for the construction of generation stations and overhead lines, and (b) one for the licensing of electricity supply, including generation. Since devolution, there have been separate regulators for those activities in Scotland [16]. (3) Parliament did not create a regulatory gap by allowing persons who are not subject to environmental duties under para 3(1) of Schedule 9 to apply for construction consents under s.36. The Scottish Ministers have a duty when considering a s.36 application to have regard to environmental matters, and wide powers to impose conditions to protect the environment [17]. (4) There is no need to require a s.36 applicant to hold in advance a generating licence or exemption, as the Scottish Ministers may (pursuant to s.36(5)) include appropriate conditions in a consent [18]. (5) It is established practice in both British jurisdictions for commercial organisations to apply for and obtain s.36 consents before they seek a licence to generate electricity, or an exemption [19]. Condition 14 Challenge The short answer to this challenge is that, even if condition 14 were unenforceable, the Consent would not be invalidated. Condition 7 requires that the development be constructed in accordance with the supplemental environmental information statement (SEIS) which covers important elements of the benefits promoted by condition 14, and the Scottish Ministers can insist on compliance with the SEIS. Further, the scope of the development is defined by Annex 1 of the Consent and the SEIS specifies the maximum size and location of the turbines. Condition 14 is not therefore a fundamental condition determining the scope and nature of the development which, if invalid, would invalidate the Consent [24 26]. Even if condition 14 could not be enforced, a planning condition is only void for uncertainty if it can be given no sensible or ascertainable meaning. This cannot be said for condition 14, which provides that the Scottish Ministers must approve the design statement before the development can begin [27]. Further, condition 14 is not invalid owing to any uncertainty as to what amounts to compliance with its terms. Construing the conditions as a whole (in particular conditions 13 and 24), it is clear that the Consent contains a mechanism enabling the Scottish Ministers to use both the construction method statement and the design statement to regulate the design of the windfarm in the interests of environmental protection, and to require compliance with those statements [28 30]. Given those conclusions, it is unnecessary to consider whether terms could be implied into the Consent [31]. Had it been necessary, however, an inference would have been drawn that the Consent read as a whole required the developer to conform to the design statement [37]. There is not a complete bar on implying terms into planning permissions, and the planning legislation cases relied on by TIGC which suggest otherwise are not directly applicable to conditions under the 1989 Act given the different statutory language [32]. Whether words are implied into a document depends on the interpretation of the express words and, while restraint is required when implying terms into public documents with criminal sanctions, there is no reason for excluding implication altogether [33 36]. Finally, the flexibility conferred on the Scottish Ministers in conditions 7 and 13 to modify the way in which the windfarm is constructed and operated does not invalidate those conditions, as the Scottish Ministers are not able to alter the nature of the approved development [38 39]. Lord Mance provides some comments on the process of implication of terms [41 44]. Lord Carnwath agrees that the planning cases do not assist in this appeal, given the differences between the statutory schemes [67 70], but he provides some guidance on the principles of interpretation derived from them [45]. He considers that the process of interpreting a planning permission does not differ materially from that appropriate to other legal documents and that there is no reason to exclude implication as a technique of interpretation where it is justified [46 66].
On 24 October 2007 Mr Perry, was convicted in Israel of a number of fraud offences in relation to a pension scheme that he had operated in Israel. He was given a substantial prison sentence and paid a fine of approximately 3m. The Serious Organised Crime Agency (SOCA) is now seeking to deprive Mr Perry, together with members of his family and entities associated with them, of assets obtained in connection with his criminal conduct, wherever in the world those assets may be situated. None of these persons resides in the United Kingdom. As a preliminary step, aimed at ensuring that its action to recover assets is effective, SOCA obtained a worldwide property freezing order (PFO) against Mr Perry, his wife and Leadenhall Property Limited (the PFO appellants). Before that, it had obtained a disclosure order (DO) under which notices requesting information were given to Mr Perry and his daughters (the DO appellants) by letter addressed to Mr Perrys house in London. The PFO appellants challenged the PFO on the basis that a civil recovery order could only be made in respect of property that was within the territorial jurisdiction of the court making it. The DO appellants contended that notices under the DO could not be addressed to persons who were not within the UK. In the PFO matter, the High Court ruled that the provisions of the Proceeds of Crime Act 2002 (POCA) relied on by SOCA did apply, save as to orders made in Scotland, to property outside the jurisdiction and upheld the scope of the PFO. An appeal from this decision was dismissed by the Court of Appeal on 18 May 2011. Earlier, the Court of Appeal had also upheld the validity of the notices requesting information given to the DO appellants under the DO. Appeals against the PFO and the DO notices were brought to the Supreme Court and were heard together. The Supreme Court allows both appeals: the PFO appeal by a majority (Lord Judge and Lord Clarke dissenting) and the DO appeal unanimously. Lord Phillips (with whom Lady Hale, Lord Brown, Lord Kerr and Lord Wilson agree) gives the main judgment. Lord Reed and Sir Anthony Hughes give shorter concurring judgments. Lord Judge and Lord Clarke give a joint dissenting judgment on the PFO appeal. SOCAs application was pursuant to the powers in Part 5 of POCA for the court to make a civil recovery order in respect of property which is, or represents, property obtained through criminal conduct. The applicable definition of the term property is in section 316(4) which provides that property is all property wherever situated. However, many of the provisions referring to property in POCA plainly apply only to property within the UK and the scope of the term depends on its context. Thus the definition should not have been given the weight it had carried in the courts below [14]. Although there was a presumption under principles of international law that a statute does not have extraterritorial effect, states have departed from this by agreement in the case of confiscating the proceeds of crime. POCA must be read in the light of the Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, which recognises that the courts of state A may seek to seize property in state B which is the proceeds of the criminal conduct of a defendant subject to the criminal jurisdiction of state A [18 29]. Parts 2, 3 and 4 of POCA provide for (a) the imposition of personal obligations in respect of property worldwide; (b) proprietary measures to secure and realise property within the UK and (c) requests to be made to other states to take such measures in respect of property within their territories. This represents a coherent international scheme which accords with the Strasbourg Convention and with principles of international law [31 38]. The purpose of Part 5 of POCA is to enable recovery in civil proceedings in each part of the UK of property which is or represents property obtained through unlawful conduct. The focus is on the property rather than a particular defendant. In their natural meaning, and in the absence of provisions corresponding to those for enforcement abroad in Parts 2, 3 and 4, the provisions of Part 5 apply only to property within the UK [53 56, 136]. The only anomaly with this analysis was the presence of section 286(2) POCA which purported to create a different position in Scotland from that in the rest of the UK. There was no satisfactory explanation for this and it remained an enigma [75 77] (Lord Reed thought it may have reflected a misunderstanding [152]), but it did not alter the overall conclusion that the High Court of England and Wales had no jurisdiction under Part 5 to make a recovery order in relation to property outside England and Wales. Thus the property covered by the PFO must be limited to such property, and the appellants could not be required under it to disclose all their worldwide assets [78 82]. The notices under the DO were given to persons who were, and were known by SOCA to be, outside the jurisdiction of the UK. Compliance with such orders was subject to penal sanction. It was generally contrary to international law for country A to purport to make criminal conduct in country B committed by persons who are not citizens of country A. It was therefore implicit that the power to impose positive obligations to provide information could only be exercised in respect of persons who were within the UK and the DO did not authorise the sending of notices to persons outside the UK [94, 98]. Lord Judge and Lord Clarke, dissenting on the PFO appeal, agreed that POCA was poorly drafted but held that the objective was clearly to deprive criminals of the proceeds of their crimes, whether here or abroad [160]. The expression all property wherever situated should have the same meaning in all sections in which it appeared [164]. Control mechanisms had been created in Part 5 to ensure that orders made could avoid any improper extra territorial effect or infringement of the principle of sovereignty. Recovery orders took personal effect and, in respect of foreign property, were subject to the local law [167].
This pre trial appeal concerns a point of pure statutory construction. The Respondents face charges of knowingly making false declarations in relation to election expenses, or aiding and abetting or encouraging or assisting such offences. The parties asked the judge to determine the point on a preparatory hearing, pursuant to Part III of the Criminal Procedure and Investigations Act 1996. The question of law certified by the Court of Appeal (Criminal Division) as a point of law of general public importance is as follows: Do property, goods, services or facilities transferred to or provided for the use or benefit of a candidate free of charge or at a discount (as identified in section 90C(1)(a) of the Representation of the People Act 1983 (as amended)) only fall to be declared as election expenses if they have been authorised by the candidate, his election agent or someone authorised by either or both of them? The Court of Appeal held that section 90C of the Representation of the People Act 1983 (the RPA 1983) requires authorisation of expenses before the need for them to be declared arises. The Supreme Court unanimously allows the appeal, answering the certified question in the negative. Lord Hughes gives the judgment with which the other justices agree. The concept of authorisation of expenses is frequently resorted to in the legislation [16]. The critical question is whether this concept also governs the notional expenditure provision in section 90C of RPA 1983 [17]. Section 90C asks, by subsections (1)(a) and (b), three questions about the notional expenditure it is considering. If the answer to all of these questions is yes, then subsection (2) stipulates that the expenditure shall be treated as incurred by the candidate for the purposes of the Act. The questions, which equally apply to goods, property or facilities, are: 1. Were the services provided for the use or benefit of the candidate either free of charge or at a discount of more than 10% of commercial value; 2. Were they made use of by or on behalf of the candidate; and 3. If the services had actually been paid for (expenses actually incurred) by or on behalf of the candidate, would those expenses be election expenses incurred by or on his behalf (and thus subject to the various controls imposed by the Act)? [18] There is no room in these questions for an additional requirement that the provision of services must have been authorised by the candidate or his election agent, or by someone authorised by either of them. The test is whether the goods, property or facilities are used by, or on behalf of, the candidate. This differs from the test in section 90ZA(4) of RPA 1983 for expenses actually incurred which does require authorisation. The ambit of the use test is not resolved by the question asked and will depend on the facts as they emerge in each case. [19, 25]. Section 90ZA(1) confirms this analysis by the express provision that the definition of election expenses therein is subject to section 90C. Rather than 90C incorporating the words of 90ZA(4), it imports an additional category of expenditure to be included in 90ZA(4), namely expenses notionally incurred by the candidate [20]. The plain reading of the Act cannot be displaced by possibly inconvenient or even newly recognised consequences [27 28]. The point that the candidate and election agent risk the commission of criminal offences is well made. The more serious offence of knowingly making false declarations requires a dishonest state of mind. While the strict liability offence is different, section 86 of the Act provides for relief from sanctions where the offence has been committed despite good faith [29].
RFC 2012 Plc (RFC) was a member of a group of companies whose parent company was Murray International Holdings Ltd. By a deed dated 20 April 2001, Murray Group Management Ltd, which was also a member of the group, set up a trust known as the Remuneration Trust (the Principal Trust). When a group company wished to benefit an employee it made a payment to the Principal Trust. On payment, the employing company asked the trustee of the Principal Trust to resettle the sum on to a sub trust and requested that the sub trust income and capital should be applied in accordance with the employees wishes. The trustee of the Principal Trust had a discretion whether to comply with those requests, but, in practice, the trustee without exception created the requested sub trust. The employee was appointed as protector of the sub trust with the power to change its beneficiaries. When RFC negotiated the engagement of a footballer, RFC would explain the sub trust mechanism, in particular, that the prospective employee could obtain a loan of the sum paid to the sub trust from its trustee which would be greater than the payment net of tax deducted under PAYE if he were to be paid through RFCs payroll. The trust fund would be held for the benefit of the beneficiaries of the sub trust, being members of the footballers family whom he specified. On the footballers death, the loans and interest would be repayable out of his estate, thereby reducing its value for Inheritance Tax purposes. RFC used the same mechanisms in paying discretionary bonuses to its senior executives. The Income Tax (Earnings and Pensions Act) 2003 (ITEPA) governs RFCs liability to income tax on employment income during the relevant tax years from 2003/04 to 2008/09. Section 6 imposes a tax on general earnings. Section 7 defines general earnings by reference to section 62. Section 62(2) provides [E]arnings, in relation to an employment, means (a) Any salary, wages or fee, (b) Any gratuity or other profit or incidental benefit of any kind obtained by the employee if it is money or moneys worth, or (c) Anything else that constitutes an emolument of the employment. The Income and Corporation Taxes Act 1988 (ICTA) applied in the tax years 2001/02 and 2002/003. The relevant provisions in ICTA, under which income tax is charged on emoluments, are essentially to the same effect as those in ITEPA. In accordance with the Income Tax (Employments) Regulations 1993 and the Income Tax (Pay As You Earn) Regulations 2003 (the PAYE Regulations), employers who pay emoluments or earnings which are assessable to tax are required to deduct income tax from their payments to their employees under the pay as you earn (PAYE) regime. Under the PAYE Regulations, HM Revenue and Customs Commissioners determined that RFC had failed to pay income tax and National Insurance Contributions (NICs) on the sums paid to the trusts as remuneration. The parties to the appeal agreed that the determination of the appeal in relation to income tax governs the liability to NICs. The First tier Tribunal (the FTT) held that the scheme was effective in avoiding liability to income tax and NICs because the employees had only received a loan of the moneys paid to the trusts. The Upper Tribunal (Tax and Chancery Chamber) upheld the FTTs decision. The Inner House allowed HMRCs appeal. It held that income derived from an employees work is assessable to income tax, even if the employee agrees that it be redirected to a third party. The central issue in this appeal is whether it is necessary that the employee should himself or herself receive, or at least be entitled to receive, the remuneration for his or her work in order for that payment to amount to taxable earnings. The Supreme Court unanimously dismisses RFCs appeal. Lord Hodge gives the judgment, with which the other Justices agree. Three aspects of statutory interpretation are important in determining this appeal. First, provisions in the tax code imposing specific tax charges do not militate against the existence of a more general charge to tax which may have priority over or qualify the specific charge. Secondly, it is necessary to pay close attention to the statutory wording and not be distracted by judicial glosses which have enabled the court to apply the statutory words in other factual contexts. Thirdly, a purposive approach to the interpretation of the taxing provisions must be adopted [15]. As a general rule, the charge to tax on income extends to money that the employee is entitled to have paid as remuneration irrespective of whether it is paid to the employee or to a third party [41]. The relevant ICTA and ITEPA provisions do not restrict the concept of earnings by requiring payment to a specific recipient [38]. Section 62(2)(b) ITEPA confines the charge on perquisites and profits to benefits received by the employee, but there is no such restriction in section 62(2)(a) or 62(2)(c) [49]. Nothing in the wider purpose of the legislation excludes from the tax charge remuneration which the employee is entitled to have paid to a third party [39]. Parliament has sought to tax remuneration paid in money or moneys worth. There is no rationale for excluding from the scope of this tax charge remuneration in the form of money which the employee agrees should be paid to a third party [59]. For the purposes of PAYE it is necessary to determine whether there has been a payment of earnings from which deductions were required. Misplaced reliance on judicial glosses in relation to the concept of payment is evident in the case law leading up to the appeal [51]. There is no basis for establishing a general rule that a payment is made for the purposes of PAYE only if the money is paid to or at least placed unreservedly at the disposal of the employee [54]. The references to making a relevant payment to an employee or other payee in the PAYE Regulations fall to be construed as payment either to the employee or to the person to whom payment is made with the agreement of the employee [58]. The sums paid to the trustee of the Principal Trust for a footballer constituted the footballers earnings [64]. The risk that the trustee might not set up a sub trust or give a loan of the sub trust funds to the footballer does not alter the nature of the payments made to the trustee of the Principal Trust [65]. The discretionary bonuses made available to RFCs employees through the same trust mechanisms also fall within the tax charge as these were given in respect of the employees work [66]. Payment to the Principal Trust should have been subject to deduction of income tax under the PAYE Regulations [67]. As the sums paid into the Principal Trust were earnings in the first place, the specific provisions of the tax code which deem the benefit of loans to be earnings cannot apply [69].
The appellants are 14 lead claimants in claims by over 600 Iraqi citizens who claim to have suffered unlawful detention and/or physical maltreatment at the hands of British armed forces in Iraq between 2003 and 2009. The claims are brought in tort in England against the Ministry of Defence. The torts are governed by Iraqi law. The Foreign Limitation Periods Act 1984 provides that where a claim is brought in England which is governed by a foreign law, the English courts are to apply the foreign law of limitation. In a substantial number of these cases the action was begun more than three years after the relevant claimant became aware of the injury and the person who caused it, and was therefore time barred under article 232 of the Iraqi Civil Code. The appellants argued that time had been suspended for limitation purposes under article 435(1) of the Civil Code, which suspends the time limit during any period when there is [an] impediment rendering it impossible for the plaintiff to claim his right. They said that Coalition Provisional Authority Order 17 (CPA Order 17), which gave coalition forces immunity from Iraqi legal process and jurisdiction and still has force of law in Iraq, was such an impediment. The first instance judge directed the hearing of a preliminary issue, namely whether the suspensory proviso in article 435(1) applied to the claimants proceedings in England. He held that the limitation period was suspended under article 435(1). The Court of Appeal allowed the Ministry of Defences appeal, holding that article 435(1) was not engaged, because the English courts are not bound to apply CPA Order 17, which is a mere procedural bar that is irrelevant to proceedings in England. The Supreme Court unanimously dismisses the appeal by the Iraqi civilians, and affirms the Court of Appeals conclusion that the limitation period was not suspended under article 435(1) of the Iraqi Civil Code. Lord Sumption gives the only judgment, with which the other Justices agree. The Foreign Limitation Periods Act 1984 requires an English court to apply to English proceedings a foreign law of limitation which will have been designed for proceedings in the foreign country. This requires a process of transposition. Facts that the foreign law would have treated as relevant to the foreign proceedings might be irrelevant to the proceedings in England [13]. Where the Iraqi law of limitation depends on some fact about the proceedings, the English court must ask whether that fact is applicable to proceedings brought in England, and not to hypothetical proceedings that might have been brought in Iraq [15]. CPA Order 17 applies only in Iraq. It is not an impediment to the only relevant proceedings, which are in England. It does not therefore suspend the running of the Iraqi law limitation period [16].
At the heart of this appeal is whether a breach of certain provisions of the Electricity Supply Regulations 1988 can give rise to a private right of action. In March 1998 Mr Brian Pritchers owned two buildings, at 23 and 25 Moss Street, Paisley. The tenants of the ground floor shop at number 23 were Morrison Sports Ltd. On 6 March 1998 the building at number 23 was destroyed by fire. Two other buildings were also damaged. Investigations identified the seat of the fire as an electricity meter cupboard in number 23. Those affected by the fire, who are now the respondents, raised three separate actions for damages against Scottish Power UK plc. All three actions are framed in the same way. The respondents aver that it was the presence of a shim fitted by employees of Scottish Power that was the cause of the fire. Scottish Power deny that the shim was fitted by their employees. One of the bases on which the respondents seek to hold Scottish Power liable is that the fire was caused by Scottish Powers breach of their statutory duty under regulations 17, 24 and 25 relating to a suppliers works of the 1988 Regulations. The 1988 Regulations were made by the Secretary of State by virtue of his powers under section 16 of the Energy Act 1983. Part I of the 1983 Act, including section 16, was repealed by the Electricity Act 1989, but the power to make regulations was maintained in section 29 of the new Act. Scottish Power now accept that the 1988 Regulations have effect as if they were made under section 29 of the 1989 Act. The difference between section 16 of the 1983 Act and section 29 of the 1989 Act and, hence, the point in dispute in the Court of Session lies in the concluding words of section 29(3). Section 29(3) of the 1989 Act, but not section 16(3) and (4) of the 1983 Act, provides that nothing in subsection (3) shall affect any liability of any such person to pay compensation in respect of any damage or injury which may have been caused by the contravention. The Extra Division thought that, by enacting section 29(3), Parliament had indeed made specific provision for a private right of action for damages for loss caused by breaches of the regulations. They therefore considered that in section 29(3) Parliament had introduced an important private right of action for damages by reservation. Scottish Power appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. It holds that contraventions of regulations 17, 24 and 25 of the 1988 Regulations do not give rise to a private right of action. The judgment of the Court is delivered by Lord Rodger. There is no basis whatever for thinking that the drafter of section 29(3) of the 1989 Act intended to introduce a civil right of action but somehow botched that comparatively straightforward task and came up with the words in the subsection which are so singularly ill suited to the supposed purpose. Far from itself providing that a person who contravenes a provision should be liable to pay compensation, the subsection merely confirms that the liability to the criminal penalty is not to affect any liability of the offender to pay compensation. By any liability Parliament means the offenders liability, if any, to pay compensation, for which regulations made under section 29 may provide [paras 16 and 27]. The language used in the subsection reflects language used in earlier regulations. On the other hand there is nothing to show why the tailpiece was omitted from section 16(4) of the 1983 Act [paras 18 22]. There are indications in the overall legislative scheme that a breach of the relevant provisions of the 1988 Regulations would not give rise to a private law statutory right of action. First, there are provisions in the 1989 Act and the 1988 Regulations that point strongly to the conclusion that the regulations are to be enforced by the Secretary of State and those appointed to act on his behalf, rather than by individuals raising private actions [paras 30 32]. In addition, there are provisions in the 1988 Regulations which envisage situations where a consumer may be in breach of a requirement of the 1988 Regulations and where that breach may give rise to a risk of danger to others. If the respondents argument were correct, the 1988 Regulations would confer a right of action against individual consumers of electricity for any failure to comply with a requirement under these provisions. It seems unlikely that Parliament intended the legislation to operate in that way [para 35]. If it really were the case that a supplier could be held liable in damages for a contravention of any regulations made under section 29 of the 1989 Act, then the protection afforded by section 21(b) of the Act (under which a supplier of electricity under section 16(1) of the Act may require any person who requires a supply of electricity to accept any terms restricting any liability of the supplier for economic loss resulting from negligence which it is reasonable in all the circumstances for that person to be required to accept) would be ineffective in the situation where the suppliers negligence constituted a contravention of the regulations [para 36]. That no private right of action is available is reinforced by the fact that it is difficult to identify any limited class of the public for whose protection the 1988 Regulations were enacted and on whom Parliament intended to confer a private right of action for breach of the provisions of the Regulations. One of the necessary preconditions of the existence of a private law cause of action is that the statutory duty was imposed for the protection of a limited class of the public [paras 38 40].
The appeal arises out of a claim for reasonable financial provision under the Inheritance (Provision for Family and Dependants) Act (the Act), brought against the estate of Mrs Jackson by her daughter, Mrs Ilott. Mrs Ilott and her mother had been estranged for the majority of the 26 years preceding Mrs Jacksons death in 2004. The estrangement began when Mrs Ilott left home at 17 to live with her now husband, with whom she has five children. Since that time Mrs Ilott has lived independently of her mother but in straitened financial circumstances. Mrs Ilott and her family received a number of benefits, with a net annual income of around 20,000. In her last will of 2002, Mrs Jackson left the majority of her estate to a number of charities, and made no provision for her daughter. This was a decision Mrs Jackson had made as early as 1984, reflected in her will of that year. Mrs Ilott had been aware for many years of this decision and had lived without any expectation of benefit from the estate. The District Judge found that Mrs Jacksons will did not make reasonable financial provision for Mrs Ilott and awarded her 50,000. The charitable beneficiaries under the will initially challenged the finding that there was any lack of reasonable provision, but that challenge failed and the dispute has since proceeded only on the issue of the quantum of the award, which Mrs Ilott appealed as too low. The Court of Appeal held the District Judge had made two errors of principle in his approach. Firstly, he held the award should be limited in light of the long estrangement and lack of expectation of benefit, but did not identify what the award would have been without these factors and the reduction attributable to them. Secondly, he made his award without knowing what the effect of it would be on the benefits which Mrs Ilott and her family presently received, some of which were subject to a means test and which would not payable if Mrs Ilott had savings in excess of 16,000. The Court of Appeal re evaluated the claim for itself, and awarded Mrs Ilott 143,000 to buy the home she lived in, and an option to receive 20,000 in one or more instalments. The award was designed to avoid affecting Mrs Ilotts benefits entitlement. The Supreme Court unanimously allows the charities appeals. Lord Hughes gives the judgment, with which the rest of the Court agrees. Lady Hale gives a supplementary judgment, with which Lord Kerr and Lord Wilson agree. The District Judge did not make either of the two errors on which the Court of Appeal relied to revisit his award, and so the Court of Appeals order must be set aside and the District Judges order restored. The matters to which the court must have regard in exercising its power to award reasonable financial provision are listed under s.3 of the Act. For an applicant other than a spouse or partner, reasonable financial provision is limited to what it would be reasonable for her to receive for maintenance only. This is an objective standard, to be determined by the court. The limitation to maintenance provision represents a deliberate legislative choice and demonstrates the significance attached by English law to testamentary freedom. Maintenance cannot extend to any or everything which it would be desirable for the claimant to have, but is not limited to subsistence level. The level at which maintenance may be provided is clearly flexible and falls to be assessed on the facts of each case, as at the date of hearing. Although maintenance is by definition the provision of income rather than capital, it may be provided by way of a lump sum. [12 25] As to the first suggested error, the process suggested by the Court of Appeal is not warranted by the Act. The Act does not require the judge to fix some hypothetical standard of reasonable provision and then increase or discount it with reference to variable factors. All of the s.3 factors, so far as they are relevant, must be considered, and in light of them a single assessment of reasonable financial provision should be made. The District Judge worked through each of the s.3 factors, and was entitled to take into account the nature of the relationship between Mrs Jackson and Mrs Ilott in reaching his conclusion. As to the second suggested error, the District Judge specifically addressed the impact on benefits twice. The Court of Appeals criticism that his award was of little or no value to Mrs Ilott was unjustified. A substantial part of the award could be spent on replacing old and worn out household equipment which the family had previously been unable to afford. This fell within the provision of maintenance of daily living, and would avoid Mrs Ilott retaining capital for long above the 16,000 threshold. [29 41] Reasonable financial provision can in principle include the provision of housing, but ordinarily by creating a life interest rather than a capital and inheritable sum, which possibility appeared not to have been considered by the Court of Appeal. To the extent that the benefits means test was relevant, it was likely to apply also to the additional sum of 20,000 apparently awarded with a view to avoiding that test. The statement in the Court of Appeal that a claimant in receipt of benefits should be treated in the same way as a disabled claimant was problematic; what must have been meant was that receipt of means tested benefits is likely to be a relevant indication of a claimants financial position. Finally, the Court of Appeals order gave little weight to Mrs Jacksons very clear wishes and the long period of estrangement. The Court of Appeals justification for this approach was that the charities had little expectation of benefit either. This approach should be treated with caution, given the importance of testamentary bequests for charities, and because the testators chosen beneficiaries, whether relatives, charities or otherwise, do not need to justify their claim either by need or by expectation. [44 47] Lady Hale in her judgment reviews the history of the Act and preceding legislation. She comments on the unsatisfactory state of the law, giving as it does no guidance as to the weight of the factors to be taken into account in deciding whether an adult child is deserving or undeserving of reasonable maintenance. The approach under the Act invariably involves a value judgment, which may be problematic as there is a wide range of opinion among the public and the judiciary about the circumstances in which adult descendants ought or ought not to be able to make a claim on an estate which would otherwise go elsewhere. [49 66]
These appeals concern the proper approach for the court to adopt, and the proper orders for the court to make, in confiscation proceedings where a number of criminals, some of whom may not be before the court, have between them acquired property or money as a result of committing an offence for which all or some of them have been convicted in the trial which led to the proceedings. In the first appeal, the appellants, Shakeel Ahmad and Syed Ahmed (the Ahmad defendants) were convicted of a carousel fraud (which involves criminally misusing the collection system of VAT to extract money from the revenue authorities) and sentenced to seven years in prison. The Ahmad defendants had been the sole directors and shareholders of a company, MST, which was registered for VAT. MST participated in 32 circular transactions by which goods were purportedly sold, and later bought back by, companies in Ireland in circumstances which resulted in 12.6 million being fraudulently reclaimed from HMRC. After a confiscation hearing, Flaux J concluded that, for the purposes of the Criminal Justice Act 1988 (the 1988 Act), the benefit obtained by MST was the benefit obtained by the Ahmad defendants jointly. (While the 1988 Act has been repealed and replaced by the Proceeds of Crime Act 2002 (the 2002 Act), the 1988 Act still applies to crimes committed before the 2002 Act came into force). The Court of Appeal determined that the benefit jointly obtained by the Ahmad defendants was the loss suffered by HMRC, uplifted to 16.1m to adjust for inflation, and that each of the Ahmad defendants was liable for the whole of this amount. In the second appeal, the three appellants, Michael Fields, Mitesh Sanghani and Karamjit Sagoo (the Fields defendants), and a fourth man, Wasim Rajput, were found guilty by a jury of conspiracy to defraud. The Fields defendants were each sentenced to five years in prison. The fraudulent conspiracy involved the use of a company, MDL, whose published accounts falsely recorded that it had over 1m in fixed assets in order to secure credit agreements to buy goods or obtain services. MDL made no payments under these agreements, and the majority of the goods disappeared. In the subsequent confiscation proceedings HH Judge Carr found that the total benefit arising from the conspiracy was about 1.4m, which had been acquired jointly by the Fields defendants. This figure was adjusted upwards to about 1.6m to allow for inflation and the judge made confiscation orders under the 2002 Act against each of the Fields defendants for the whole of this amount. The subsequent appeal to the Court of Appeal was unsuccessful. The Ahmad defendants and the Fields defendants now appeal to this court. They do not challenge the quantification of the aggregate recoverable amount, or the finding that they obtained that amount jointly. What they challenge is the decision of the Court of Appeal that each of the appellants should be separately liable for the whole of that amount. The Supreme Court unanimously allows the appeal in part. Lord Neuberger, Lord Hughes and Lord Toulson, with whom Lord Sumption and Lord Reed agree, give the judgment. The confiscation orders made in respect of each defendant should be amended to provide that they can be enforced only to the extent that the same sum has not been recovered through another confiscation order made in relation to the same joint benefit. However, the orders should not be amended to apportion the benefit between the respective defendants. Although the language of the 1988 and 2002 Acts is not identical, there is no material difference between them for present purposes [28]. A court considering an application for a confiscation order must address and answer three questions. The first question is whether a defendant has benefited from the relevant criminal conduct; the second question concerns the value, or quantification of the benefit; and the third question is what sum is recoverable from the defendant [34]. The first question: has the defendant benefited? Section 76(4) of the 2002 Act provides that a person benefits from conduct if he obtains property as a result or in connection with the conduct. As Lord Bingham held in Jennings v Crown Prosecution Service [2008] AC 1046 and R v May [2008] AC 1028, the essence of benefit in that phrase is given by the word obtains, which in this context should be given a broad, normal meaning connoting a power of disposition or control rather than ownership [41 45]. In many cases it is unclear how many people were involved in the crime, what their roles were, and where the money went. As a result, if the court could not proceed on the basis that the conspirators should be treated as having acquired the proceeds of the crime together, so that each of them obtained the property, it would often be impossible to decide what part of the proceeds had been obtained by any or all of the defendants. It is one thing for the court to have to decide whether a defendant obtained any property, which is required by the 2002 Act. It is another for the court to have to adjudicate on the respective shares of benefit jointly obtained, which is not required [56]. Where property is obtained as a result of a joint criminal exercise, it will often be appropriate for a court to hold that each of the conspirators obtained the whole of that property. However, where the evidence discloses separate obtainings, the judge should make that finding [46 51]. The second question: what is the value of the benefit? A defendant who steals property or obtains it by deception does not acquire ownership of that property. When valuing the benefit the court takes the market value of the property obtained, not because this represents the value of the thiefs legal interest in the goods, but because that is the value of what the thief has misappropriated [61]. The third question: what is the sum payable? To take the same proceeds twice over would not serve the legitimate aim of the 2002 Act and, even if that were not so, it would be disproportionate. The enforcement of an order for the confiscation of proceeds of crime that have already been paid to the state would violate Article 1 of the First Protocol the European Convention on Human Rights, which protects the right to property [71].
Scottish Widows Plc (Scottish Widows) is a life assurance company. It was established in 2000, when it acquired the business of Scottish Widows Fund and Life Assurance Society (the Society) under a scheme of transfer which had been approved by the Court of Session in Scotland. Scottish Widows acquired assets under the scheme which had an approximate value of 25bn, and it became subject to actuarial liabilities of approximately 19bn. Members of the Society received compensation of approximately 5.8bn, which represented the surplus of the Societys assets over its liabilities at the time of the transfer. The compensation was paid by Scottish Widows holding company, in return for the members of the Society giving up their right to participate in the surplus. The scheme provided that Scottish Widows was to establish and maintain a Long Term Business Fund (LTBF) to fund its long term insurance business. It also provided that there was to be a memorandum account within the LTBF, called the Capital Reserve. This was said to represent the value of shareholders capital within the LTBF. Life assurance companies are required to submit annual regulatory returns, in particular to demonstrate solvency. Various forms are prescribed for these returns. One these is known as Form 40, which is a revenue account in respect of the LTBF. In the years following transfer the value of the assets of Scottish Widows LTBF fell substantially, principally because of falls in the stock markets. To cover those losses and to allow for distributions to policyholders, Scottish Widows brought into account amounts on Form 40 for each of the accounting periods 2000, 2001 and 2002. These amounts were recorded in line 15 of the relevant Form 40s. They were described as transfers from the Capital Reserve. Section 83 Finance Act 1989 provides for certain sums to be brought into account in the computation of the profits of an insurance company in respect of its life assurance business for the purposes of corporation tax. In the terms that were in force between 2000 and 2003 section 83(2) provided that: [T]he following items, as brought into account for the period of account (and not otherwise), shall be taken into account as receipts of the period (a) the companys investment income from the assets of its long term business fund, and (b) any increase in value (whether realised or not) of those assets. Section 83(3)(a) made provision for ascertaining whether or to what extent a company had incurred a loss in respect of its life assurance business where an amount was added to an insurance companys long term business fund as part of or in connection with a transfer of business to that company. The Revenue maintained that the amounts to be brought into account as receipts for the computation of profits or losses for tax purposes under section 83(2)(b) or, in the alternative, under section 83(3)(a) were the amounts shown in line 15 on Form 40. It maintained that the reference to a difference in value as brought into account directed attention to the figures that had been entered on Form 40, not the market value of the assets of the LTBF. Scottish Widows argued that the words increase in value in section 83(2)(b) meant an increase in the actual value of actual assets, and that the words as brought into account were concerned with when the increase was brought into account, not the extent of the increase. Here the value of the assets of the LTBF had fallen during each of the relevant periods. So there was no increase which could be brought into account. The parties referred the question whether, in computing the Case I profit or loss of Scottish Widows for the accounting periods ending in 2000, 2001 and 2002, the amounts that fell to be taken into account as receipts to the Special Commissioners were the amounts shown in line 15 of Form 40. It was agreed that, if Scottish Widows argument that it is actual values and not those amounts that should be taken into account is correct, it will have allowable losses in respect of those years of 28.7m, 612.6m and 431.3m. The Special Commissioners answered the question in the affirmative. They held that, although the amounts shown on Form 40 were not to be brought into account by section 83(2), they were covered by section 83(3)(a). The Inner House unanimously dismissed the Revenues appeal against the decision on section 83(2) and by majority (Lord Emslie dissenting) dismissed Scottish Widows cross appeal against the decision in respect of section 83(3)(a). Scottish Widows appealed and the Revenue cross appealed. The Supreme Court unanimously allows the Revenues cross appeal and holds that the amounts that were to be taken into account as receipts by virtue of section 83(2) were the amounts shown on Form 40. It therefore answers the question that was referred to the Special Commissioners in the affirmative. Lord Hope and Lord Walker both give detailed judgments. Lady Hale and Lord Neuberger give shorter judgments, agreeing with each other and with Lord Hope and Lord Walker. Lord Clarke agrees with all of the judgments. Although the applicable statutory provisions had been amended on various occasions, it was not helpful to look at their legislative history. That should only be done where there is an interpretative difficulty which classical methods of construction cannot solve. The proper approach was to concentrate on the wording of sections 83(2) and (3)(a) as they were during the relevant accounting periods: [15], [73], [122] [124]. Lord Walker analyses in detail the regulatory and taxation regime which applies to life assurance companies and the particular features of the demutualisation scheme so as to provide a backdrop to the statutory construction: [40] [71]. There were two particularly important points. One was that when completing regulatory returns, book values could be used, and that an insurer enjoyed a certain freedom in determining what amount of its actuarial surplus to recognise in its returns: [82] [86]. It was also particularly important to appreciate the nature of the Capital Reserve. It was not a fund of particular assets, separate from the LTBF, but was merely an accounting category recording an initial value within the LTBF: [87] [91] [101]. The key to interpreting section 83(2) was the phrase as brought into account and, in particular, the use of the word as: [22], [76], [116], [125]. This demonstrated that the computation must proceed on basis of what was actually entered on the appropriate regulatory account, in this case the form known as Form 40. It was important that, when completing its returns, an insurance company should be permitted to use book values: [20]. The various arguments which were advanced in favour of Scottish Widows construction, based on general principles of interpreting tax legislation ([24] [26], [101] [102]), the statutory scheme and specific aspects of the drafting ([23], [107] [112]), fell to be rejected in the face of this clear statutory language. The Special Commissioners and, to some extent, the Court of Session had attached too much weight to the label Capital Reserve, which had led them to attach undue weight to the notion that capital gains ought not to be taxed under Schedule D, Case I: [26], [101]. Given that the Court allows the Revenues cross appeal, a majority preferred to express no view on section 83(3)(a). Lord Hope indicated that, had it been necessary to decide the point, he would have held in agreement with the majority in the Inner House that the relevant amounts would have been covered by section 83(3)(a): [28] [31].
The Appellant is a strategic development planning authority for the Aberdeen region. In February 2013, it produced draft supplementary planning guidance in support of its proposed strategic development plan for its area. This guidance allowed for a Strategic Transport Fund (the Fund) to deliver infrastructure needed because of proposed development in four strategic growth areas. In substance, the guidance required developers to enter into planning obligations under the Town and Country Planning (Scotland) Act 1997 (the 1997 Act) with the Appellant to make financial contributions to the Fund. Such contributions were to be pooled and spent on required infrastructure. The Respondent property developer objected to the draft supplementary planning guidance. It sought removal of reference to the Fund from the proposed strategic development plan on the basis that it was contrary to Scottish Government guidance on planning obligations (The Circular). The Respondent asserted that the contribution it was required to pay to the Fund was disproportionate to the infrastructure demands created by its development. In the meantime, the Respondent voluntarily entered into a planning obligation under s75 of the 1997 Act to contribute to the Fund in terms of the draft supplementary guidance but on the basis that no contributions would be paid if the guidance was found to be invalid. The Appellant adopted the supplementary guidance after making an amendment advised by the Scottish Ministers to the effect that the use of any planning obligation should follow the advice in the Circular. As adopted, the supplementary guidance listed the cumulative infrastructure requirements identified by the cumulative transport appraisal (CTA) for the area. These requirements had been revised following criticism by the Reporter appointed by the Scottish Ministers that it had not been demonstrated that there was a clear and direct relationship between the development contributing to the Fund and the infrastructure which would be delivered. Upon appeal by the Respondent, the Inner House of the Court of Session quashed the supplementary guidance on the basis that, notwithstanding the amendments made thereto, the obligation to contribute to the pooled Fund breached the Circular and such a planning obligation must fairly and reasonably relate to the permitted development. The Appellant appealed to the UKSC and argued, amongst other things, that the policy tests in the Circular were not part of the legal tests for the validity of a planning obligation. The Supreme Court unanimously dismisses the Appellants appeal. Lord Hodge gives the lead judgment with which the other Justices agree. An approved strategic development plan is of central importance to planning decisions under the 1997 Act [25]. Supplementary guidance deals with the provision of further information in respect of proposals set out in the plan [24]. Planning obligations in terms of s75 of the 1997 Act do not necessarily need to relate to a particular permitted development on the burdened land. A planning obligation may be entered into in circumstances which are not connected with any planning application [38]. For instance, a planning authority may contract for the payment of financial contributions towards certain infrastructure necessitated by the cumulative effect of various developments, so long as the land which is subject to the obligation contributes to that cumulative effect [41]. However, it is not lawful to restrict the commencement of development by planning obligation until the developer undertakes to make a financial contribution towards infrastructure which is unconnected with the development of the site [42 43]. If such a planning obligation were lawful, an authority could use an application to extract benefits which are unrelated to the proposed development [44]. Moreover, it is not lawful to require contributions towards such infrastructure in a planning obligation which does not restrict the development of the site by means of a negative suspensive condition, as such a planning obligation would neither restrict nor regulate the development of the site in terms of s75 [43]. In determining a planning application, the authority must take into consideration material provisions of the development plan and other material considerations. For a planning obligation to be material it must have some connection with the proposed development which is not trivial [47 48]. If a planning obligation, which is otherwise irrelevant to the application, is sought as a policy in the development plan, the policy seeking to impose such an obligation is an irrelevant consideration for determination of the planning application [51]. In the instant case, the scheme established in the supplementary guidance involved the pooling of payments which were not tied to a particular development [56]. The opt out did not make the scheme voluntary in any real sense [57]. The 1997 Act does not allow for such a scheme. The supplementary guidance and the planning obligations which it promotes are unlawful for two reasons [60]. Firstly, the use of the developers contribution to the pooled Fund on infrastructure with which its development has no more than a trivial connection means that the planning obligation is not imposed for a purpose related to the development and use of the burdened site as required by s75, [61] nor did the planning obligation restrict or regulate the development within the meaning of s75 [62]. Secondly, the planning obligation entered into by the Respondent was an irrelevant consideration in terms of a planning application because there was only a trivial connection between the development and the infrastructure intervention(s) which the proposed contribution would fund. An authority is not empowered to require a developer to enter into an obligation which would be irrelevant to an application for permission as a precondition of the grant of that permission [63]. The scheme was not unlawful because it did not comply with the Circular. The Circular was simply a material consideration which was required to be taken into account but not necessarily followed [53 54; 60].
The Appellant is a patient who has been compulsorily detained in Leverndale Hospital, which is not a state hospital, since 1995. He believes he is detained in conditions of excessive security. He believes that his quality of life, his liberty and his prospects for release would be improved were he to be transferred to an open ward. Section 264 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the Act) gives patients who are detained in state hospitals under certain types of order the right to apply to the Mental Health Tribunal for Scotland (the Tribunal) for a declaration that they are being held in conditions of excessive security. Section 268 of the Act purports to give the same right to such patients who are detained in non state hospitals. However, it also specifies that, within that class of individuals, only qualifying patients in qualifying hospitals may make an application. Under each section, if the Tribunal makes a declaration, the relevant health board must identify within three months another hospital where the patient can be detained in appropriate conditions of security. The Act was passed and received Royal Assent in 2003. Section 333(2) of the Act states that the part of the Act containing sections 264 and 268 was to come into force by no later than 1 May 2006. Section 268 of the Act specifies that the terms qualifying patient and qualifying hospital were to be defined in regulations made by the Respondents. Section 273 of the Act specifies the same in relation to the term relevant health board. However, although sections 268 and 273 were brought into force on 6 January 2006 specifically and only for the purpose of allowing regulations to be made under those sections, the Respondents made regulations under section 273 only, which defined relevant health board. Those regulations came into force on 1 May 2006. No regulations defining qualifying patient or qualifying hospital have been made by the Respondents under section 268 to date. Because the term relevant health board was defined prior to 1 May 2006, the right to apply to the Tribunal for patients detained in state hospitals under section 264 was in effective operation by that date. However, because the terms qualifying patient and qualifying hospital remain undefined, section 268 is not in effective operation. Therefore, the Appellant cannot apply for a declaration from the Tribunal that he is detained in conditions of excessive security. The Appellant applied for judicial review on the basis that the Respondents failure to draft and lay regulations under section 268 defining the terms qualifying patient and qualifying hospital was unlawful. The Outer House of the Court of Session refused the Appellants petition on the basis that there was no duty to lay regulations to give effect to a statute where that statute had not conferred a right on any specific class of persons. The Inner House refused the Appellants subsequent appeal on broadly similar grounds. The Supreme Court unanimously allows the appeal. The Court finds that the failure by the Scottish Ministers to draft and lay the regulations under section 268 of the 2003 Act before the Scottish Parliament prior to 1 May 2006, and their continued failure to do so, was and is unlawful. Lord Reed gives the judgment of the court. The Respondents argue that section 268 was in force by 1 May 2006, as required by section 333(2) of the Act, but did not operate. The latter would not occur unless and until they decided to make the necessary regulations, and their failure to do so did not defeat the intention of the Scottish Parliament. There is a valid distinction, they say, between coming into force and operating [20]. By contrast, the Appellant argues that the inference to be drawn from section 333(2) is that the part of the Act containing section 268 should be in effective operation by 1 May 2006. This is supported by the fact that there are other sections within the Act in respect of which Parliament had not set any deadline for their coming into force [21]. The Court notes that the question of when a statutory provision comes into force depends not on when it appears on the statute book following Royal Assent, but on what commencement provision Parliament enacts [22]. It is common for a section to come into force on a later date, usually in order to allow for preparation by the officials who are to administer the Act and/or those who will be affected by its practical operation. Parliament may allow Ministers to decide when a section should come into force, or alternatively may specify a particular deadline [24 25]. Having regard to previous decisions of the Court of Appeal, the distinction between a section coming into force, first, in the sense that it forms part of the law of the land and, second, in the sense that it is in effective operation as a matter of objective fact, is in principle a valid one. As such, in a commencement provision such as section 333(2) of the Act, the words in force refer to the former of these two senses[27 32]. However, the natural inference that should nonetheless be drawn, unless the contrary intention appears, is that Parliament intended the sections to which such a commencement provision applies also to be in effective operation [33 37]. In relation to the present case, Parliamentary debate led to the inclusion in the Act of a right of application on the part of detained patients to be transferred to conditions of lower security. Such debate also led, as a result of an amendment, to a commitment being made that such rights would be in force by no later than May 2006 [38 39]. The intention of the Scottish Parliament was that the rights of application for which the part of the Act containing section 268 provided should be in effective operation by that date. There was nothing in the Act to support the contention that the Scottish Parliament intended that section 264 should be in effective operation by 1 May 2006 but that section 268 should not; both required the enactment of regulations to give them practical effect [40]. It is a basic principle of administrative law that a discretionary power must not be used to frustrate the object of the Act of Parliament which conferred that discretion. The Respondents failure to exercise their power to make the regulations necessary to define qualifying patient and qualifying hospital, and therefore to give section 268 of the Act practical effect, thwarted the intention of the Scottish Parliament. That failure therefore was, and is, unlawful [42 43]. Before the Scottish courts, the Respondents pointed out that the Scottish Parliament did not confer a right of application on an identified class of patients in section 268 in the way that it had in section 264. They argued that this meant they had no duty to make regulations, as there was no right contained in section 268 to which they were duty bound to give effect [44]. However, the Court notes that that proposition is circular; there is no duty to make regulations because no rights have been conferred, but no rights have been conferred because no regulations have been made [45]. The fundamental flaw in the argument is that it is too narrow an approach to suggest that an obligation to exercise a discretionary power to make regulations only arises where it is necessary to do so to give effect to a legal right. It may be necessary to exercise such a power to bring about some other result that was intended by Parliament, and in this case that intended result was that the part of the Act containing section 268 should be in effective operation by 1 May 2006 [46 47].
These appeals concern requests for extradition in the form of European Arrest Warrants (EAWs) issued, in the joined cases of HH and PH, by the Italian courts, and in the case of FK, a Polish court. The issue in all three is whether extradition would be incompatible with the rights of the Appellants children to respect for private and family life under article 8 of the European Convention on Human Rights (ECHR). HH is the mother and PH the father of three children: X aged 11, Y aged 8 and Z aged 3. HH and PH are both British citizens, although HH was born and bred in Morocco. In 2003 they were arrested in Italy and prosecuted on eight charges relating to the importation of cannabis into Italy from Morocco on various dates earlier that year. After a month HH was released under house arrest. She fled the country in July 2004. PH spent a year in custody before being conditionally discharged whereupon he also fled. They were later convicted of all charges although PH received a lesser sentence in respect of the eighth charge, that of conspiracy, because of his lesser degree of participation. HHs EAW states that she has just over nine and a half years of her prison sentence to serve. PPs states that he has eight years and four months to serve. According to calculations made by PHs legal team, he is likely in fact to have only around four and a half years to serve. Further, as primary carer for the children, were the family living in Italy he would be allowed to serve all but a few months of that at home. PH has become the primary carer for the children because HH had experienced a collapse in her mental health. There was expert evidence of the serious harm which would be suffered by the children if both their parents were extradited, in particular by Z who would be separated from her primary attachment figure The District Judge ordered extradition of both HH and PH. Their appeals were dismissed by the Administrative Court on 11 May 2011. FK and her husband are Polish and have five children aged 21, 17, 13, 8 and 3. They have lived in the United Kingdom since 2002. The two youngest children were born in this country. FK is charged with offences of dishonesty with a total equivalent value of less than 6,000. She fled Poland in 2002 and has not been tried or convicted of the alleged offences. There was expert evidence of the serious harm which would be suffered, in particular by the two youngest children, if their mother was extradited. The children had reacted badly to her arrest in 2010. FKs husband is physically impaired and was found to display signs of psychological disturbance. The Senior District Judge ordered extradition. Her appeal was dismissed by the Administrative Court on 1 January 2012. The Supreme Court unanimously allows the appeal in the case of FK. The appeal in respect of HH is unanimously dismissed. By a majority, the Court also dismisses PHs appeal, Lady Hale dissenting. Lady Hale gives the lead judgment. The application of article 8 of the ECHR in the context of extradition was considered by the Supreme Court in Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. The case concerned the effect on Mrs Norris of her husband of many years being extradited to face charges of conspiracy. Whilst not involving the rights of children, the following principles can nonetheless usefully be drawn from that case [08]. First, there may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation, but the court must still carefully examine the way in which it will interfere with family life. Secondly, there is no test of exceptionality. Third, the question is whether the interference with private and family life is outweighed by the public interest in extradition. Fourthly, there is a constant and weighty public interest in extradition: people should stand trial and serve appropriate sentences for their crimes, the United Kingdom should honour its treaty obligations towards other States, and there should be no safe haven for fugitive offenders. Fifthly, the public interest will always carry great weight but the weight does vary according to the nature and seriousness of the crimes involved. Sixthly, delay in seeking extradition may diminish the public interest element and increase the impact on family life. Lastly, as a result of the above it is likely that the public interest will outweigh the article 8 rights of the family unless the interference is exceptionally severe. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 the Supreme Court considered the potential impact of Hs deportation on the article 8 rights of her two children, British citizens who had always lived here. The United Nations Convention on the Rights of the Child required that the best interests of the child shall be a primary consideration (not, it should be noted, the primary consideration or the paramount consideration, [11]), although they can be outweighed by the cumulative effect of other considerations [15]. The approach of the court to article 8 rights is not radically different as between extradition and expulsion cases [29]. The countervailing public interest arguments may be different, in particular because extradition is an obligation owed by the requested state to the requesting state, but the balancing process involves asking the central question set out above. In all cases there must be a careful analysis under article 8 of the potential effects of extradition [31, 32]. For guidance as to procedure in respect of gathering evidence, see [82 86]. In respect of FK, her extradition would have a severe effect on her two youngest children, who would lose their primary attachment figure. That loss could have a lasting impact on their development. Their father, though well intentioned, is unlikely to be able to fill that gap [44]. The alleged offences are not trivial but are of no great gravity [45]. There is no prosecutorial discretion in Poland and there has been considerable delay which may indicate the importance attached to her offending by the Polish authorities [46]. The public interest in extraditing FK does not justify the inevitable harm that it would cause to the lives of her children [48]. In the Italian case, the extradition of both parents would have a severe impact on the children. However, having regard to the limited role of HH in the childrens lives and the central part she played in the very serious offences committed, the interference with the rights of the children is outweighed by the public interest in her extradition. On this point all members of the Court agree. As regards PH, the majority conclude that he ought to be extradited also. Lord Judge notes that in the domestic sentencing context judges have for many years considered the effects of imprisonment on the children of offenders. Unfortunately, the seriousness of the offences committed often means that innocent members of the offenders family will suffer as a result of their crimes [130, 131]. Given the nature of the crimes committed by PH, the public interest in extradition outweighs the interference with the rights of his children [135 138], a sentiment echoed by the majority: Lord Hope, [94]; Lord Brown, [96]; Lord Mance, [103]; Lord Kerr, [149]; and Lord Wilson at [170 172]. Lady Hale would have found that the current effect on the children and in particular the youngest is such that the extradition of their father in addition to their mother is not justified at present [79].
This appeal concerns the provision of Legal Aid in criminal proceedings in Northern Ireland. Raymond Brownlee was convicted on 1 June 2012 of a number of offences including false imprisonment, making threats to kill and wounding with intent. He had been represented by senior and junior counsel until the close of the prosecutions case. But differences arose at that point between Mr Brownlee and his legal team, which resulted in their no longer acting for him. The judge indicated that he intended to proceed with the trial. He did not permit the prosecution to close the case to the jury but asked Mr Brownlee whether there was anything that he wished to say. Having been informed that there was not, the judge charged the jury, who returned the guilty verdicts. They also found Mr Brownlee not guilty on three further counts, on one of these by direction of the judge. The case was adjourned to permit Mr Brownlee to instruct new solicitors and counsel. New solicitors came on record for Mr Brownlee on 29 June 2012. On 3 July 2012, following representations made on Mr Brownlees behalf, the judge extended the legal aid certificate which he had granted to include senior counsel as well as junior counsel and solicitors. It had been submitted that the sentencing exercise would be complex and might result in an indeterminate or extended sentence. Consequently, a substantial amount of preparation would be required to properly represent Mr Brownlee during the sentencing exercise. But the fees payable by the Legal Services Commission (LSC) for the sentencing hearing were fixed by the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005 (the Rules) at 100 for a solicitor, 120 for junior counsel and 240 for senior counsel. No fees were payable in respect of any preparatory work that counsel would be required to undertake. A provision allowing for the payment of exceptional fees had been removed by an amendment in 2011. Mr Brownlees solicitors were unable to engage counsel to act for him on the sentencing hearing. They were consistently informed that the absence of any allowance for preparation in the fixing of the fee level makes it unfeasible to act on behalf of the appellant for the payment specified. Mr Brownlee applied for judicial review of LSCs decision not to allow any modification of the standard fees to be paid for the sentencing hearing in his case. Treacy J held that the consequent impossibility of retaining counsel amounted to a denial of access to justice. He made an order of mandamus (an order that instructs a party to do a particular thing) requiring the respondent, the Department of Justice (who are responsible for LSC), to take all necessary steps to make Mr Brownlees right to legal aid effective. The Department of Justice successfully appealed Treacy Js order. Morgan LCJ, delivering the judgment of the Court of Appeal, acknowledged that inadequate remuneration within a legal aid scheme can breach a defendants right to a fair trial under article 6 of the European Convention on Human Rights if an accused consequently finds it impossible to obtain the services of an appropriate lawyer to represent him. But this was a problem of Mr Brownlees own making, so that his sentencing process should not be hindered because of it. In fact, it is clear from a transcript of the trial that it was senior counsel who had initiated the process of withdrawal from the case. He told the judge that he felt professionally compromised and could no longer act for Mr Brownlee. At that stage, the appellant did not want counsel to withdraw. There can be no question of counsel having been dismissed by the appellant at that point. It was only after lunch, having been given time to consult with his solicitor, that Mr Brownlee said in answer to the judges direct question that he wanted to dispense with counsels services. After the Court of Appeal had heard the Departments appeal but before judgment was delivered, a consultation document was published as part of a review of the Rules, which implicitly accepted that they had failed to cater for the proper remuneration of counsel briefed for the first time to appear for an accused person after the trial had ended. Draft amendment rules were shown to this court in the course of the hearing of the appeal on 5 December 2013. These were expected come into force in January 2014 with retrospective effect. The new rules will make provision for the payment of additional fees for preparatory work undertaken by a new legal representative for a sentencing hearing. The Supreme Court unanimously allows Mr Brownlees appeal and declares that the rule making bodys failure to allow for new legal representatives to be paid for preparatory work was unlawful. At the conclusion of the hearing of the appeal, this court announced that it would allow the appeal for reasons to be given later. This judgment contains those reasons. The assessment and payment of fees to a legal representative who has replaced another at the sentencing stage of criminal proceedings was, self evidently, a material consideration which should have been taken into account by the rule making body which amended the Rules in 2011. This failure to have regard to a relevant factor justifies judicial review of the decision to amend the Rules in 2011 without making provision for the payment of fees that would properly reflect the preparatory work which a legal representative, new to the case at the sentencing stage, would have to undertake [32]. Article 37 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 requires the rule making body to devise rules prescribing payments to be made to reflect the time and skill necessary to carry out particular types of criminal legal aid work. A failure to make provision for remuneration of preparatory work by a new legal representative is therefore unlawful. The cost to public funds of any provision made by the Rules and the need to secure value for money complement this obligation rather than extinguish it [33]. This court concluded that a declaration should be substituted for the order of mandamus made by Treacy J. When he granted judicial review an order of mandamus was appropriate. Now that the Department has accepted that the Rules require to be amended to allow for payment for preparatory work undertaken by a new legal representative, mandamus is no longer necessary. The declaration will be that the failure of the rule making body to take account of the need to provide for such payment rendered the Rules to that extent unlawful [34].
These appeals raise questions of some significance arising out of the interrelationship of the statutory schemes relating to the protection of employees pensions and to corporate insolvency. In order to protect employees from the adverse consequences of an under funded occupational pension scheme, the Pensions Act 2004 (the 2004 Act) introduced a financial support direction (FSD) regime. This enables the Pensions Regulator in specified circumstances (i) to impose, by the issue of an FSD to some or all of the other group companies (known as targets), an obligation to provide reasonable financial support to the under funded scheme of the service company or insufficiently resourced employer, and (ii) to deal with non compliance with that obligation by imposing, through a Contribution Notice (a CN), a specific monetary liability payable by a target to the trustees. Many UK registered members of the Lehman group of companies and of the Nortel group of companies have gone into insolvent administration. One of those Lehman group companies entered into service contracts with, and ran a pension scheme for the benefit of, employees who worked for other group members. The Nortel group included a company which had a pension scheme, and which was insufficiently resourced to fund that scheme. The pension scheme (the Scheme) in each case was a final salary scheme, which appears to be, and to have been for some time, in substantial deficit. The Pensions Regulator subsequently initiated machinery under the 2004 Act to require certain other group members the target companies to provide financial support for the Scheme. That machinery has been held up so it can be decided how the administrators of a target company should treat that companys potential liability under the FSD regime (in due course the liability under a CN) in a case where the FSD is not served until after the company has gone into administration (or into insolvent liquidation). Specifically, would the liability under such a requirement rank (a) as an expense of the targets administration, (b) pari passu (i.e. equally) with the target companies other unsecured creditors, or (c) as neither? Under option (a) the liability would rank ahead of the unsecured creditors, and may well be paid in full; under option (b) it would rank equally with those creditors; under option (c) it would rank behind them, and would probably be worthless. Briggs J and the Court of Appeal concluded that option (b) was not open to them, and preferred option (a) to option (c). The Supreme Court considers option (b) to be correct, and unanimously allows the appeals to the extent of declaring that a targets liability under the FSD regime, arising pursuant to an FSD issued after the company has gone into administration, ranks as a provable debt of the company, and does not rank as an expense of the administration. Lord Neuberger gives the main judgment of the Court, with which Lord Mance, Lord Clarke and Lord Toulson agree. Lord Sumption gives a short concurring judgment, with which Lord Mance and Lord Clarke agree. The potential liability as a result of an FSD issued after the commencement of an administration or an insolvent liquidation (an insolvent event) can constitute a provable debt within rule 13.12 of the Insolvency Rules 1986 (SI 1925/1986) (the Insolvency Rules). Whilst the potential FSD regime liabilities in the present cases do not fall within rule 13.12(1)(a) [68] [71], they fall within rule 13.12(1)(b) [83]. It is common ground that if a CN had been issued in respect of a target before an insolvent event, it would give rise to a provable debt. The courts below considered that, if a CN were issued after an insolvent event, it would give rise to a provable debt if it was based on an FSD issued before the insolvent event. It appears somewhat arbitrary that the characterisation and treatment of the liability under the FSD regime should turn on when the FSD or CN happens to have been issued, if it is based on a state of affairs which existed before the insolvent event [59]. The courts below felt constrained by a consistent line of authority from reaching the conclusion the Supreme Court has reached, although it appears that they would have so held if they had felt able to do so [56]. These earlier authorities can be overruled: the judgments are very short of reasoning, are inconsistent with another line of authority, and were decided at a time when the legislature and the courts were less anxious than currently for an insolvency to clear all the liabilities of a bankrupt (as they were all concerned with individual insolvencies) [87] [94]. There is no doubt that the liability which is imposed on a target on the issuing of an FSD after an insolvent event is a liability for the purposes of rule 13.12(1)(b), as it is a liability under an enactment within rule 13.12(4). The question is, however, whether it can be said to be a liability which arose by reason of any obligation incurred before the insolvent event [72]. That issue centres on the meaning of the word obligation in rule 13.12(1)(b) [74]. At least normally, in order for a company to have incurred a relevant obligation under rule 13.12(1)(b), it must have taken, or been subjected to, some step or combination of steps which (a) had some legal effect (such as putting it under some legal duty or into some legal relationship), and which (b) resulted in it being vulnerable to the specific liability in question, such that there would be a real prospect of that liability being incurred. If these two requirements are satisfied, it is also relevant to consider (c) whether it would be consistent with the regime under which the liability is imposed to conclude that the step or combination of steps gave rise to an obligation under rule 13.12(1)(b) [77]. In these appeals, all these requirements are satisfied, and accordingly the relevant obligation arose before the target companies went into administration. Given that the potential FSD liability in each of these cases is a provable debt within rule 12.3 of the Insolvency Rules, and therefore it would not be an expense, it is strictly unnecessary to consider whether the liability under an FSD served after an insolvent event would be a liquidation expense, if, as the courts below held, it was not a provable debt [97]. However, given that this issue was fully debated before the Court, and is one of some potential importance, the Court concludes that, if the liability did not rank as a provable debt, it would not count as an expense of the administration [98] [114]. The Court also concludes that if it had taken a different view on the provable debt issue, it would not have held that it had a residual discretion to direct the administrator of a target company to accord to the potential liability under the FSD regime a higher ranking than it would be given under the relevant legislation [115] [127]. Lord Sumption adds some observations about the limitations on what constitutes an obligation incurred for the purpose of rule 13.12(1)(b) of the Insolvency Rules [129] [136].
Councils (known in this context as surveying authorities) are required by section 53 of the Wildlife and Countryside Act 1981 to maintain a definitive map and statement of the public rights of way in their local area. Under the 1981 Act, members of the public may apply to surveying authorities for an order modifying the definitive map and statement in light of new evidence of the existence of a public right of way. Schedule 14 to the 1981 Act specifies in paragraph 1 that such applications must be accompanied by a map drawn to the prescribed scale and showing the way or ways to which the application relates. The scale is prescribed by the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993, which provide by Regulation 2 that a definitive map shall be on a scale of not less than 1:25,000 and by regulation 3 that maps accompanying an application for a modification order must also comply with regulation 2. The Natural Environment and Rural Communities Act 2006, section 67, extinguished all unrecorded rights of way for mechanically propelled vehicles in England as of 2 May 2006. However, such rights of way could be preserved if an application for a modification order had been made before 20 January 2005. Section 67(6) specifies that an application under this section is made when it is made in accordance with paragraph 1 of Schedule 14 to the 1981 Act. Before the deadline, the Friends of Dorsets Rights of Way made five applications to Dorset County Council (the appellant) under the 1981 Act for orders modifying the definitive map and statement to show various byways open to all traffic. The maps accompanying the applications were produced using a computer program which printed out maps which were to a presented scale of 1:25,000 or larger but which were derived originally from Ordnance Survey 1:50,000 maps. The Trail Riders Fellowship (the first respondent) has now taken over conduct of those applications. On 7 October 2010, the council rejected all of the applications on the basis that the accompanying maps were not drawn to a scale of not less than 1:25,000. If the councils decision is upheld, the vehicular rights of way in question will no longer exist. Supperstone J upheld the councils decision on the basis that: (i) the application maps did not comply with the statutory requirements; and (ii) applying the decision of the Court of Appeal in the case of R (Warden and Fellows of Winchester College) v Hampshire County Council [2008] EWCA Civ 431 (Winchester), the applications were invalid because the extent of the non compliance was not negligible (de minimis). The Court of Appeal allowed the appeal, holding that (i) the maps did comply with the statutory requirements, but (ii) if the appeal had failed on the first point, the non compliance could not sensibly be described as de minimis. The Supreme Court dismisses the councils appeal on the basis of point (i) and upholds the Court of Appeals decision that the maps did comply with statutory requirements by a majority of 3 2. Lord Clarke gives the leading judgment; Lord Toulson and Lord Carnwath agree with Lord Clarke. Lord Sumption and Lord Neuberger would both have decided in the appellant councils favour on point (i). Point (ii) therefore does not arise. Had point (ii) arisen, Lord Neuberger, Lord Sumption and Lord Toulson would have held that the effect of non compliance with the statutory provisions is that the applications would not have been valid, while Lord Carnwath would have held, contrary to Winchester, that they would nonetheless have been valid. Lord Clarke prefers not to express a view on point (ii). (i) Did the maps submitted with the applications comply with the statutory requirements? Lord Clarke explains that the only question is whether the maps were drawn to a scale of not less than 1:25,000 [18 19]. He holds that they were. Each map was in fact produced to a presented scale of 1:25,000 or larger [20]. The statute and regulations could have but did not require that a map with the amount of detail of an Ordnance Survey 1:25,000 map be used, and the mere fact that one might ordinarily expect the use of an Ordnance Survey 1:25,000 map does not tell us whether that is a requirement [22 25]. Maps drawn to a scale of 1:25,000 without any reference at all to an Ordnance Survey map would satisfy the statutory provisions, even if they contained only as much detail as an Ordnance Survey 1:50,000 map [25 26]. Although the prescribed scale requirement applies to the application map and the definitive map and statement in the same terms, it is important to note that the surveying authority is under a public law duty to prepare and maintain the definitive map and statement to a professional standard, whereas lay applicants are only required to put relevant material before the surveying authority for investigation [28]. A map could be drawn by a computer program [29 30]. Lord Toulson [35, 40] and Lord Carnwath [51] agree with Lord Clarke. Lord Neuberger and Lord Sumption would have allowed the appeal in relation to point (i); each agrees with the other [106, 109]. Lord Neuberger considers that: the most natural meaning of Schedule 14 is that it requires that, where an applicant uses a copy of an original map, the original map must have been prepared on a scale of at least 1:25,000 [86 87]; the justification for the use of a minimum scale must have been that such a map would normally show more contextual detail [88]; it is not natural to say that a map is drawn to a certain scale if it has not been prepared to that scale [90]; and the terms in question must have had the same meaning in relation to both the definitive map and the map accompanying an application [91]. Lord Sumption says that the Regulations were drafted on the assumption that a 1:25,000 scale map would have more detail than a 1:50,000 map. A magnified 1:50,000 map is therefore not the same thing as a 1:25,000 map [107]. (ii) Does non compliance with the statutory requirements mean that the maps are invalid? Lord Neuberger explains that the ultimate question of one of statutory construction: can Parliament fairly be taken to have intended that the applications would be totally invalid if they did not comply with the statutory requirements [93]? Prior to the deadline imposed by the 2006 Act, it would have been open to the council to waive the defect by accepting a non compliant application, or to the applicant to validate the application after its submission by providing compliant maps. The defect could not simply have been overlooked unless it could be said that the defect was de minimis (a suggestion rightly rejected by the first instance judge) [92 97]. But under section 67 of the 2006 Act, Parliament has spelled out the consequence of non compliance: a non compliant application is not to be treated as a valid application, and there is no jurisdiction to waive or amend the defect [99]. Any other interpretation would deprive section 67(6) of the 2006 Act of all meaning [100 105]. Lord Sumption agrees: the point may be technical, but the technicality is unavoidable [108]. Lord Toulson agrees with the approach taken by Lord Neuberger and Lord Sumption [41]. He notes that all statutes must be construed in their own context but in this case section 67(6) puts the answer beyond doubt [48 50]. Lord Carnwath starts from the principle that procedural requirements such as those in the 1981 Act should be interpreted flexibly and in a non technical way [69], and adds that such a flexible approach is particularly appropriate given that the primary duty to keep the definitive map up to date rests on the surveying authority and that the effect of the statute is retrospective [71, 78]. In this context, substantial compliance with the statutory provisions would suffice to achieve validity. Winchester was therefore too narrowly decided [73 75]. Section 67(6) is simply included for clarity [77]. He would therefore have dismissed the appeal on this basis as well (and notes that the grounds are closely related) [80 81]. Lord Clarke is sympathetic to Lord Carnwaths general approach but prefers not to express a view on the issue until it arises on the facts of a particular case [34].
The appellants are insurance companies which have undertaken to indemnify employers against liability for negligence. They sought to challenge the lawfulness of an Act of the Scottish Parliament (the Damages (Asbestos related Conditions) (Scotland) Act 2009, the 2009 Act) which provides that asbestos related pleural plaques and certain other asbestos related conditions constitute personal injury which is actionable under Scots law. Pleural plaques are physical changes in the tissue which lines the lungs and the chest wall. They do not actuate or contribute to potentially fatal conditions such as lung cancer, mesothelioma or asbestosis, but their existence evidences significant previous exposure to asbestos, which of itself represents an increased risk of contracting such diseases. The purpose of the 2009 Act was to reverse the decision of the House of Lords in Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 29. In that case it was decided that the mere presence of pleural plaques did not constitute injury which could gave rise to a claim for damages. The appellants challenge the validity of the Act on two bases: 1. that it is incompatible under article 1 of Protocol 1 (A1 P1) of the European Convention on Human Rights (the Convention) and therefore is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998; and 2. that it is open to judicial review as an unreasonable, irrational and arbitrary exercise of the legislative authority of the Scottish Parliament. The first and second respondents represent the Scottish Ministers and the United Kingdom government respectively. The third to tenth respondents are individuals who have been diagnosed with pleural plaques. These respondents have cross appealed a court finding which held that they did not have title and interest to be parties to the case. The Supreme Court dismisses the appeal and allows the cross appeal by the third to tenth respondents. The leading judgments were given by Lord Hope and Lord Reed, with whom the other justices agreed. The Court holds that the appellants are entitled to bring these proceedings under the Convention as the effect of the 2009 Act is that they would be victims for the purposes of article 34 and that the amount of money the appellants would be required to pay is a possession for the purposes of A1 P1 [28], [112 114]. Therefore in order for the 2009 Act to comply with A1 P1, it must be shown that the Act is pursuing a legitimate aim and is reasonably proportionate to the aim pursued. In issues involving questions of social policy, which this is, the Court should respect the judgment of the elected body as to what is in the public interest unless that judgement is manifestly without reasonable foundation [31] [32]. It cannot be said that the judgement of the Scottish Parliament was without reasonable foundation [33], [125]. Therefore the Court accepts that the Act pursues a legitimate aim [41], [125]. It also considers that the means chosen are reasonably proportionate to the aim sought to be realised [41], [134]. The balance is correctly struck, first because the claims will only succeed if the asbestos exposure was caused by the employers negligence [37]. Second, the appellants obligation to indemnify inevitably entailed a risk that unforeseen circumstances would increase the burden of liability [38]. And third, because the Act can be seen as preserving the status quo prior to Rothwell [129]. It follows that the 2009 Act was not outside the legislative competence of the Scottish Parliament. Nor can it be said that the 2009 Act was a result of an unreasonable, irrational and arbitrary exercise of the legislative authority [42]. The Court finds that in principle Acts of the Scottish Parliament are subject to judicial review but not on the grounds of irrationality, unreasonableness or arbitrariness. The guiding principle is to be found in the rule of law. This is the ultimate controlling factor, and the courts must insist that it is respected by legislation that the Parliament enacts. But it would be wrong for the judges to substitute their views as to what is rational or reasonable for the considered judgment of the democratically elected legislature [47], [51] [52], [148] and [153]. As to whether the third to tenth respondents are entitled to be parties, the test of standing, rather than the private law rule that title and interest has to be shown, is a more appropriate approach in judicial review proceedings [62], [171]. The third to tenth respondents have standing as they are directly affected by the appellants challenge to the 2009 Act [63] [64] and [175].
The two appeals concern whether, and if so, in what circumstances, an order or judgment of a foreign court in proceedings to set aside prior transactions, such as preferences or transactions at an undervalue (avoidance proceedings), will be recognised and enforced in England and Wales. The appeals also raise the question of whether enforcement may be effected through the international assistance provision of the UNCITRAL Model Law implemented by the Cross Border Insolvency Regulations 2006, which apply generally, or the assistance provisions of s.426 of the Insolvency Act 1986 (the Insolvency Act), which applies to a limited number of countries, including Australia. In Rubin a judgment of the US Federal Bankruptcy Court for the Southern District of New York in default of appearance for around US$10m in respect of fraudulent conveyances and transfer was enforced in England at common law. In New Cap, bound by the prior decision in Rubin, a default judgment of the New South Wales Supreme Court for about US$8m in respect of unfair preferences under Australian law was enforced under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (1933 Act) and, alternatively, pursuant to the Insolvency Act. In both appeals the parties against whom the judgments were made were neither present in the foreign country nor had they submitted to the jurisdiction. Since both judgments were in personam, the essential issue was whether the existing principles were applicable or whether the Court should adopt separate rules for judgments in personam in avoidance proceedings, where the judgments were central to the purposes of the insolvency proceedings or part of the mechanism of collective execution. The Supreme Court by a majority of 4:1 (Lord Clarke dissenting) allowed the appeal in Rubin holding that there should not be special rules for avoidance judgments but dismissed the appeal in New Cap on the ground that the Syndicate submitted to the jurisdiction of the Australian Court. Lord Collins gave the leading judgement. Broadly, under both the common law and the 1933 Act, a foreign court has jurisdiction to give a judgment in personam capable of recognition and enforcement against the person whom the judgment was given if the person (i) was present in the foreign court when proceedings were instituted; (ii) was a claimant, or counterclaimed, in the foreign proceedings; (iii) submitted to the jurisdiction of the foreign court by voluntarily appearing in the proceedings; or (iv) agreed to submit to the jurisdiction of the foreign court before the commencement of the proceedings. As a matter of policy, the Court did not agree that, in the interests of the universality of bankruptcy and similar procedures, there should be a more liberal rule for judgments given in foreign insolvency proceedings for the avoidance of transactions. [115] A different rule for avoidance proceedings would mean courts would have to develop two aspects of jurisdiction: a requisite nexus between the insolvency and the foreign court and a requisite nexus between the judgment debtor and the foreign court. [117] Such a change would not be an incremental development of existing principles but a radical departure from substantially settled law, and more suitable for the legislature than judicial innovation. The restricted scope of the existing rules reflects the fact that there is no expectation of reciprocity on the part of foreign countries. [128 29] Expanding the principal would also be detrimental to United Kingdom businesses without any corresponding benefit. [130] Nor would any serious injustice result from adhering to the traditional rule. There were several other avenues open to officeholders. Rubin, for example, could have been founded on proceedings by trustees in England for the benefit of creditors under an express trust, and avoidance claims by the liquidator of an Australian company may be the subject of a request by the Australian court under the Insolvency Act. [131] Lord Collins (with the agreement of Lord Walker and Lord Sumption) held that the earlier Privy Council decision in Cambridge Gas Transportation Corporation v Official Committee of Unsecured Creditors of Navigator Holdings plc [2007] 1 AC 508 was wrongly decided as there was no basis for the recognition of the US Bankruptcy order in the Isle of Mann in that case. [132] Whilst agreeing it was distinguishable, Lord Mance reserved judgment on whether it was wrongly decided. [178] As for enforcement under the Cross Border Insolvency Regulations 2006, there was nothing expressly or by implication in the UNICTRAL Model Law that applied to the recognition or enforcement of foreign judgments against third parties. [142 44] In relation to New Cap, Lord Collins concluded that the Syndicate had submitted to the jurisdiction of Australia having chosen to prove in New Caps Australian insolvency proceedings. It should not be allowed to benefit from the insolvency proceeding in this way without the burden of complying with orders made in that proceeding. [156 167] In these circumstances, the 1933 Act would apply to the Australian judgment and enforcement should be by way of registration under the 1933 Act rather than by the common law. In view of the conclusion that the Syndicate submitted to the Australian jurisdiction, the issue of enforcement under the Insolvency Act did not arise. However, Lord Collins expressed the opinion that the relevant subsections of the Insolvency Act were not concerned with enforcement of judgements having examined their construction and the statutory history. [152 154] Lord Clarke dissented on the Rubin appeal. He relied on the principle that avoidance orders made by a foreign courts in bankruptcy proceedings (personal or corporate), which the court has jurisdiction to entertain, were enforceable if it could fairly be said to have been made in personam or in rem. [193] It was possible to have a rem order incidental to bankruptcy proceedings but which is enforceable at common law, provided that the bankruptcy court has jurisdiction in the bankruptcy [195 6]. Avoidance orders are central to bankruptcy proceedings. To allow for their enforcement was in keeping with the principle of modified universalism requiring English courts, so far as is consistent with justice and UK public policy, to co operate with the courts in the country of the principal liquidation to ensure a companys assets are distributed to the creditors under a single system of distribution [199]. This would be worked out on a case by case basis depending on the facts of the particular case. [200 1]
Helredale playing field (the Field) is situated in Whitby, North Yorkshire, and is owned by Scarborough Borough Council (the Council). The issue raised in this appeal is whether the Field should be registered as a town or village green under section 15 of the Commons Act 2006. The Field is approximately two hectares and was acquired in 1951 by the predecessor local authority of the Council, who maintained the Field as recreation grounds pursuant to section 80(1) of the Housing Act 1936, now section 12(1) of the Housing Act 1985. For at least the last fifty years, the Field has been used extensively and openly by local inhabitants for informal recreation. The Council arranges for the regular mowing of the grass and the marking out of the football pitch. In October 2007 the Helredale Neighbourhood Council applied to the North Yorkshire County Council to register the Field as a town or village green under section 15 of the 2006 Act. Section 15 allows an application to register land as a town or village green where a significant number of inhabitants of the locality have indulged as of right in lawful sports and pastimes on the land for at least 20 years. An inquiry commissioned by North Yorkshire County Council concluded that, although a significant number of the inhabitants had indulged in lawful sports and pastimes on the land for at least 20 years, their use had not been as of right. North Yorkshire County Council accordingly rejected the application to register the Field as a town or village green in October 2010. Christine Barkas, a member of the Neighbourhood Council, applied for judicial review of this decision. Her application was unsuccessful and the Court of Appeal unanimously dismissed her subsequent appeal. Ms Barkas now appeals to this court. The Supreme Court unanimously dismisses the appeal. Lord Neuberger gives the main judgment, and Lord Carnwath gives a full supporting judgment. The other members of the Court agree with both judgments. The court rules that so long as land is held under a provision such as section 12(1) of the 1985 Act, members of the public have a statutory right to use the land for recreational purposes, and therefore use the land by right rather than as of right. The issue Where land is provided and maintained by a local authority pursuant to section 12(1) of the Housing Act 1985 or its statutory predecessors, is the use of that land by the public for recreational purposes as of right within the meaning of section 15(2)(a) of the Commons Act 2006 [12]? The meaning of as of right If a person uses privately owned land of right or by right, the use is rightful because it has been permitted by the landowner. However, if the use of such land is as of right, a number of cases relating to the acquisition of rights of way and other easements by prescription establish that it means that the use is without the permission of the landowner. Accordingly such use is not of right or by right, but is carried on as if it were by right, hence as of right. The significance of the word as is therefore crucial, making the expression as of right effectively the antithesis of of right or by right [14]. Rules of prescription have been created by a combination of statutory and common law under which the de facto enjoyment of land has to have been for twenty years not by force, nor stealth, nor licence of the owner before prescriptive rights are acquired. These three vitiating factors set out the circumstances in which it would have been reasonable to expect the owner to resist the exercise of the right [15]. Was the public use in this case as of right? So long as land is held under a provision such as section 12(1) of the 1985 Act, members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land by right and not as trespassers, so that no question of use as of right can arise. A reasonable local authority in the Councils position would have regarded the presence of members of the public on the Field, walking with or without dogs, taking part in sports, or letting their children play, as being pursuant to their statutory right to be on the land and to use it for these activities [21]. Where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use, it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land as of right simply because the authority has not objected to their using the land. It seems very unlikely that, in such a case, the legislature could have intended that such land would become a village green after the public had used it for twenty years. It would not merely be understandable why the local authority had not objected to the public use: it would be positively inconsistent with their decision to allocate the land for public use if they had done so. The position is very different from that of a private owner, with no legal duty and no statutory power to allocate land for public use, with no ability to allocate land as a village green, and who would be expected to protect his or her legal rights [24]. The proceedings in Beresford The decision in Beresford v Sunderland City Council, in which the House of Lords held that the publics use for more than 20 years of land maintained by the local authority with that authoritys knowledge was as of right, should no longer be relied on. It is clear on the facts in that case that the city council and its predecessors had lawfully allocated the land for the purpose of public recreation for an indefinite period, and that, in those circumstances, there was no basis upon which it could be said that the public use of the land was as of right rather than by right [48 49]. Lord Carnwaths concurring judgment analyses the as of right test in context and explores Beresford in greater detail [51 87].
Under section 5(1) of the British Nationality Act 1948 the general rule was that British citizenship was available to a person by descent if his or her father was a citizen of the United Kingdom and Colonies at the time of the persons birth. But, if the persons father was himself a citizen by descent only, then unless either the person was born in a British controlled territory or the father was in Crown service at the time of the birth, it was normally a condition under section 5(1)(b) that the persons birth should be registered at a British consulate within a year. Citizenship by descent could not be transmitted through the female line. Regulations permitted a British consul to register a birth only if the child was eligible for British citizenship. The Respondent, Shelley Elizabeth Romein, was born in the USA in 1978. The 1948 Act was in force at that time. Ms Romeins father was a US citizen with no personal connection to the UK. Her mother had been born in South Africa and was a citizen of the United Kingdom and Colonies by descent, because her father (Ms Romeins grandfather) had been born in the UK. Ms Romeins mother swore an affidavit in which she said that, while pregnant with her and in South Africa, she contacted the British consulate in Johannesburg to enquire about British citizenship for her unborn child. She was correctly told that the child was ineligible because her only claim by descent was through her mother. The British Nationality Act 1981 removed the restriction to descent through the male line for those born after 1 January 1983 (subject to a five year transitional period). The 1981 Act was amended retrospectively in 2003 and 2009. Section 4C of the amended 1981 Act, as it stood when Ms Romein applied for citizenship and as it now stands, requires applications for citizenship to be dealt with on the assumption that the law had always provided for citizenship by descent from the mother on the same terms as it provided for citizenship by descent from the father. However, in 2013 when Ms Romein sought to take advantage of the change, her application for citizenship was rejected because she was unable to satisfy the condition of registration within a year. The reason why she was unable to do so was that although the law was now deemed at all material times to have allowed claims to citizenship by descent through the female line, at the time of Ms Romeins birth in 1978 the staff of British consulate, acting entirely properly under the law as it actually was, would have refused to register her birth because she was ineligible for citizenship. Ms Romein applied for judicial review of the decision refusing her citizenship application. The Lord Ordinary dismissed that application for judicial review. Ms Romein appealed to the Inner House of the Court of Session which allowed her appeal, quashed the refusal of her citizenship application, and remitted her citizenship application for reconsideration. The Supreme Court unanimously dismisses the appeal, although for reasons other than those given by the Inner House. Lord Sumption gives the judgment, with which Lady Hale, Lord Reed, Lord Hodge and Lady Black agree. The refusal of Ms Romeins citizenship application, notwithstanding the assumption in section 4C, on the ground that the consular staff would have properly refused to register her birth is a paradoxical result, calling for scrutiny [3]. There are logically only three possible solutions to this conundrum [9]. The first approach is that Section 4C requires one to assume not only that the law had always provided for citizenship by descent through the female line, but that consular officials at the time in fact acted on that basis. This is Ms Romeins case, which the Inner House substantially adopted [9(1)]. This involves formidable difficulties. First, the counterfactual assumption that the consular officials would have registered the birth is inconsistent with section 4C(3D), according to which it is not to be assumed that the registration requirement was met. The Court cannot accept the view of the Inner House that section 4C(3D) serves only to cast on the applicant the burden of proving his her of claim without the assistance of any presumption of fact. Subsection (3D) does not say that. Moreover, the applicant would bear the burden of proving his or her claim anyway. Second, there is a conceptual problem about making the operation of section 4C dependent on an enquiry conducted years later into the question of whether a parent would have wished or intended or attempted to take advantage of a then non existent right. Third, if the counterfactual assumption includes an assumption about the steps which the parents would have taken with a view to obtaining British citizenship for their children, then it would be open to an applicant to seek citizenship by descent on the basis that the mother would have moved to a British controlled territory for the birth, or that a parent would have entered or continued in Crown service in time for the birth. It seems extremely unlikely that Parliament expected the operation of section 4C to depend on that practically unanswerable question. Subsection (3D) appears to have been added precisely to rule out such unrealistic enquiries [10]. The second approach is that section 4C requires one to assume only that the law had always provided for citizenship by descent, but not to make any assumption that the facts were other than they actually were. This is the Advocate Generals case, which the Lord Ordinary substantially adopted. This accords with the literal words of section 4C, but its result is that citizenship by descent through the female line would be available under section 5(1)(b) of the 1948 Act only where persons were registered by mistake or in defiance of the regulations. It is difficult to see why Parliament should have intended to help only them. The Court cannot accept the suggestion that the intention behind section 4C was to allow claims to citizenship by descent from a woman only in cases where citizenship followed automatically from certain specified circumstances and was not dependent on a person taking steps, such as registering a birth. Section 4C as drafted would be an extraordinary way of doing that. Parliament is highly unlikely to have had any such intention. It would have significantly undermined the purpose of section 5(1)(b) of the 1948 Act for no discernible reason [9(2) 11]. The solution is to treat the registration condition in section 5(1)(b) as inapplicable in applications for citizenship by descent from the mother. This is the only way to give effect to section 4C(3), given that section 4C(3D) precludes any counterfactual assumption that the birth was registered [9(3) 12]. There are two objections to this solution. The Court accepts neither. The first is that it is said to lead to unacceptable discrimination between those born before and after the 1948 Act came into force. The Court prefers not to decide this point. It does not affect Ms Romeins case. It is enough to point out that, if there is any difference between the treatment of those two categories of people, it arises from the wording of the 1981 Act (as amended) [13 14]. The second objection is that this solution leads to a different form of gender discrimination, because claimants through the female line would be free of the registration condition whereas claimants through the male line under the previous law were not. This is not anomalous either: there is no current discrimination between applicants. There was historic discrimination between their parents. Section 4C simply corrects the remaining consequences [13, 15].
The appellant, Mr Kennedy, is a journalist with The Times. On 8 June 2007 he made a request to the Charity Commission under the Freedom of Information Act 2000 (the FOIA) for disclosure of information concerning three inquiries conducted by the Charity Commission between 2003 and 2005 into the Mariam Appeal, which was launched by Mr George Galloway in connection with the sanctions imposed on Iraq following the first Gulf War. The Charity Commission refused Mr Kennedys request on the ground that the information was subject to an absolute exemption from disclosure contained in section 32(2) of the FOIA. The Court of Appeal, overturning the decision of the Information Tribunal, held that the absolute exemption applied and dismissed Mr Kennedys request. The issues before the Supreme Court on Mr Kennedys appeal are: (a) whether section 32(2) of the FOIA contains, as a matter of ordinary statutory construction, an absolute exemption which continues after the end of an inquiry; and (b) if it does contain such an absolute exemption, whether that is compatible with Mr Kennedys rights under article 10 of the European Convention on Human Rights (the Convention). If section 32(2) were not so compatible, the following further issues would arise: (c) in the light of the duty in section 3 of the Human Rights Act 1998 to interpret primary legislation so far as it is possible to do so in a way which is compatible with the Convention rights, should section 32 be read down so that either: (i) the absolute exemption ceases with the end of the relevant inquiry; or (ii) it contains only a qualified exemption (requiring a general balancing of the competing public interests) rather than an absolute exemption; and (d) if it is not possible to interpret section 32(2) in a manner that is compatible with the Convention, whether the Supreme Court should make a declaration of incompatibility. [9] Lord Mance and Lord Toulson give the leading judgments with which a majority of the court agrees. Lord Sumption gives a concurring judgment. Lord Wilson and Lord Carnwath give dissenting judgments. As a matter of ordinary statutory construction, section 32(2) of the FOIA imposes an absolute exemption from disclosure that lasts until the relevant information is destroyed or for up to 30 (or in future 20) years under the Public Records Act 1958 (Lord Mance at [24 34], Lord Toulson at [102 104]). Mr Kennedy is not assisted by his reliance on the Convention as, in respect of his ability to obtain information, the Charities Act 1993 and the common law put Mr Kennedy in no less favourable position than he would be in if article 10 of the Convention were engaged (Lord Mance at [35 41], Lord Toulson at [105 132]). In any event, article 10 does not impose a freestanding positive duty of disclosure on public authorities (Lord Mance at [57 100]). Ordinary statutory construction The more natural interpretation of section 32(2) is that the absolute exemption continues after the end of the relevant inquiry. The words for the purposes of the inquiry or arbitration qualify the immediately preceding words in 32(2)(a) and (32)(2)(b) and refer to the original purpose for which the relevant documents were placed in the custody of, or were created by, a person conducting an inquiry. They do not refer to the purpose for which a public authority holds the documents at the time of a request for information. (Lord Mance at [24 28], Lord Toulson at [102 103]) The more natural interpretation is also a better fit with the scheme of the FOIA. Under section 62(1), a record becomes a historical record at the end of 30 years. Under section 63(1), information contained in a historical record cannot be exempt information by virtue of section 32. The natural inference is that information falling within section 32 would continue to be exempt for 30 years rather than cease to be exempt at the conclusion of an inquiry. (Lord Mance at [29 30], Lord Toulson at [104]) The relevance of Article 10 of the Convention The effect of section 32 is to take information falling within the absolute exemption outside the scope of the FOIA disclosure regime. The FOIA was never intended to determine whether or not such information should be disclosed. Instead, any question as to its disclosure will be governed by other rules of statute and common law. If the law otherwise entitles Mr Kennedy to disclosure or puts him in a position no less favourable regarding disclosure than that which could be provided under article 10, then there can be no basis for reading down section 32 or concluding it is inconsistent with article 10. (Lord Mance at [6 8, 35 42], Lord Toulson at [106]) Disclosure outside the FOIA In Lord Mances opinion, the Charity Commission has the power to disclose information to the public concerning inquiries on which it has published reports, both in pursuit of its statutory objective under the Charities Act 1993 (since replaced with the Charities Act 2011) of increasing public trust in, and the accountability of, charities, and under general common law duties of openness and transparency on public authorities. The exercise of that power will be subject to judicial review. Given the importance of the principles of openness and transparency, courts will apply a very high standard of review to any decision not to disclose information in answer to questions of real public interest raised by a journalist in relation to inquiries on which the Charity Commission has published reports, and would take into account similar factors and provide a no less favourable standard of protection for a person seeking information, as any review under article 10 of the Convention. [43 56] In Lord Toulsons opinion, open justice is a fundamental principle of common law. Judicial processes should be open to public scrutiny, unless and to the extent, that there are good reasons for secrecy. Letting in the light, is the best way of keeping those exercising the judicial power of the state, up to the mark and for maintaining public confidence. These underlying considerations apply also to any quasi judicial inquiries and hearings, such as an inquiry conducted by the Charity Commission, though the application of such principles will vary according to context. In conducting any judicial review of a decision not to disclose information, the High Court should exercise its own judgment on whether the open justice principle requires disclosure. [109 132] The scope of the right to receive information under article 10 Had it been necessary for the resolution of the appeal, the Supreme Court would have concluded that article 10 did not contain a freestanding right to receive information from public authorities. The recent developments in the case law of the European Court of Human Rights relied on by Mr Kennedy were not sufficient to justify a departure from the principle clearly established in a series of Grand Chamber decisions on article 10. (Lord Mance at [57 100]) Dissenting judgments Lord Wilson [160 201] and Lord Carnwath [202 248] would have allowed the appeal on the basis that Mr Kennedy had a right to receive the requested information under article 10 of the Convention. Lord Wilson and Lord Carnwath would read down s 32(2) such that the absolute exemption expired at the end of the relevant inquiry. This would preserve the FOIA as the mechanism for obtaining information, which they considered would offer a number of advantages to a person seeking information compared with a judicial review procedure.
The Appellant, MS, is a Pakistani national who entered the UK in 2011 at the age of 16 on a visitors visa. During the four preceding years, while still in Pakistan, he had been subjected to forced labour and physical abuse by relatives. One of them, his step grandmother, brought him to the UK by deceiving him into thinking this was for the purpose of his education. On arrival, he was forced to work for no pay, as arranged by his step grandmother for her own financial gain. He then moved from job to job for the next 15 months, under the control and compulsion of adults, as both the First tier Tribunal (FTT) and the Upper Tribunal (UT) later found. In September 2012, the Appellant came to the attention of the police, who referred him to a local authority social services department. They in turn referred him to the National Referral Mechanism (NRM), due to concerns as to his vulnerability and the possibility that he had been trafficked. However, in February 2013, the NRM decided, without meeting or interviewing the Appellant, that there was no reason to believe he was a victim of trafficking. The NRM considered that he was never under the control or influence of traffickers while in the UK and changed jobs freely. The Appellant sought judicial review of this decision in April 2013. In September 2012, the Appellant had also claimed asylum, but that application was rejected in August 2013. The Secretary of State therefore decided to remove the Appellant from the UK. The Appellant appealed this decision on asylum and human rights grounds to the FTT, who found as above that he had been under compulsion and control. The FTT nonetheless dismissed his appeal. The UT granted permission to appeal and re made the decision in view of errors of law by the FTT, finding in favour of the Appellant. In addressing the NRMs decision, the UT observed that that could only be challenged by judicial review proceedings, not through the immigration appeals system. However, the UT also held that if an NRM decision was perverse or otherwise contrary to some public law ground, the UT could make its own decision as to whether an individual was a victim of trafficking. Otherwise, the decision to remove him would be contrary to the European Convention on Action against Trafficking in Human Beings (ECAT) and the European Convention on Human Rights (ECHR). The Respondent appealed to the Court of Appeal, which allowed the appeal for the reason that, in accordance with AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469; [2014] Imm AR 513, the UT could only go behind the NRMs decision and re determine the factual issues as to trafficking if the decision was perverse or irrational or one which was not open to the NRM. The UT had in effect treated the NRM decision as an immigration decision and had also been wrong to consider that the obligations under ECAT were also positive obligations under article 4 of the ECHR, which prohibits slavery, servitude and forced labour. The Appellant was granted leave to appeal to the Supreme Court. He later wished to withdraw from the proceedings, as his immigration problems had now been resolved. A preliminary issue therefore arose as to whether the Equality and Human Rights Commission (EHRC), which had applied to intervene in the proceedings, could take over the appeal. The Supreme Court unanimously allows the appeal. Lady Hale gives the only judgment, with which Lord Kerr, Lady Black, Lord Lloyd Jones and Lord Briggs agree. As to the preliminary issue, following a hearing in October 2019, the EHRC was permitted to intervene and take over the appeal. An intervener is a party to an appeal (Rules of the Supreme Court, rule 3(1)) and an appeal can only be withdrawn with the consent of all parties or the permission of the Court (rule 34(1)). The appeal therefore remained on foot until the Court permitted otherwise. The Court is permitted to adopt any procedure consistent with the overriding objective, the Constitutional Reform Act 2005 and the Rules (rule 9(7)). The overriding objective is to secure that the Court is accessible, fair and efficient (rule 2(2)). Where an important question of law that may have been decided wrongly below is raised in an appeal, it is open to the Court to permit intervention and allow the intervener to take over the conduct of the appeal [9 10]. On the principal issue, the Secretary of State conceded that, when determining an appeal as to whether a removal decision would infringe rights under the ECHR, a tribunal must determine the relevant factual issues for itself on the evidence before it, albeit giving due weight to a decision making authoritys prior determination. It therefore became common ground that a tribunal is not bound by a decision of the NRM nor must it seek a public law ground for finding such a decision flawed [11]. This is because a tribunal has statutory jurisdiction to hear appeals from immigration decisions. The Nationality, Immigration and Asylum Act 2002 and Immigration Rules indicate that those appeals are plainly intended to involve the hearing of evidence and determination of factual issues. The House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167 had made clear that this was a tribunals role [12 14]. The proper consideration and weight to be given to an authoritys previous decision will depend on the nature of that decision and its relevance to the issue before the tribunal. In the present case, the FTT and the UT were better placed to decide whether the Appellant was a victim of trafficking than the authority. The more difficult question was the relevance of that factual determination to the appeals [15]. This depended upon the relationship between the obligations in ECAT and the obligations in article 4 of the ECHR [17]. Article 4 of ECAT defines trafficking such that a child, recruited and transported for the purpose of exploitation through forced labour or services, may be considered a victim of trafficking [18]. ECAT also imposes other obligations on states, to prevent trafficking and to identify and protect its victims [19]. In Siliadin v France (2006) 43 EHRR 6, the European Court of Human Rights held that states have positive obligations under article 4 of the ECHR to adopt and apply criminal law provisions against slavery, servitude, and forced labour. In Rantsev v Cyprus and Russia (2010) 51 EHRR 1, it held that trafficking within the meaning of article 4 of ECAT fell within the scope of article 4 of the ECHR. The state had a positive obligation to prevent, to investigate, to protect and to punish [23 26]. This was confirmed in Chowdury v Greece (Application No 2184/15) and in J v Austria (Application No 58216/13) [32 33]. The investigative duty arises whether or not there has been a complaint and must be capable of leading to the identification and punishment of the individuals responsible [25]. In the present case, the UT decided that the Appellant was indeed a victim of trafficking. Once brought to the attention of police, the Appellant was removed from the risk of further exploitation, while the UT held that he would not be at risk of re trafficking if returned to Pakistan. However, there had not yet been an effective investigation into the breach of article 4, as the police took no action after referring him to social services. Such an investigation is required and cannot take place if the Appellant is removed to Pakistan. The appeal is therefore allowed and the UTs decision on this ground restored [34 36].
This appeal is about the jurisdiction of the High Court to grant bail. In 1973 Martin Corey was sentenced to life imprisonment for murdering two police officers. The respondent, the Secretary of State for Northern Ireland, released him on licence in 1992. The Secretary of State referred Mr Coreys case to the parole commissioners on 13 April 2010 to ask whether his licence should be revoked. The next day a single parole commissioner recommended that it should be. That recommendation was based on material the Secretary of State supplied, including confidential information from the security services. The Secretary of State accordingly revoked Mr Corys licence on 15 April 2010. Mr Corey was taken into custody the next day and has been in prison since then. Mr Coreys case was then referred, as required, to the commissioners. The Secretary of State provided information including a gist of material he had certified as confidential. The single commissioner who initially considered the case read these and the confidential material itself. In accordance with her recommendation, a full panel of commissioners considered Mr Coreys case at a closed hearing on 25 January 2011. His interests were represented by a special advocate, who, like the panel, was entitled to see a statement of all open and closed material relevant to the case, including anything undermining the Secretary of State's case. Mr Cory and his own legal representatives were allowed to see a similar statement in respect of the open material, but not of the closed material. On 15 August 2011 the panel gave both closed and open judgments. In the open judgment, they stated that Mr Corey had become involved in the Continuity Irish Republican Army from early 2005 and was in a position of leadership in it from 2008 until his recall to prison. Since the panel were satisfied that Mr Corey posed a risk of serious harm to the public, they were required to refuse to direct his release. Mr Cory sought judicial review of the commissioners decision on the grounds (among others) (1) that the gist disclosed inadequate information and (2) that the refusal to direct his release had been based solely or to a decisive degree on the closed material and so breached article 5(4) of the European Convention on Human Rights. Article 5(4) provides, Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Mr Justice Treacy held on 9 July 2012 that the commissioners decision was indeed based solely or decisively on the closed material. He further found that the allegations in the open material were not specific enough to allow Mr Corey, through his lawyers and the special advocate, to refute them. The commissioners hearing therefore breached his right to procedural fairness under article 5(4). Instead of quashing the commissioners decision, however, Mr Justice Treacy directed them to reconsider the case in accordance with his ruling. He also gave Mr Corey bail pending their decision, since his detention would be in the meantime unlawful. The Secretary of State immediately applied for a stay of that order and appealed it. On 11 July 2012 the Court of Appeal decided that the judge did not have power to grant bail, and so stayed that grant. This Court granted Mr Corey permission to appeal on the bail issue. Meanwhile, the Court of Appeal allowed the Secretary of States appeal on the article 5(4) issue, which had been heard separately. The Court of Appeal concluded that the material which had been provided allowed Mr Corey to instruct his advisers effectively, and so article 5(4) was complied with. This Court refused Mr Corey permission to appeal on that issue. Whether the High Court could grant him bail is therefore academic, but important enough that this Court allowed the appeal to proceed on that issue. The Supreme Court unanimously dismisses Mr Coreys appeal. Lord Kerr, with whom the other Justices agree, concludes that the High Court in Northern Ireland has an inherent jurisdiction to grant bail [1819], provided certain conditions are met. The question is whether those conditions are met in this case. They are that it is (a) necessary for the effective disposal of Mr Coreys claim and (b) not contrary to the purpose or spirit of the legislation in question that the court should have power to order his release pending reconsideration of his case by the commissioners [2122]. The judges order that the review of Mr Coreys detention had not been conducted lawfully and that it should be reconsidered was, on its own terms, a full vindication of the right which the appellant had asserted. On that ground alone, the judge did not have power to order Mr Coreys release [27]. It is important to bear in mind that in the present case the lawfulness of Mr Coreys detention on foot of his recall to prison was not directly in issue. The focus of his challenge was to the commissioners failure to direct his immediate release and the manner in which their determination was made [25]. In any event, an inherent jurisdiction to order release in the circumstances of this case would run directly counter to the operation of the legislation in question in this case: the Life Sentences (Northern Ireland) Order 2001. One of the principal philosophies underlying the Order is expressed in article 6(4) which provides that the commissioners shall not direct a prisoners release unless satisfied that his confinement is no longer necessary to protect the public from serious harm. And article 3(2) requires that the commissioners have expertise from a variety of fields: one must hold or have held judicial office; one must be a psychiatrist; one must be a chartered psychologist; one must have experience of working with victims of crime; and must have expertise in the causes of delinquency or the treatment of offenders. This requirement reflects the need to have available a range of specialists who can contribute to what must often be a difficult debate as to whether the rigorous test set out in article 6(4) is satisfied. Put simply, the legislature has placed in the hands of a panel of experts the difficult decision as to when a life sentence prisoner should be released. Their role should not be supplanted by a judge who does not have access to the range of information and skills available to the commissioners [3133]. Lord Kerr notes in passing the European Court of Human Rights recent judgment in James v United Kingdom (2012) 56 EHRR 399, which appeared to suggest that, if a prisoner has not had a chance to take the steps necessary to meet the conditions for release, his detention would breach article 5(1) of the European Convention during those periods. Article 5(1) allows states to imprison people only when justified by law, and requires prisoners not lawfully detained to be released. Since it is unnecessary to decide the question in this case, Lord Kerr would defer decision on it until necessary. Lord Mance, with whom the remaining Justices agree, suggests that James should be interpreted as arising only from a secondary obligation, implied by article 5(1), to progress prisoners through the prison system. Such a breach would not require a prisoner to be released, but would entitle him to damages. These observations do not form part of the reasoning on which the judgment in this case was based.
The Appellant, referred to in these proceedings as JR38, was involved in serious rioting which took place in Derry in July 2010. At the time he was 14 years old. CCTV images taken of him in the course of rioting were later published in two newspapers as part of a police campaign designed identify individuals involved in the riots and also to discourage further sectarian rioting. The Appellant complained that the publication of the images breached his rights under Article 8 of the European Convention on Human Rights. Dismissing the application, the Divisional Court held that the Appellants Article 8 right was engaged because that the published image was of a child, where it was at least possible he was involved in serious public disturbances. This risked stigmatising the child and impairing his rehabilitation and reputation. The interference with Article 8 was justified, however, because it was necessary for the administration of justice and not excessive in the circumstances. The Supreme Court unanimously dismisses the appeal. Lord Kerr, with whom Lord Wilson agrees, holds that Article 8 is engaged but the interference with the right is justified. Lord Toulson, with whom Lord Hodge agrees, holds that Article 8 is not engaged, but if it were engaged the publication would be proportionate. Lord Clarke writes a separate judgment concurring with Lord Toulson. Lord Kerr examines the Strasbourg jurisprudence on engagement of Article 8 and concludes that a nuanced approach is needed to reach a conclusion on this issue [55]. The test is essentially a contextual one, involving not only whether the person asserting the right had a reasonable expectation of privacy but also many other possible factors such as the applicants age, consent, the risk of stigma and the use to which the published material is put. Reasonable expectation of privacy may be a factor of considerable weight but it is not determinative [56]. In the present case Article 8 is engaged because of JR38s age and the effect which the publication of the photographs may have on him. The emphasis under Article 8 should be on the publication of the photographs rather than the activity in which the Appellant was engaged [65]. Lord Kerr concludes, however, that the interference with Article 8 is justified. The police were entitled to disclose the image under the Data Protection Act 1998 as the publication was for the purposes of the prevention and detection of crime and the apprehension and prosecution of offenders [70]. Publication furthered these objectives as well as seeking to divert young people from criminal activity [73]. The polices painstaking approach showed that this was a measure of last resort [76 77]. The publication struck a fair balance between the interests of the Appellant and the community. Appellant stood to benefit from being diverted from criminal activity, as did his community from the prevention of crime and apprehension of offenders [79 80]. Lord Toulson concludes that Article 8 is not engaged. The touchstone for engagement of Article 8 is whether the person seeking to assert their rights had a reasonable expectation of privacy [88]. The fact that the Appellant was a child at the relevant time does not justify using another test but may be relevant to its application [95]. It is an objective test [98]. There was no reasonable expectation of privacy in these circumstances. Article 8 does not exist to protect rioting and the Appellants involvement in the riot was not an aspect of his private life which he was entitled to keep private [100]. Alternatively, if Article 8 were engaged, any interference with the Appellants Article 8 right was justified for the reasons given by Lord Kerr [103]. Lord Clarke holds that Article 8 was not engaged or, alternatively, that any engagement was justified. The relevant test is whether there was a reasonable expectation of privacy [107]. The Appellant could not have had an objectively reasonable expectation that such photographs would not be published [112].
These appeals concern the making of orders for possession of a persons home in favour of a local authority. The issue is whether, in circumstances where the occupier is not a secure tenant, the court that makes the order must consider the proportionality of making it. Most residential occupiers of property owned by local authorities are secure tenants under the Housing Act 1985. This restricts the circumstances in which they can be evicted. Certain types of tenancy, however, are excluded from that regime. The case of London Borough of Hounslow v Powell involved one such type: accommodation provided under the homelessness regime in Part VII of the Housing Act 1996. In order to regain possession of such accommodation, domestic law requires only that the local authority must give notice to quit and obtain a court order. Ms Powell, as a homeless person to whom the local authority owed a duty to provide accommodation, had been given a licence to occupy property under Part VII. Rent arrears of over 3,500 accumulated and the local authority issued a claim for possession of the property. The court hearing the claim made an order requiring Ms Powell to give up possession. The cases of Leeds City Council v Hall and Birmingham City Council v Frisby involved a second type of non secure tenancy: introductory tenancies entered into under Part V of the Housing Act 1996. This type of tenancy is designed to provide an initial period of probation. It remains introductory for a period of one year, after which it becomes secure unless the introductory tenancy has been terminated. If the local authority decides to terminate the introductory tenancy the tenant is entitled to a review of that decision, but once the relevant procedures have been gone through section 127(2) of the 1996 Act provides that the court shall make a possession order. Mr Hall and Mr Frisby had both been granted introductory tenancies, by Leeds and Birmingham City Councils respectively. Allegations were made against them of noise nuisance and anti social behaviour. The local authorities served notices indicating their intention to seek possession, which were upheld on review. In possession proceedings the courts found in favour of the local authorities. The three occupiers appealed to the Court of Appeal. They argued that Article 8 of the European Convention on Human Rights, which provides that Everyone has the right to respect for his home, required that the court hearing the possession proceedings must be able to assess the proportionality of making the orders against them. As the court did not do this, there was a breach of their Article 8 right. The Court of Appeal dismissed the appeals and the occupiers appealed to the Supreme Court. The Supreme Court unanimously holds that a court must have power to consider the proportionality of making possession orders under the homelessness and introductory tenancy schemes. In the cases of Powell and Hall the Court allows the appeals and, having considered the facts in the case of Frisby, it dismisses his appeal. Lord Hope and Lord Phillips give judgments. These cases were a sequel to the case of Manchester City Council v Pinnock [2010] UKSC 45. There the Supreme Court held that Article 8 of the European Convention on Human Rights requires that a court, which is being asked to make a possession order against a person occupying under the demoted tenancy scheme in Part V of the Housing Act 1996, must be able to consider whether it would be proportionate to do so. The present cases raised the question of whether that principle applied to the homelessness and introductory tenancy schemes and, if so, how cases of this kind should be dealt with in practice by the courts. The Court held that the principle from Pinnock applied to the homelessness and introductory tenancy schemes: in all cases where a local authority seeks possession of a property that constitutes a persons home under Article 8, the court must be able to consider the proportionality of making the order. [3] The Court then set out general guidance on meeting this requirement. A court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and has crossed the high threshold of being seriously arguable. The threshold will be crossed in only a small proportion of cases. The question then will be whether making an order for possession is a proportionate means of achieving a legitimate aim. Two legitimate aims should always be taken for granted: the making of the order will (a) vindicate the authoritys ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. The authority is not required to plead in advance any more particularised reasons or to advance a positive case that possession would accord with the requirements of Article 8: such a requirement would collapse the distinction between secure and non secure tenancies. Where the local authority has a particularly strong or unusual reason for seeking possession, however, it is entitled to ask the court to take that reason into account and it should plead the reason if it wishes the court to do so. If a court entertains a proportionality argument, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order sought. [33] [49] On the face of it, section 127(2) of the Housing Act 1996 gives the court no discretion in the case of an introductory tenancy. But this does not prevent the court considering proportionality. Given that lawfulness is an inherent requirement of the procedure for seeking a possession order, it is open to the court to consider whether that procedure has been lawfully followed in respect of the defendants Article 8 rights. [56] Section 89 of the Housing Act 1980, however, does restrict the courts discretion as to the period for which the taking effect of the order can be deferred. The section provides that a court making a possession order cannot postpone the date for possession for more than fourteen days or, in the case of exceptional hardship, six weeks. The Supreme Court held that the mandatory language of the section prevents a court allowing a longer period to comply with the requirements of proportionality. There was, however, no indication that proportionality requires a longer period and therefore no reason to declare section 89 incompatible with Article 8. [64]
The appellant (Mrs Takhar) and the third respondent (Mrs Krishan) are cousins. The second respondent (Dr Krishan) is Mrs Krishans husband. Mrs Takhar and Mrs Krishan became reacquainted in 2004. At this time, Mrs Takhar was suffering from some personal and financial problems, arising mainly from the condition of a number of properties which she owned. In November 2005, it was agreed that the legal title to the properties would be transferred to Gracefield Developments Limited (Gracefield). This was a newly formed company, of which Mrs Takhar and the Krishans were to be the shareholders and directors. Mrs Takhar claims that it was agreed that the properties would be renovated, initially at the cost of the Krishans, and then let. She says that the rent would be used to meet the costs of the renovations but that she was to remain the beneficial owner of the properties. The Krishans case is that Gracefield was set up as a joint venture company and the properties were to be sold after they had been renovated. They say Mrs Takhar was to receive an agreed value for the properties and that any additional profit would be divided equally between Mrs Takhar and the Krishans. On 24 October 2008, Mrs Takhar issued proceedings claiming that the properties had been transferred as a result of undue influence or other unconscionable conduct on the part of the Krishans. At a trial before His Honour Judge Purle QC (HHJ Purle), a significant item of evidence was a scanned copy of a written profit share agreement, apparently signed by Mrs Takhar, which supported the Krishans case. In advance of the trial, Mrs Takhar applied for leave to obtain evidence from a handwriting expert. That application was refused. At the trial, she said that she was unable to assert that the signature was not hers but that she was unable to say how it had come to appear on the document. In the absence of an explanation from Mrs Takhar, HHJ Purle accepted the Krishans evidence and rejected Mrs Takhars claim. Following the trial, Mrs Takhar engaged a handwriting expert, who stated conclusively that the signature on the agreement had been transposed from an earlier document. On receipt of this report, Mrs Takhar sought to have HHJ Purles judgment and order set aside on the ground that it had been obtained by fraud. The respondents claimed that this application was an abuse of process because the documents on which the expert report was based were available to Mrs Takhar before the trial before HHJ Purle. This matter was tried as a preliminary issue. Mr Justice Newey did not agree that the claim was an abuse of process. The Court of Appeal allowed the respondents appeal, holding that a person who seeks to have a judgment set aside on account of fraud had to show that the fraud could not have been discovered by reasonable diligence. Mrs Takhar now appeals to the Supreme Court. The Supreme Court unanimously allows the appeal. It decides that a person who applies to set aside an earlier judgment on the basis of fraud does not have to demonstrate that the evidence of this fraud could not have been obtained with reasonable diligence in advance of the earlier trial. Lord Kerr, Lord Sumption, Lord Briggs and Lady Arden all write judgments. Lord Kerr (with whom Lord Hodge, Lord Lloyd Jones and Lord Kitchin agree): The existence or non existence of fraud had not been decided by HHJ Purle. It is therefore a new issue which does not involve the re litigation of an identical claim [21]. The former House of Lords and Privy Council authorities on which the respondent relied are not authority for the proposition that, in cases where it is alleged that a judgment was obtained by fraud, it may only be set aside where the party who makes that application can demonstrate that the fraud could not have been uncovered with reasonable diligence in advance of the judgment [54]. It is a basic principle that the law does not expect people to arrange their affairs on the basis that others may commit fraud [44]. Australian and Canadian courts have both recognised a special place occupied by fraud in the setting aside of judgments and the reasoning in these cases is compelling [48 52]. It is contrary to justice that a fraudulent individual should profit because their opponent fails to act with reasonable diligence. A person who obtains a judgment through fraud deceives not only their opponent but also the court and the rule of law. It would also seem wrong if a person could be sent to prison for fraudulent conduct and yet remain able to enforce a judgment they obtained because of that fraud [52]. Lord Sumption (with whom Lord Hodge, Lord Lloyd Jones and Lord Kitchin agree): An action to set aside an earlier judgment for fraud is not a procedural application but a cause of action [60]. This cause of action is independent of the cause of action asserted in the earlier proceedings and there can therefore be no question of cause of action estoppel. There is also no question of issue estoppel, because the basis of the action is that the earlier decision is vitiated by fraud and cannot bind the parties [61]. Abuse of process is a concept relating to the courts procedural powers. Previous House of Lords cases have established that where a question could have been but was not raised in earlier proceedings, the courts power to restrain abusive re litigation is subject to a degree of flexibility [62]. Re litigation is abusive not only where the point could have been argued previously but where it should have been. A person is entitled to assume honesty on the part of others, so an application would only be abusive if a claimant deliberately decided not to investigate a suspected fraud or rely on a known one [63]. A more flexible and fact sensitive approach to these cases would introduce an unacceptable element of discretion into the enforcement of a substantive right. The standard of proof for fraud is high but, once it is satisfied, there are no degrees of fraud which can affect the right to have a judgment set aside [64]. Lord Briggs: This case involves a conflict between two important and long established principles of public policy. Firstly, the principle that fraud unravels all and, secondly, the principle that there must come an end to litigation. In this case, the fraud principle should prevail. However, instead of a bright line rule, the court should apply a fact intensive approach to the question of whether a lack of diligence in earlier proceedings really does render a future claim to set aside a judgment on the basis of fraud an abuse of process. This should start from the position that a litigant has a legal right to have set aside a judgment obtained by fraud which is not dependant upon having exercised reasonable diligence in the earlier proceedings. [68]. Lady Arden: There is no reasonable diligence rule barring fresh actions based on fraud [91]. Usually, a judgment obtained by fraud should be set aside. It is wrong in principle that a fraudster should retain the fruits of his fraud but there are some exceptions to this rule [92 93]. If a party suspected a fraud and did not investigate it, any restriction on access to court would have to be compliant with the European Convention on Human Rights, so any restriction on the claimants rights could go no further than necessary [94]. There are factors on both sides. However, the reasonable diligence rule is illogical as it automatically imposes a sanction which could be wholly disproportionate to the lack of diligence [98]. There are already safeguards for the defendant and the Civil Procedure Rules Committee could consider whether further safeguards are needed [99 103].
The Freedom of Information Act 2000 (FOIA 2000) enables members of the public to see documents held by many public bodies, subject to certain exemptions; the Environmental Information Regulations 2004 (EIR 2004) enables members of the public to see documents containing environmental information, again subject to certain exemptions. In April 2005, Mr Evans, a journalist who works for the Guardian newspaper, requested disclosure of communications passing between various government departments and HRH the Prince of Wales (the letters). The requests were made under both FOIA 2000 and EIR 2004. The Departments refused to disclose the letters on the ground that they considered the letters were exempt. Mr Evans complained to the Information Commissioner, who upheld the Departments refusal. Mr Evans then appealed to the Information Tribunal, and the matter was transferred to the Upper Tribunal. The Upper Tribunal conducted a full hearing with six days of evidence and argument. In its determination issued 18 September 2012, the Upper Tribunal decided that many of the letters (referred to as advocacy correspondence) should be disclosed. The Departments did not appeal this decision, but on 16 October 2012 the Attorney General issued a certificate under section 53(2) FOIA 2000 and regulation 18(6) EIR 2004 stating that he had, on reasonable grounds, formed the opinion that the Departments had been entitled to refuse disclosure of the letters, and set out his reasoning. If this Certificate is valid, its effect would be to override a decision of the Upper Tribunal, a judicial body which has the same status as the High Court. Mr Evans issued proceedings to quash the Certificate on the grounds (1) that the reasons given by the Attorney General were not capable of constituting reasonable grounds and/or (2) in so far as the advocacy correspondence was concerned with environmental issues, the Certificate was incompatible with Council Directive 2003/4/EC (the 2003 Directive). The Divisional Court dismissed his claim. However, the Court of Appeal allowed his appeal on both grounds. The Attorney General appealed to the Supreme Court. The issue before the Supreme Court was therefore whether the Certificate is valid, and in particular (i) whether the Attorney General was entitled to issue a certificate under section 53 FOIA 2000 that he had on reasonable grounds formed the opinion that the Departments had been entitled to refuse disclosure; (ii)(a) whether, in any event, regulation 18(6) EIR 2004 complies with the relevant provisions of EU law; and (b) if it does not, whether the Certificate can stand even in relation to the non environmental information. It should be noted that the Supreme Court has not seen the advocacy correspondence, and did not need to do so in order to determine the points of law set out above. The Supreme Court dismisses the Attorney Generals appeal. By a majority of 5:2 the Court considers that the Attorney General was not entitled to issue a certificate under section 53 FOIA 2000 in the manner that he did and therefore that the Certificate was invalid. By a majority of 6:1 the Court holds that reg.18(6) is incompatible with the 2003 Directive and must be treated as invalid, and therefore that the Certificate would in any event have been invalid insofar as it related to environmental information. The appeal based on FOIA 2000 Lord Neuberger (with whom Lord Kerr and Lord Reed agree) concludes that section 53 FOIA 2000 does not permit the Attorney General to override a decision of a judicial tribunal or court by issuing a certificate merely because he, a member of the executive, considering the same facts and arguments, takes a different view from that taken by the tribunal or court. This would be unique in the laws of the United Kingdom and would cut across two constitutional principles which are fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the executive are reviewable by the courts, and not vice versa [52]. Clear words must be used if the statute is to have that effect, and section 53 is a very long way from being clear enough [58 59]. Lord Mance (with whom Lady Hale agrees) considers that it would be open to the Attorney General to issue a certificate under section 53 if he disagrees with the decision of the Upper Tribunal. However, disagreement with findings of fact or rulings of law in a fully reasoned decision would require the clearest possible justification (and may only be possible in the circumstances suggested by Lord Neuberger at [71 79]), while disagreement as to the weight to be attached to competing public interests would require properly explained and solid reasons [130 131]. In this case the Attorney General impermissibly undertook his own redetermination of the relevant factual background, including certain constitutional conventions on which the Upper Tribunal had heard detailed evidence, which he was not entitled to do. The Attorney Generals certificate does not engage with the closely reasoned analysis of the Upper Tribunal [142]. The Certificate proceeded on the basis of findings which differed radically from those made by the Upper Tribunal without real or adequate explanation, and cannot be regarded as satisfying the test for issue of a certificate [145]. Lord Wilson and Lord Hughes each give judgments dissenting on this issue. They each consider that the Attorney General was entitled to issue the certificate under section 53 on the ground that he did. Environmental information under the 2003 Directive Lord Neuberger and Lord Mance (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Hughes agree) point out that article 6.1 requires that, following a refusal by a public authority of a request for environmental information, the refusal must be reconsidered or reviewed administratively, article 6.2 requires that thereafter the applicant has access to a review procedure before a court of law or [similar] body] whose decisions may become final, and article 6.3 requires that [f]inal decisions under paragraph 2 shall be binding on the public authority holding the information [100]. In light of these provisions, they consider that it would be impermissible for the executive to have another attempt at preventing disclosure, and therefore regulation 18(6) EAIA 2004 is incompatible with article 6 of the 2003 Directive [103]. However, this conclusion would only apply to the environmental information [111]. Lord Wilson dissenting on this point, would have held that the issue of a section 53 certificate in respect of environmental information whose disclosure was ordered by a court or judicial tribunal was not incompatible with the provisions of the 2003 Directive.
This appeal arises out of the trial of nine men on charges involving organised child sex grooming and child prostitution in the Oxford area as part of Thames Valley Polices Operation Bullfinch. On 14 May 2013 seven of the men were convicted. The appellant is a prominent figure in the Oxford area, who was arrested at about the same time as the nine and was released on bail. The reason for his arrest was that one of the complainants had told the police that she had been abused by a man with the same, very common, first name. She failed, however, to pick him out at an identity parade. He was later told by police that he would be released from arrest without charge, but that the case would be kept under review. That remains the position. The Times and the Oxford Mail wish to publish information identifying the appellant as someone who had been arrested, bailed, his passport impounded and then de arrested in connection with Operation Bullfinch, or as someone suspected by the police of being involved in sexual offences against children. Magistrates originally granted an injunction shortly after the appellants arrest, prohibiting the disclosure of any information which might identify the appellant until such time as he was charged with an offence. At trial the judge made an order which ultimately prohibited the publication of any report which referred to evidence which might identify or tend to identify the appellant until a decision had been made whether or not to charge him. A significant part of the relevant complainants evidence related to a man who shares the appellants first name. The appellant was also referred to a number of times in the course of the trial: in a police officers evidence of his attendance at an identity parade; in the evidence of at least one of the defendants; and in the closing speeches of prosecuting and defence counsel. After the police released the appellant from arrest without charge, the newspapers applied to lift the order on the ground that there were now no pending or imminent proceedings against the appellant which might be prejudiced by publication. The judge circulated a draft ruling stating that he proposed to lift the order, but never formally did so. The matter moved to the High Court where the appellant applied for an interim injunction restraining publication, on the basis that it was necessary to protect him against the misuse of private information and the infringement of his right to private and family life protected by article 8 of the European Convention on Human Rights (ECHR). The judge dismissed the application, and the Court of Appeal dismissed the appellants subsequent appeal. By a majority of 5 to 2, the Supreme Court dismisses the appeal. Lord Sumption gives the judgment, with which Lord Neuberger, Lady Hale, Lord Clarke and Lord Reed agree. Lord Kerr and Lord Wilson write a joint dissenting judgment. With limited exceptions, the English courts administer judgments in public, at hearings which any member of the public may attend and which the press may report [12]. The limits on permissible reporting of public legal proceedings are set by the law of contempt, defamation and the law protecting ECHR rights [17]. The present appeal turns on the last category. In Campbell v MGN Ltd, the House of Lords expanded the scope of the equitable action for breach of confidence by absorbing into it the values underlying articles 8 (right to respect for private and family life) and 10 (freedom of expression) of the ECHR. This effectively recognised a qualified common law right of privacy [21]. The legal basis of the judges analysis was challenged in two respects. Firstly, it was argued that the decision of the Supreme Court in A v British Broadcasting Corporation marked a new approach to the balancing test between competing rights laid out in In re S (Identification: Restrictions on Publication). In A the Court had dismissed the BBCs application to lift an order prohibiting identification of a deportee who had been convicted of child sex offences because it would not only have violated his article 2 and 3 ECHR rights, but would have also subverted the basis of the decision to authorise his deportation. That argument fails in the present case because while A turned on very particular facts, the general approach adopted in Lord Reeds leading judgment was in fact very similar to that of Lord Rodger in In re Guardian News and Media Ltd [28, 33]. The second argument was that in adopting Lord Rodgers observations in In re Guardian News and Media Ltd about the publics ability to distinguish between suspicion and guilt, the judge had applied a legal presumption which was not warranted. This also fails: Lord Rodger was not presenting this as a legal presumption to be applied irrespective of the circumstances. This part of the judges reasoning was doing no more than saying that while some members of the public would equate suspicion with guilt, most would not [33]. The judge committed no error of law, and was entitled to reach the conclusion that he did [34]. The appellant seeks to prohibit the reporting of matters discussed at public trial. These are not matters about which he can have had any reasonable expectation of privacy [34(1)]. The impact on the appellants family life is indirect and incidental: neither he nor his family participated in any capacity at trial, and nothing that was said at trial related to his family. It would be incoherent for the law to refuse an injunction to prevent damage to the appellants reputation directly, while granting it to prevent the collateral impact on his family life in the same circumstances [34(3)]. Lord Sumption would not, however, rule out the possibility of a pre emptive injunction in a case where the information was private or there was no sufficiently substantial public interest in publication. Such cases will be rare in relation to the reporting of public court proceedings [34(4)]. The public interest in allowing the press reporting of court proceedings extends to the appellants identity. The policy which permits media reporting on judicial proceedings depends on (i) the right of the public to be informed about a significant public act of the state, and (ii) the laws recognition that the way in which the story is presented is a matter of editorial judgment. The appellants identity is not an irrelevant feature of this particular story [34(5)]. In their dissenting judgment, Lord Kerr and Lord Wilson consider that the judge had erred in his approach to balancing the strength of the rival considerations [39]. They take the view that Lord Rodger was stating a legal presumption that courts should act on the basis that most people believe that someone charged with an offence is innocent until proven guilty [44 5], but that he had offered no evidence or authority to support such a presumption. Lord Kerr and Lord Wilson conclude that there was no basis for the presumption and, accordingly, the judge erred in dismissing the appellants application because of it. Their Lordships also indicate that, under article 8, it is likely that the appellant would have established his right to an injunction at full trial [59].
These two appeals raise common issues regarding the scope of the Ruiz Zambrano v Office national de lemploi (Case C 34/09) [2012] QB 265 (Zambrano) principle. Zambrano states that a non member state national (TCN) parent of a European Union (EU) citizen child resident within the EU is entitled to reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union citizenship rights on removal of the TCN parent from the EU [1]. The first appeal is Mr Patels. Mr Patel is an Indian national who has no right to remain in the UK. He cares for his parents, who are British citizens. Mr Patel has been trained to help with his fathers kidney dialysis, and he cares for his immobile mother. Mr Patels parents are reliant on him. The medication required for dialysis may not be available in India. The First tier Tribunal (FTT) found that Mr Patels father would not return to India with Mr Patel; instead, he would continue to receive medical treatment in the UK, although that would not give him the same quality of life as Mr Patels care. Mr Patel was unsuccessful in invoking the Zambrano principle in the FTT, the Upper Tribunal (UT) and Court of Appeal (CA) [5]. Mr Patel appeals. The second appeal is Mr Shahs. Mr Shah is a Pakistani national. He is the primary carer of his British citizen infant son. Mr Shahs wife is also a British national. Mr and Mrs Shah live with their son. Mrs Shah works full time. Whilst Mrs Shah works, Mr Shah cares for their son. The FTT found that if Mr Shah were to return to Pakistan, Mrs Shah would not remain in the UK; she would accompany her husband to Pakistan. Their child would also leave the UK. As a result, the FTT and UT found that Mr Shah was entitled to remain. The CA disagreed and held that Mrs Shah could look after the son in the UK; the requirement for compulsion to leave the UK was therefore not satisfied [6]. Mr Shah appeals. The Supreme Court unanimously allows Mr Shahs appeal and dismisses Mr Patels appeal. Lady Arden writes the sole judgment [33]. Article 20 of the Treaty on the Functioning of the European Union (TFEU) provides for a right to EU citizenship. This lies at the heart of the EU legal architecture [9]. Article 20 alone does not confer any rights on a TCN (see R (Agyarko v Secretary of State for the Home Department [2017] 1 WLR 623) [10]. However, the CJEU in KA v Belgium (Case C 82/16) [2018] 3 CMLR 28 (KA) emphasised the importance of the right to EU citizenship and stated that a TCN might acquire a derived right of residence if their removal could deprive an EU citizen of their citizenship rights (KA, paras 47 50) The TCNs derived right of residence is only provided to ensure that the EU citizens rights are effective. This limits the entitlement of a TCN to reside in the EU. There must be a relationship of dependency between the EU citizen and the TCN [16]. KA draws a distinction between the case of an EU citizen who is an adult and one who is a child (KA, para 76) [13] [14], [23]. A TCN can have a relationship of dependency with an adult EU citizen sufficient to justify a derived right of residence only in exceptional circumstances (quoting KA, para 65) [17]. What lies at the heart of the Zambrano jurisprudence is the requirement that the EU citizen be compelled to leave the EU territory if the TCN, with whom the EU citizen has a relationship of dependency, is removed [22]. With that context, the judgment examines Mr Patel and Mr Shahs respective cases in turn. Regarding Mr Patel, the FTT concluded that Mr Patels father would not accompany him to India. Unless Mr Patel could argue that some case law from the CJEU, including Chavez Vilchez v Raad van Bestuur van de Sociale verzekeringsbank (Case C 133/15) [2018] QB 103 (Chavez Vilchez), relaxes the level of compulsion required in the case of adults, and thus provides assistance to Mr Patel, his appeal must fail. However, any possible qualification Chavez Vilchez makes to the general principle of compulsion does not apply in the case of adults. Chavez Vilchez is about children. KA makes clear that children and adults are treated separately and a TCN will only have a derivative right of residence by reference to a dependant relationship with an adult EU citizen in exceptional circumstances. Chavez Vilchez does not relax the level of compulsion required in the case of adults. It is of no assistance to Mr Patel. His appeal must fail as his parents would not be compelled to leave the UK [27]. Chavez Vilchez does not impact Mr Shahs appeal. That appeal depends on the FTTs findings of fact and whether the CA correctly identified the relevant findings for the purposes of the compulsion test. The FTT found that Mr Shah was the primary carer of his son; as such, the child had the relevant relationship of dependency with Mr Shah. Further, Mrs Shahs evidence was that if Mr Shah were removed from the UK then the family would move out of the EU. This was accepted by the FTT, who held that it was an inescapable conclusion that the son would have to leave with his parents. Therefore, the FTT found the requirement of compulsion was met [28]. The CA used the fact that Mrs Shahs decision to leave the EU was voluntary and she could look after the child without Mr Shah to justify holding that there was no question of compulsion [29]. The Supreme Court disagreed. The overarching question is whether the son would be compelled to leave with his father, who was his primary carer, because of his dependency on his father. In answering that question, the Supreme Court had to take into account the childs bests interests and his relationship with each parent, as explained in Chavez Vilchez, para 71. The compulsion test is practical. It is to be applied to the actual facts. The FTT found the son would be compelled to leave. That is sufficient compulsion for the purposes of Zambrano [30]. Therefore, Mr Shahs appeal was allowed [32] [33].
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order (CTO). The question arising on this appeal is whether a patients responsible clinician (RC) may impose conditions in a CTO which amount to the deprivation of his liberty within the meaning of article 5 of the European Convention on Human Rights. The appellant, PJ, is 47. He has a mild learning disability and difficulties falling within the autistic spectrum. This has been accompanied by aggressive and irresponsible behaviour consisting of violent and sexual offending. He was convicted in 1999 of assault occasioning actual bodily harm and threats to kill, and the court imposed a hospital order on him under s 37 MHA. He was discharged from a medium secure unit to a unit which later became a hospital, where he remained voluntarily as an informal patient before, in May 2009, he was compulsorily detained for treatment under the civil power in s 3 MHA. In September 2011 he was discharged from hospital subject to a CTO, which required him to reside in a care home subject to close supervision, from which his absences were either escorted or subject to strict limits as to time, purpose and place. Before the Mental Health Review Tribunal (MHRT), PJ argued that the arrangements under the CTO amounted to an unlawful deprivation of his liberty and he should therefore be discharged from it. The MHRT held that they did not but, even if they had, the need for a CTO took precedence over any human rights issues. The Upper Tribunal held that this approach was wrong, but the Court of Appeal concluded that by necessary implication the MHA permitted such conditions in a CTO. It also held that the MHRT had no power to discharge the CTO even if its terms meant that the patient was unlawfully deprived of his liberty. The Supreme Court unanimously allows the appeal and declares that there is no power to impose conditions in a CTO which have the effect of depriving a patient of his liberty. Lady Hale, with whom all the other justices agree, gives the only reasoned judgment. CTOs were introduced into the MHA by amendment in 2007, as a new form of order which permitted patients to be released into the community subject to conditions which would support their continuing treatment [1]. The statutory regime is set out in ss 17A to 17F. The conditions in a CTO are imposed by a patients RC without judicial input. None of the elaborate provisions in the MHA authorising the detention of patients and their recapture if they escape or go absent apply to a community patient. There is no power to impose medical treatment on a community patient who has the capacity to consent to it and does not consent. There are no sanctions for failing to comply with the conditions in a CTO, but a patient may be recalled to hospital if he breaches certain conditions, or if he requires medical treatment and there would otherwise be a risk to his health or safety, or that of others [16]. The Welsh Ministers argued that as any conditions imposed in a CTO cannot be enforced they cannot therefore deprive a patient of his liberty [17]. This is indeed the legal effect of a CTO, but it does not mean that a patient has not in fact been deprived of his liberty. The focus is always on his concrete situation created by the conditions [18]. The fact that the purpose of the deprivation is to enhance rather than curtail the patients freedom does not affect this assessment [20 22]. There is no express power in s 17B(2) to impose conditions which have the effect of depriving a community patient of his liberty. It is a fundamental principle of statutory construction that a power expressed in general words should not be construed to interfere with fundamental rights such as the right to liberty of the person [24]. The test for a necessary implication is a strict one and there is no reason to suppose that Parliament would have included such a power in the MHA had it been thought of [26]. A strong indication to the contrary is the fact that CTO conditions cannot compel a patient to take his medication [27]; and the lack of detailed rules which the MHA would have provided had detention in a place outside hospital been contemplated [28]. If the MHRT finds on the facts that a community patient is being deprived of his liberty, it has no power to revoke or vary the conditions. The question therefore arises as to whether it should exercise its only power under the MHA to discharge the patient, or whether the patient must challenge his unlawful detention in an action for judicial review [30 32]. This problem is more theoretical than real for two reasons. First, although the MHRT has no jurisdiction over the conditions of treatment and detention in hospital, these can be relevant as to whether the statutory criteria for detention are made out; and the patients actual situation may well be relevant to whether the criteria for the CTO are made out. If, however, the patient needs to challenge his unlawful detention under a CTO other than by his right to make periodic applications to the MHRT, his remedy is either habeas corpus or judicial review [33]. Second, a conscientious RC can be expected not to impose conditions which this judgment makes clear are not permitted in a CTO, and this is reinforced by the duties to provide information to a patient and (usually) his nearest relative about the effect of a CTO [34].
This appeal and cross appeal arise from the 2008 collapse of the Lehman Brothers group (the Group). The Groups main trading company in Europe was Lehman Brothers International (Europe) (LBIE), an unlimited company. LB Holdings Intermediate 2 Ltd (LBHI2) holds all LBIEs ordinary and redeemable shares, except one ordinary share which is held by Lehman Brothers Ltd (LBL). LBIE, LBL and LBHI2 have all been in administration since January 2009. LBIE appears to be able to repay its external creditors in full. Under the provisions of the Insolvency Act 1986 as amended (the 1986 Act), an administrator of a company is permitted to make distributions to creditors. Since December 2009, LBIE has been in a distributing administration. The LBIE administrators declared and paid a first interim dividend to its unsecured creditors in November 2012. The LBIE administrators received proofs of debt from unsecured creditors including LBL and LBHI2 and the LBL administrators received proofs from LBHI2 and LBIE. A consolidated set of rules regarding corporate insolvency is set out in the 1986 Act and the Insolvency Rules 1986 as amended (the 1986 Rules) (together, the 1986 legislation). Schedule B1 to the 1986 Act contains provisions dealing with administration. Part 2 of the 1986 Rules is concerned with Administration Procedure and Chapter 10 of that Part, which includes rules 2.68 to 2.105, deals with Distributions to Creditors. The 1986 legislation does not constitute a complete insolvency code and certain established judge made rules may continue to operate. In a distributing administration, as in a liquidation, the duty of the office holder is to gather in and realise the assets of the company and to use them to pay off the companys liabilities. A generalised summary of the distribution priorities in relation to such payments (the waterfall) is set out in In re Nortel GmbH [2014] AC 209 para 39. In February 2013, the administrators of LBIE, LBL and LBHI2 issued proceedings seeking the determination of the court on issues arising in the administrations. In March 2014, Richards J delivered a judgment, and made ten consequential declarations. The Court of Appeal (Moore Bick, Lewison and Briggs LJJ) upheld most, but varied some, of them. The Supreme Court now determines the following issues: Issue 1 concerns the ranking in the waterfall which can be claimed by LBHI2 in its capacity as holder of three subordinated loans made to LBIE, and in particular whether LBHI2s claims rank ahead of statutory interest payable under rule 2.88(7) and/or non provable liabilities. Issue 2 arises from the fact that LBIEs creditors with debts denominated in a foreign currency will be paid under rule 2.86 at the rate of exchange prevailing at the date LBIE went in to administration, and sterling may have depreciated on the foreign exchange markets between that date and the date of payment. The foreign currency creditors claim that they are entitled to receive any contractual shortfall as a non provable claim. Issue 3 concerns whether a creditor of LBIE who had been entitled to, but had not been paid, statutory interest, can claim such interest in a subsequent liquidation. The remaining four issues arise because LBIE is an unlimited company and so its members can be called upon to make contributions under section 74 of the 1986 Act to meet its liabilities if LBIE is in liquidation. Issue 4 is whether such contributions can be sought in respect of liability for statutory interest and for non provable liabilities of LBIE. The other three issues arise because LBHI2 and LBL are creditors of LBIE as well as members of LBIE liable to contribute as such. Issue 5 is whether LBIE can prove in the administrations of LBHI2 and of LBL in respect of their contingent liabilities to make contributions in LBIEs prospective liquidation if they are called on to do so pursuant to section 150 of the 1986 Act. If LBIE cannot do this, issue 6 is whether LBIE can exercise a right of set off. If not, issue 7 is whether LBIE can invoke the so called contributory rule which applies in a liquidation, namely that a person cannot recover as a creditor until his liability as a contributory had been discharged. Lord Neuberger writes the lead judgment, with whom (i) Lord Kerr and Lord Reed agree, (ii) save on an obiter issue on Issue 2, Lord Sumption agrees, and (iii) save on Issue 2 on which he dissents, Lord Clarke agrees. Issue 1: LBHI2s contention, which turns on the interpretation of the Subordinated Loan Agreements, is that its claim as subordinated creditor ranks ahead of statutory interest and non provable liabilities because they are obligations not payable in the insolvency of LBIE or (in the case of statutory interest) it is not payable and owing by [LBIE] within the meaning of the Subordinated Loan Agreements. In agreement with the courts below, the Supreme Court rejects LBHI2s arguments. Statutory interest is plainly an obligation payable in LBIEs insolvency [48 49]. It is also payable and owing by [LBIE], even though LBIE could not be sued for it [51 56]. Secondly, the notion that a liquidator who meets a non provable liability makes a payment in the Insolvency is implied by the provisions of the 1986 Act and by the practical realities [58 61], and the same applies to an administrator [62]. Accordingly, statutory interest and non provable liabilities must be met before any balance can be used for payment of the subordinated loans [64]. In agreement with the judge and disagreeing with the Court of Appeal, LBHI2 cannot prove for the subordinated loans until the non provable liabilities are paid or clearly could be met [70]. Issue 2: Disagreeing with the Judge and the majority of the Court of Appeal, the Supreme Court concludes by a majority of 4 to 1 that rule 2.86, which provides that unsecured debts payable in foreign currencies are to be converted in to sterling at the official rate on the administration date, spells out the full extent of a foreign currency creditors rights [90], and so foreign currency creditors cannot claim as a non provable debt the difference between the sterling value of the debt at the administration date and that at the date the debt was paid [112]. This is consistent with the conclusion reached in reports produced prior to the 1986 legislation [88]. It is also supported by the fact that the contrary conclusion would lead to a one way option in favour of the foreign currency creditors [91] and that, in contrast to proofs for certain other debts, there is no provision in the 1986 Rules for their adjustment [93]. It is dangerous to rely on judicial dicta regarding a previous insolvency code [83]. Lord Clarke dissents on this issue [206 and 211 221]. On the wider issue whether the payment in full of a proved debt satisfies the underlying contractual debt, by a majority of 3 to 2 the Supreme Court inclines to the view that it is inconsistent with Chapter 10 of Part 2 of the 1986 Rules, and the natural meaning of rule 2.72(1), that a debt met in full nonetheless has a component which is capable of resurrection [104 107]. Lord Sumption is inclined to disagree on this issue [195 201] and Lord Clarke agrees with him. Issue 3: Rule 2.88(7) only applies to an existing administration and constitutes a direction to an administrator while in office. Section 189(2) and rule 4.93 exclude rule 2.88(7) interest being proved for or paid once a company previously in administration is put in to liquidation [117]. In agreement with the Judge and disagreeing with the Court of Appeal, the Supreme Court considers that it is impermissible to have recourse to an entirely new judge made rule to fill this gap [120 123]. Disagreeing with the Judge, the Supreme Court concludes that the contractual right to interest for the post administration period does not revive or survive in favour of a creditor who has proved for a debt and been paid on his proof in a distributing administration. Rules 2.88, 4.93 and section 189 provide a complete statutory code for recovery of interest on proved debts [124 5]. Issue 4: Liabilities in section 74 of the 1986 Act is not limited to those capable of being the subject matter of a proof and includes non provable liabilities [136]. However, rule 2.88(7) provides that statutory interest is payable only where there is a surplus after payment of the debts proved, and, in disagreement with the Judge and the Court of Appeal, the Supreme Court holds that section 74 cannot be invoked to create a surplus from which statutory interest can then be paid [139]. Issue 5: section 150 creates a statutory obligation on a member [153] and entitles the liquidator to make the call to fulfil his statutory duties. Contrary to the view of the courts below, the Supreme Court considers that the nature of that obligation is such that it is incapable of being the subject matter of a proof unless the company concerned is in liquidation [154]. Any money paid under section 74 forms a statutory fund which can only come into existence once that company is in liquidation [156]; if that company not in liquidation, there is no existing person to be identified as a potential creditor, merely a possible future liquidator [158]. Further, the alternative would lead to serious difficulties [160 163]. Issue 6: essentially for the same reasons, prospective section 150 liabilities cannot be set off by the LBIE administrators [171]. Issue 7: It is plainly inconsistent with the pari passu principle and with the statutory aim of enabling effective calls to be made in a liquidation to allow LBHI2 and LBL to be paid out on their proofs like any other unsecured creditor, given that they are probably insolvent [172]. The contributory rule which applies in liquidations can properly be, and should be, extended to a distributing administration, with procedural modifications to achieve consistency with the legislative framework [180 182].
The founder of Magmatic Limited (Magmatic), Robert Law, won a prize in 1998 for a design of a ride on suitcase for children. Mr Law subsequently updated the design and applied to register it at the Office for Harmonization in the Internal Market, who published it on 28 October 2003 as Community Registered Design No 43427 0001 (the CRD). The CRD consists of six images prepared by a 3D Computer Assisted Design (CAD). Since May 2004, Magmatic has manufactured and sold ride on suitcases for children under the trade mark Trunki whose shape is very similar to the design shown on the CRD. In February 2013, Magmatic issued proceedings seeking damages and an injunction against PMS International Limited (PMS), alleging that PMS were importing into, and selling in, the United Kingdom and Germany ride on suitcases for children under the name Kiddee Case which infringed the CRD. At first instance, the judge, Arnold J, found, amongst other matters, that the Kiddee Case infringed the CRD. The Court of Appeal allowed PMS appeal. Magmatic now appeal to the Supreme Court. The Supreme Court unanimously dismisses Magmatics appeal. Lord Neuberger gives the only judgment, with which the other Justices agree. Community Design Right is governed by Council Regulation (EC) No 6/2002 (the Principal Regulation), which provides that a design shall be protected to the extent that it is new and has individual character [7]. What matters is the overall impression created by it, and that potential customers will appreciate it on the basis of its distinctiveness [6, 10]. In considering an issue of this nature, an appellate court should not reverse a judges decision unless he has erred in principle [24]. The Court of Appeal decided that issue for itself and came to a different conclusion from the judge on the basis of three criticisms of the judges approach [16 22]. Therefore the essential question in this appeal is whether those criticisms were justified [26]. The first criticism was that the judge failed to give proper weight to the overall impression of the CRD as an animal with horns, which was significantly different from the impression made by the Kiddee Case, which were either an insect with antennae or an animal with ears [21]. The overall impression given by the CRD is indeed that of a horned animal; and the judge did not specifically refer to this when comparing the CRD with the Kiddee Case [37]. A trial judge cannot be expected in every case to refer to all the points which influenced his decision, but when a judge has given a full and careful judgment, conscientiously identifying a significant number of points which weigh with him, an appellate court can properly conclude that his failure to mention an important point means that he has overlooked it. This was the case here [39]. The second criticism was that the judge failed to take into account the effect of the lack of ornamentation to the surface of the CRD [21], i.e. that the absence of decoration reinforced the horned animal impression [40]. This has limited force; unless it simply consisted of items such as eyes and a mouth, any decoration could well detract from the animal impression and even such items could be said to distract attention from the horns [41]. The Court of Appeals second criticism was correct, although it is only a relatively minor point which mildly reinforces the first criticism [49]. The third criticism was that the judge ignored the colour contrast in the CRD between the body of the suitcase and its wheels [21]. He described the CRD as constituting a claim evidently for the shape of the suitcase and decorations on the Kiddee Case were therefore to be ignored [51]. The CRD consisted of CADs of an item whose main body appears as a uniform grey but which had black strips, a black strap and black wheels. The natural inference to be drawn is that the components shown in black are intended to be in a contrasting colour to that of the main body. Accordingly, the Court of Appeal was correct: the CRD claimed not merely a shape, but a shape in two contrasting colours [53] and the judge was wrong in holding that the CRD was simply a claim for shape [53]. Accordingly, the Court of Appeal were right to hold that the judge materially misdirected himself and could properly consider the question of infringement for themselves. As they approached the question of infringement on the correct basis in law, this Court should be very slow indeed to interfere with their conclusion that the Kiddee Case did not infringe the CRD [56]. The Court has sympathy for Magmatic and Mr Law, as the idea of the Trunki case was a clever one, but Design Right is intended to protect designs not ideas [57]. Magmatic contended that the second criticism raised the question whether the absence of ornamentation can as a matter of law be considered a feature of design and if so whether it was a feature of the CRD in this case [42]. Magmatic further argued, with the support of the Comptroller General of Patents Designs and Trademarks, that this question should be referred to the Court of Justice of the European Union as it is neither acte clair nor acte clair [42]. This Court rejects both arguments. The Court of Appeal was not raising a freestanding point that absence of decoration was a feature of the CRD [43]. In any event, it is not arguable that that an absence of ornamentation cannot be a feature of a CRD [44 48, 60]. As to the question of whether absence of ornamentation was a feature of the CRD in the presence case, the Court of Appeal did not resolve this issue and it is unnecessary to do so in the present appeal [50]. Accordingly, no reference to the CJEU needs to be made, and the appeal is dismissed [59 61].
From 2005 to 2009 Mr Mukhtar Ablyazov was the chairman and controlling shareholder of the respondent, a bank incorporated in Kazakhstan. He was removed from office when the bank was nationalised in 2009. He fled to England where he obtained asylum. The bank brought various claims against him in the High Court. The bank alleged that he had embezzled some US$6 billion of its funds. At the outset of the litigation, the bank obtained an order requiring Mr Ablyazov to identify and disclose the whereabouts of his assets and a worldwide freezing order preventing him from dealing with them. In 2010 the High Court appointed receivers over his assets. It later transpired that Mr Ablyazov had failed to disclose large numbers of undisclosed assets, which he had sought to place beyond the reach of the claimants through a network of undisclosed companies. In 2011 the bank consequently obtained an order committing Mr Ablyazov for contempt of court. He was sentenced to 22 months imprisonment. By the time the judgment had been handed down, however, Mr Ablyazov had fled the country. His whereabouts are unknown. Default judgments in the sum of US$4.6 billion have been obtained against him, but very little has been recovered. In 2015 the bank brought the present claim against Mr Ablyazov and his son in law, Mr Khrapunov, who lives in Switzerland. The bank alleged that Mr Khrapunov, being aware of the freezing and receivership orders, entered into a combination or understanding with Mr Ablyazov to help dissipate and conceal his assets. The judge found that it was sufficiently established for the purposes of this application that they entered into it in England. Mr Khrapunov is said to have been instrumental in the dealings of assets held by foreign companies and in concealing what became of those assets. His actions are said to constitute the tort of conspiracy to cause financial loss to the bank by unlawful means, namely serial breaches of the freezing and receivership orders in contempt of court. This appeal concerns only the position of Mr Khrapunov, who unsuccessfully applied to contest the jurisdiction of the High Court. The Court of Appeal dismissed his appeal. The Supreme Court unanimously dismisses the appeal. Lord Sumption and Lord Lloyd Jones give the lead judgment, with which Lord Mance, Lord Hodge and Lord Briggs agree. Mr Khrapunovs first argument was that contempt of court cannot constitute the required unlawful means for the tort of conspiracy to cause loss by unlawful means, because contempt is not a wrong which by itself entitles a claimant to sue the contemnor: it is not actionable. Therefore, he argued, there was no good, arguable case against him on which to found jurisdiction [5]. The tort of conspiracy can be divided into lawful means conspiracy and unlawful means conspiracy, although that terminology is inexact. A person has a right to advance his own interests by lawful means, even if the foreseeable consequence is damage to the interests of others. Where he seeks to do so by unlawful means, he has no such right. The same is true where the means are lawful but the predominant intention of the defendant is to injure the claimant, rather than to further some legitimate interest of his own. In either case, there is no just cause or excuse for the combination with others. Conspiracy being a tort of primary liability, rather than simply a form of joint liability, the question what constitutes unlawful means cannot depend on whether their use would give rise to a different cause of action independent of conspiracy. The correct test is whether there is a just cause or excuse for the defendants combining with each other to use unlawful means. That depends on (i) the nature of the unlawfulness; and (ii) its relationship with the resultant damage to the claimant [8 11]. Unlike various other legal duties, compliance with the criminal law is a universal obligation. The unlawful means relied on in this case are contempt of court, which is a criminal offence. For that purpose, the defendant must have intended to damage the bank. The damage to the bank need not have been the predominant purpose, but it must be more than incidental. The defendants predominant purpose in this case was to further Mr Ablyazovs financial interests as they conceived them to be. But the damage to the bank was necessarily intended. Their aim was to prevent the bank from enforcing its claims against Mr Ablyazov, and both defendants must have appreciated that the benefit to him was exactly concomitant with the detriment to the bank. The damage was not just incidental [15 16]. It was argued on behalf of Mr Khrapunov that the existence of a claim for conspiracy to commit contempt of court would be inconsistent with public policy because it would substitute a remedy as of right for one which depended on the discretion of the court. The Court is satisfied that there is no such public policy [18 23]. The matters alleged by the bank, if proved, would amount to the tort of conspiracy to injure by unlawful means [24]. Mr Khrapunovs second argument was that the English courts lacked jurisdiction by reason of the general rule, in article 2 of the Lugano Convention to which both the UK and Switzerland are parties, that a person should be sued in the Convention state in which he or she is domiciled. The sole currently relevant exception to that rule is article 5(3), which allows a claim in tort in the Convention state where the harmful event occurred or may occur. Article 5(3) is substantially identical to article 5(3) of the Brussels Regulation (Council Regulation (EC) No 44/2001). The Court of Justice of the European Union (CJEU) has interpreted the latter to cover both: (a) the place where the damage occurred and (b) the place of the event giving rise to it [26 28]. As an exception to the general rule, article 5(3) must be interpreted strictly. Although there is no basis for interpreting it by reference to national rules of non contractual liability, those national rules are relevant. They define the legally relevant conduct and whether an event is harmful. The CJEU has repeatedly focused on the relevant harmful event which sets the tort in motion. This gives effect to an important policy of the Brussels/Lugano scheme by promoting a connecting factor with the jurisdiction of a court which is particularly close to the cause of the damage. In Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV (Case C 352/13) [2015] QB 906 the CJEU identified the formation of a cartel, not its implementation, as the event giving rise to the damage [31 40]. The Court of Appeal correctly identified the place where the conspiratorial agreement was made as the place of the event which gives rise to and is at the origin of the damage. In entering into the agreement, Mr Khrapunov would have encouraged and procured the commission of unlawful acts by agreeing to help Mr Ablyazov to carry the scheme into effect. Thereafter, Mr Khrapunovs alleged dealing with the assets the subject of the court order would have been undertaken pursuant to and in implementation of that agreement. The making of the agreement should be regarded as the harmful event which set the tort in motion [41].
In May 2010 Mr Mark Irvine made requests under the Freedom of Information (Scotland) Act 2002 (FOISA) to the appellant, South Lanarkshire Council (the Council), for information about the number (but not the identity) of its employees in a particular post at particular points on the Councils pay scales. His purpose was to investigate whether the appellants pay gradings favoured work traditionally done by men. The Council refused his request on the ground that to comply with it would contravene the Data Protection Act 1998 (DPA). Information is exempt from disclosure under the FOISA if it constitutes personal data under the DPA and disclosure would contravene any of the data protection principles in that act. The DPA provides that personal data should not be processed unless at least one of the conditions set out in Schedule 2 is met. The relevant condition, condition 6, would be satisfied if disclosure were necessary for the purposes of legitimate interests pursued by Mr Irvine, except where it would be unwarranted by reason of prejudice to the rights and freedoms of the data subjects. Mr Irvine complained to the respondent, the Scottish Information Commissioner (the Commissioner), who investigated and then held that the Council should disclose the information Mr Irvine sought. The Council appealed against this ruling to the Inner House of the Court of Session, alleging in addition that the Commissioner acted in breach of natural justice by failing to disclose to the Council certain communications sought and received by him in the course of his investigation. The appeal was dismissed and the Council pursued a further appeal on both issues to the Supreme Court. The Supreme Court unanimously dismisses the appeal. It holds that the Commissioner was entitled to reach his conclusion that disclosure of the information should be given by the Council to Mr Irvine, and that there had been no breach of the rules of natural justice when the Commissioner did not copy the correspondence to the Council. Lady Hale gives the only judgment. The right to the disclosure of information under the FOISA did not trump the provisions of the DPA, which continued to protect the right to privacy with respect to the processing of personal data [6 7]. The conditions in Schedule 2 of the DPA applied to any kind of operation performed on personal The word necessary was used in several of the conditions and likely to have the same meaning throughout. Interpretation of this word had to be capable of applying equally well with each of the situations envisaged in the conditions, some of which involved compliance with legal obligations [8]. Condition 6 required three questions to be answered in relation to Mr Irvines request [18]: (i) Was Mr Irvine pursuing a legitimate interest or interests? (ii) Was the processing of the personal data necessary for the purposes of those interests? (iii) Was the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the employees? The European Court of Justice (ECJ) had confirmed that Council Directive 95/46/EC (to which the DPA gives effect in the United Kingdom), insofar as it governs the processing of personal data which is likely to infringe fundamental freedoms, in particular the right to privacy, should be interpreted in the light of fundamental rights. National legislation which was incompatible with the right to privacy secured by Article 8 of the European Convention on Human Rights would not satisfy the requirements of the Directive [20 22]. The concept of necessity had its own independent meaning, although the ECJ had not supplied a definition. The Council argued on the appeal that there was a strict test of necessity and that questions of proportionality only came into other aspects of the conditions [23]. The Supreme Court agreed that the word necessary had to be considered in relation to the processing to which it relates, but condition 6 had a counterbalance with the rights and interests of the data subjects built into it and it might not matter where the proportionality requirements of Article 8(2) were considered as long as the overall result was compliant with them [25]. In this case, where the identity of the employees would not be revealed, it was difficult to see how there would be any interference with their rights to privacy and it was enough to apply condition 6 in its own terms [26]. It was well established in community law that, in the context of justification, necessary meant reasonably rather than absolutely or strictly necessary. It formed part of the proportionality test and any measure which interfered with a right protected by community law must be the least restrictive for the achievement of a legitimate aim [27]. The Commissioner, in applying a proportionality approach to the meaning of necessary in condition 6, had adopted a test which was probably more favourable to the Council than was required and certainly no less favourable. It was quite clear that he was entitled to reach the conclusion that he did [28]. On the second aspect of the appeal, it was common ground that the Commissioner had a duty to act fairly, especially as the sole finder of facts. He was entitled to make his own inquiries and obliged to give notice to the public authority from which disclosure of information was being sought under the FOISA of any new material elicited by his inquiries which was adverse to its interests [29 31]. In this case the material contained in the correspondence generated by the Commissioners enquiries was already known to the Council and it was not a breach of the rules of natural justice for the Commissioner to refrain from copying it to the Council [32 33].
The Appellant was one of Kazakhstans four systemic banks. The Respondent, Mr Ablyazov, was its chairman and majority shareholder between 2005 and early 2009. In February, Mr Ablyazov fled to England following the Banks nationalisation. The Bank claimed that he had presided over the misappropriation of US$10 billion of the Banks monies for his own personal benefit, and commenced 11 sets of proceedings. It successfully obtained judgments against Mr Ablyazov in four cases, in an aggregate sum of $4.4 billion, and a Freezing Order on 12 November 2009. Mr Ablyazov had entered into four Loan Agreements in 2009 2010. He exercised his right to draw down fully under those Agreements, and directed various payments for legal and corporate services and in relation to a property. The Bank applied for declarations that (on the assumption that the Loan Agreements were valid) Mr Ablyazovs rights to draw down under them were assets for the purposes of the Freezing Order and drawings under them could only be made pursuant to the exceptions at paragraph 9 of the Order. The first instance judge dismissed the application, and the Court of Appeal dismissed the Banks appeal. The issues before the Supreme Court were (1) whether Mr Ablyazovs right to draw down under the Loan Agreements is an asset within the meaning of the Freezing Order, (2) whether the exercise of that right by directing the lender to pay the sum to a third party constitutes disposing of, dealing with or diminishing the value of the assets, and (3) whether the proceeds of the Loan Agreements were assets within the meaning of the extended definition in paragraph 5 of the Freezing Order, because the Respondent had the power directly or indirectly to dispose of, or deal with [the proceeds] as if they were his own. The Supreme Court unanimously allows the Banks appeal on issue 3, on the basis that the proceeds of the Loan Agreements were assets within the meaning of the extended definition in paragraph 5 of the Freezing Order. Lord Clarke gives the judgment. The only real question is what the Freezing Order in fact made means [16 17]. The Court of Appeal was wrong to have regard to the flexibility principle, which has no role in the exercise of the construction of the Freezing Order as an order of the court. The correct approach to construction is restrictive, not expansive [18 19], and involves consideration of the particular context of the order, including the development of the relevant clauses in freezing injunctions [21 26]. Paragraph 5 of the Order in this case is very similar to paragraph 6 of the Order in JSC BTA Bank v Solodchenko [2010] EWCA Civ 1436. Both differ from the pre 2002 form of Freezing Order, in that they include an extended description of assets in the last two sentences and the words whether the respondent is (or respondents are) interested in them legally, beneficially or otherwise [27]. The courts have approached the language of the forms of Order cautiously, but the scope of Freezing Orders has been gradually extended. In Federal Bank of the Middle East v Hadkinson [2000] 1 WLR 1695, the Court of Appeal recognised that it might in exceptional circumstances be possible to frame an Order so that it froze trust assets, and in Solodchenko the Court of Appeal concluded that this was the effect of the amendments to the first part of paragraph 6 of that Order. The standard form of wording does not prevent the Respondent from borrowing money and spending it [28 30]. In ordinary legal parlance, the choses in action representing the rights under the Loan Agreements would be regarded as assets [31 33]. Context is of particular importance. The Court of Appeal considered Hadkinson and Solodchenko, concluding that the enforcement principle is not absolute and that the right to draw down under the Loan Agreements undoubtedly belonged to the Respondent [35]. These are considerations arising from the wording added to the standard form of Freezing Order. So far as the standard form is concerned, the authorities do not support the proposition that the Respondents right to draw down under the Loan Agreements is an asset within the meaning of Freezing Orders as originally drafted. It is inappropriate to reverse those decisions. The right is not an asset within the meaning of the Freezing Order and the Respondent did not dispose of, deal with or diminish the value of the assets, if the Freezing Order is construed without reference to the extended definition in the second sentence of paragraph 5 [38]. The Banks appeal on issues 1 and 2 is dismissed. But the wording of the Order is different in the more recent forms, used in this case and in Solodchenko. The proceeds of the Loan Agreements are assets within the meaning of the extended definition in paragraph 5 of the Freezing Order in this case [39]. Mr Ablyazovs instruction to the lender to pay the lenders money to a third party was dealing with the lenders assets as if they were his own. It was wrong to dismiss the argument that the Respondent had a power to direct the lender what to do with the funds it was contractually obliged to make available to him. The Loan Agreements contain a binding legal obligation that the proceeds of the facility would be used at the Respondents sole discretion, and a power to direct the lender to transfer the proceeds to any third party [40 42]. The extended definition is not primarily designed to catch assets which the defendant claimed he held on trust. That was the effect of the additional words at the beginning of the clause [43 44]. The last two sentences of paragraph 5 are designed to catch assets over which the Respondent has control, not assets which he owns legally or beneficially. The Respondent had the power to, and did, deal with the assets as if they were his own under clause 1.12 of each agreement [45 50]. The Banks appeal on issue 3 is allowed.
In August 2007 B Atlantic (the Vessel), owned by the Appellant, was used by unknown third parties in an unsuccessful attempt to export cocaine from Venezuela by strapping a parcel of drugs to the vessel underwater. The Vessel was detained by Venezuelan authorities. After a period of more than six months, the Appellant treated the Vessel as a constructive total loss. The issue raised by the present case is whether the owners are entitled to recover the Vessels insured value from the Respondents, the Vessels war risk insurers. This turns on the terms of the insurance policy. The cover afforded was on the terms of the Institute War Strikes Clauses Hulls Time (the Institute Clauses). The key provisions were: Clause 1: PERILS Subject always to the exclusions hereinafter referred to, this insurance covers loss of or damage to the Vessel caused by 1.2 capture seizure arrest restraint or detainment, and consequences thereof or any attempt thereat 1.5 any terrorist or any person acting maliciously or from a political motive 1.6 confiscation or expropriation. Clause 3: DETAINMENT In the event the Vessel shall have been the subject of capture seizure arrest detainment confiscation or expropriation, and the Assured shall thereby have lost the free use and disposal of the Vessel for a continuous period of [6] months then for the purpose of ascertaining whether the Vessel is a constructive total loss the Assured shall be deemed to have been deprived of the possession of the Vessel without any likelihood of recovery. Clause 4.1.5: EXCLUSIONS This insurance excludesarrest restraint detainment confiscation or expropriationby reason of infringement of any customs or trading regulations On a trial of preliminary issues Hamblen J held that Clause 4.1.5 was not confined to Clause 1.2 and 1.6, but left open whether it applied to Clause 1.5. At trial, Flaux J held that the owners were entitled to recover, because Clause 4.1.5 did not apply to an infringement of customs regulations occurring due to malicious acts of third parties falling within Clause 1.5, such as the attempted smugglers act in attaching the drugs to the hull. The Court of Appeal disagreed, holding that the Appellants claim was excluded under Clause 4.1.5 even if it fell within Clause 1.5. The owners appealed on the basis of common ground that the attempted smugglers were acting maliciously within the meaning of Clause 1.5. During the course of the hearing the Supreme Court considered that it was necessary to re examine that common ground. The parties made further written submissions on this point [6]. The Supreme Court unanimously upholds the Court of Appeals decision and dismisses the appeal. First, the Vessels loss was not caused by any person acting maliciously within the meaning of Clause 1.5 of the Institute Clauses. Second, even assuming that there was loss caused by a person acting maliciously, it was still excluded by Clause 4.1.5. Lord Mance writes the judgment. Acting Maliciously The attempted smugglers were not acting maliciously within Clause 1.5 [30]. An element of spite, ill will or the like is required, although this is not limited to conduct directed towards the insured interest. An act directed with the relevant mental element towards causing the loss of or damage or injury to other property or towards a person could lead to consequential loss of or damage to an insured interest within Clause 1.5 [28]. The attempted smuggling cannot here be regarded as aimed at the detention of or any loss or damage to the Vessel or any property or person [29]. Clause 1.5 must be read in its immediate context and in the light of the recent marine insurance authorities which would have been in the minds of the drafters of the Institute Clauses [28]. With regard to context, what the drafters appear to have had in mind are persons whose actions are aimed at causing loss of or damage to the vessel or other property or persons as a by product of which the vessel is lost or damaged. Detection of the smuggled drugs and any consequent loss or damage to the Vessel were the exact opposite of the unknown smugglers aim [14]. The Institute Clauses were issued on 1 October 1983 [15]. They were drafted to bring fresh order and clarity to many of the concepts used in the market. Prior authority on the concept of persons acting maliciously is therefore relevant [16]. The Mandarin Star [1968] 2 Lloyds Law Rep 47 and The Salem [1982] 1 QB 946 establish that for a person to be acting maliciously an element of spite or ill will towards someone is required. The (earlier) Institute Clauses were held to be obviously intended to deal with damage effected in the course of some civil disturbance [17]. Whether the malice had to be directed to the cargo owner as opposed to the goods themselves was left unclear [17 and 20]. Authorities dealing with malice in a tortious context and Victorian criminal law statutes from 1861 do not provide helpful guidance to the meaning of any person acting maliciously in Clause 1.5 [25 28]. The Operation of Clause 4.1.5 Even if the attempted smugglers had been acting maliciously within Clause 1.5, the Appellants claim was still excluded under Clause 4.1.5 as arising, at least concurrently, from detainment by reason of infringement of customs regulations [55]. First, Clause 4.1.5 is applicable to circumstances falling within Clause 1.5. It would be surprising if an insured could improve its position by invoking one particular sub clause of Clause 1, such as Clause 1.5, as opposed to Clauses 1.2 or 1.6. Further, the owners are relying on Clause 3 to establish constructive total loss which is exactly the subject matter of Clause 4.1.5 [32]. Second, neither as a matter of causation nor as a matter of construction, is it possible to treat Clause 4.1.5 as inapplicable by drawing some distinction between the malicious act and the infringement of customs regulations as the proximate, real or effective cause of the loss [39]. The two are here effectively the same. Even if some meaningful distinction could be drawn between them, it does not follow that there is a binary choice between two competing proximate, real or effective causes of the insured loss. What is required is a construction of the particular wording, giving effect at each stage to the natural meaning of the words in their context [40]. The general aim in insurance law is to identify a single real, effective or proximate cause of any loss, but in some cases there may be two concurrent causes of loss, particularly where an exception takes certain perils out of the prima facie cover [43]. Where an insured loss arises from the combination of two causes, one insured, the other excluded, the exclusion prevents recovery [49]. Here two potential causes can be identified viz the malicious act and the subsequent seizure and detainment. It was the combination of the two that was fatal. As the seizure and detainment arose from the excluded peril of infringement of customs regulations, the Appellants claim fails [49].
In October 2010 Hassan Barakat, a Lebanese resident, wished to gamble at the London Playboy Club and applied at the club for a cheque cashing facility for up to 800,000. Playboy Clubs policy for gamblers like Mr Barakat was to require a credit reference from his bankers for twice the amount. To avoid disclosing the purpose of the credit facility, Playboy Clubs practice was to arrange for an associated company, Burlington Street Services Ltd (Burlington), to ask the customers bank for the reference. Mr Barakat gave as his bankers Banca Nazionale del Lavoro (BNL) in Reggio Emilia, Italy. Burlington sent a Status Entry Request on Burlingtons headed paper to BNL. BNL stated that Mr Barakat had an account with them and that he was trustworthy up to 1,600,000 in any one week. Playboy Club granted the cheque cashing facility and increased it to 1.25m. Mr Barakat drew two cheques totalling 1.25m, made net winnings of 427,400 which were paid out to him by Playboy Club, returned to Lebanon, and was not seen again at the club. Both cheques were returned, and the club suffered a total net loss of 802,940 (including gaming duty). It was common ground between the parties that BNL had no reasonable basis for their reference. BNL held no account for Mr Barakat until two days after the reference was sent and that account had a nil balance until its closure on 14 December 2010. In the High Court, the trial judge held that BNL owed a duty of care to Playboy Club in relation to its reference. The Court of Appeal disagreed holding that the only duty BNL owed was to Burlington, to whom the reference was addressed. The Supreme Court unanimously dismisses the appeal. Lord Sumption gives the lead judgment with which Lady Hale and Lords Reed and Briggs agree. Lord Mance gives a concurring judgment. The principle espoused in Hedley Byrne & Co Ltd v Heller & Partners Ltd, which permits recovery of pure economic loss for a negligent misstatement where a special relationship exists, is capable of further development. However, voluntary assumption of responsibility remains the foundation of this area of law [7]. The defendants knowledge of the transaction, in respect of which the statement is made, is potentially relevant for several reasons. It identifies by name or description the person or group of persons to whom the defendant can be said to assume responsibility [10]. The representor must not only know that the statement is likely to be communicated to and relied upon by someone, it must also be part of the statements known purpose that it should be communicated and relied upon by that person if the representor is to be taken to assume responsibility to them [11]. Playboy Club argued that the relationship between BNL and the Club was equivalent to contract due to Playboy Clubs status as Burlingtons undisclosed principal. The rule of English law that an undisclosed principal may declare himself and enter upon a contract is an anomaly that survives in modern law due to its antiquity rather than its coherence [12]. It does not follow that simply because a relationship is treated in law as a contractual relationship that it is legally the same as a contractual relationship or involves all the same legal incidents [13]. Whether a relationship is sufficiently proximate to create a duty of care is a question of fact from which the law draws certain conclusions. The liability of a contracting party to an undisclosed principal is a legal, as opposed to factual, construct. It creates contractual relations between parties who do not have a factual relationship with each other. Such a relationship is not necessarily proximate and lacks the element of mutual consent required to give rise to an assumption of responsibility [14]. The majority of the principles governing undisclosed principals are entirely inapposite to the law of tort. In particular, while the relationship between a contracting party and an undisclosed principal may be mutual in a contractual sense it lacks mutuality in tort [15]. BNL had no reason to suppose that Burlington was acting for someone else, and they knew nothing of the Playboy Club. It is plain that they did not voluntarily assume any responsibility to the Club [16]. Lord Mance writes a concurring judgment. There are passages in some authorities which suggest that there are two requirements for a duty of care to arise in respect of a representation: (a) the claimant must be a specific person or group to whom the responsibility may be said to have been undertaken, and (b) the representation must be made specifically in connection with a particular transaction or transactions of a particular kind made known to the representor [20]. Lord Mance does not consider that this claim should fail for want of communication of the purpose or kind of purpose for which an assessment of trustworthiness was required [22]. The claim fails in this case because BNLs representation was directed simply and solely to Burlington, who alone objectively requested the representation, and not to Playboy Club [24].
This appeal concerns a challenge by the Appellant to the validity of schemes and orders made by the Scottish Ministers under the Roads (Scotland) Act 1984 (the 1984 Act) to allow the construction of a road network bypassing Aberdeen to the west of the city. In March 2003, a partnership comprising local public and private bodies produced a regional transport strategy (the MTS), describing and costing numerous proposals, including the western peripheral route (the WPR), intended primarily to reduce congestion in Aberdeen. The Ministers agreed to undertake the implementation of the WPR. Following a campaign against part of the proposed route, the Ministers decided in December 2005 to revise the scheme so as to include a road connecting Stonehaven to the WPR (the Fastlink). It was intended that the Fastlink would reduce congestion on the A90 between Stonehaven and Aberdeen. The Ministers subsequently published Environmental Impact Assessments under s.20A of the 1984 Act, on the basis that the scheme fell within the scope of the Environmental Assessment Directive (the EIA Directive). The Appellant is the chairman of Road Sense, a local organisation opposing the WPR whose members reside along or close to the proposed route. Following objections from him and others, a public inquiry was held to consider environmental and technical issues associated with the WPR, but not whether to proceed with it at all. Following detailed modifications, the Scottish Parliament approved the relevant orders and schemes on 3rd March 2010. The Appellant challenged the validity of WPR in the Scottish courts, under paragraph 2 of schedule 2 to the 1984 Act, on a variety of grounds under EU and domestic law. The Inner House rejected those submissions. It also held that the Appellant was not in any event entitled to bring a challenge as he was not a person aggrieved, and that he had not shown his interests to have been substantially prejudiced so as to entitle him to a remedy, as required respectively by paragraphs 2 and 3 of Schedule 2 to the 1984 Act. Before the Supreme Court, the Appellant argued that the Fastlink had been adopted without the consultation required by the Strategic Environmental Assessment Directive (the SEA Directive), and that that the scope of the public inquiry should have included the question whether the Fastlink was required, under common law principles of procedural fairness. The Supreme Court unanimously dismisses the appeal. The trunk road network on the periphery of Aberdeen is urgently in need of improvement. As such, Mr Waltons determination to pursue his challenge has been the subject of vigorous criticism and suggestions that he has acted irresponsibly. However, his challenge raised a difficult question of law which it was proper for the Court to consider [148 149]. The Court notes that the SEA and EIA Directives require environmental assessments to be carried out in different but mutually complementary circumstances. The SEA Directive is concerned with the environmental effects of plans and programmes which set the framework for future development consent of projects. The EIA Directive is concerned with the environmental impact of specific projects [11 14, 24]. With that distinction in mind, and assuming for the purposes of analysis that the MTS qualified as a plan or programme under the SEA Directive [62, 100, 150], the Court holds that the Fastlink was not a modification to that plan or programme, and therefore did not trigger the consultation requirements of the SEA Directive. The WPR was a specific project undertaken following the MTS, and the Fastlink was a modification of that project, rendering it subject to the EIA Directives requirements instead [64 69, 99, 102, 150]. With regard to the fairness of the public inquiry, it was not argued that the Ministers were obliged by statute to assess the economic, policy or strategic justifications for the Fastlink. Nor was it argued that the Appellant had a legitimate expectation that the scope of the inquiry would include that assessment. In those circumstances, there was nothing to suggest that its remit was unfair to the Appellant [72 73, 101 102]. Those conclusions determined the Appellants challenge. However, due to observations made by the Inner House [1, 74 76], the Supreme Court also clarifies elements of the law on standing to raise such a challenge, and on the availability of a remedy where that challenge is well founded in law . The Court notes that, when considering whether an individual is a person aggrieved, as he must be in order to raise a challenge under paragraph 2 of schedule 2 to the 1984 Act, the legislative and factual context will be important [85]. Given the extent of the Appellants participation in the consultative procedures under the 1984 Act, he was indubitably a person aggrieved under that Act [86 89]. It would be inconsistent with the purpose of environmental law to require that a persons private interests must necessarily be affected for him to be a such a person, as environmental law proceeds on the basis that the environment is of legitimate concern to everyone. If an individual or organisation has a genuine interest in and sufficient knowledge of an environmental issue to qualify them to raise issues in the public interest, they should be regarded as a person aggrieved [152 155]. The Court also concludes that the Appellant would have had standing, as a party with sufficient interest in the WPR, to raise common law proceedings for judicial review. However, such proceedings would have failed on their merits [90 97]. In AXA General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46, the Court had clarified that the function of such proceedings was not only to redress individual grievances [91]. While distinguishing between a busybody and someone with a legitimate concern is context specific, it is not always necessary for someone raising an action to demonstrate a personal interest where the challenged act affects the public generally [92 94]. The rule of law would not be maintained if no one could challenge an unlawful act because everyone was equally affected by it [95]. The Court considers that the nature of a persons interest will have a bearing on the courts exercise of discretion as to the remedy, if any, which should be granted where a challenge such as the Appellants is successful [96, 104]. The Appellant would not have been entitled to a remedy in any event. The exercise of discretion to grant a remedy depends on the factual and statutory context, and there would be such prejudice to countervailing public and private interests that it would be extraordinary if it could not be taken into account in deciding whether the orders creating the Fastlink were to be quashed [132]. Nothing argued before the court suggested that this position is not in line with European legal principles on environmental assessment [135 141]. brackets are to paragraphs in the judgment
Mr Martin Fowler is a qualified diver who is resident in the Republic of South Africa. During the 2011/12 and 2012/13 tax years he undertook diving engagements in the waters of the UKs continental shelf. HMRC says Mr Fowler is liable to pay UK income tax for this period. Whether he is liable depends on the application of a Double Taxation Treaty between the UK and South Africa. Article 7 of the Treaty provides that self employed persons are taxed only where they are resident (i.e. South Africa), whereas article 14 provides that employees may be taxed where they work (i.e. the UK). For the purposes of this appeal, the parties have assumed that Mr Fowler was an employee. Mr Fowler claims he is nevertheless not liable to pay tax in the UK. His case centres on a deeming provision in section 15 of the UKs Income Tax (Trading and Other Income) Act 2005 (ITTOIA). This provides that an employed seabed diver is treated as self employed for the purposes of UK income tax. A previous provision of this kind was originally enacted in the 1970s in order to allow employed seabed divers, who commonly paid for their own expenses, to access the more generous regime tax deductible expenses which was available to the self employed. Mr Fowler argues that, since he is treated as self employed for income tax purposes, he must be treated as self employed under the Treaty and is therefore only taxable in South Africa. HMRC, on the other hand, says ITTOIA does not affect whether someone is an employee, but only regulates the manner in which an employee is taxed. The issue has divided the courts below. The First tier Tribunal (Tax Chamber) was persuaded by Mr Fowlers arguments but the Upper Tribunal (Tax and Chancery Chamber) allowed HMRCs appeal. The Court of Appeal was divided on the question, with the majority agreeing with Mr Fowler. HMRC now appeals to the Supreme Court. The Supreme Court unanimously allows HMRCs appeal, holding that (if the parties factual assumptions are correct) Mr Fowler should be treated as an employee and is subject to UK income tax. Lord Briggs gives the only judgment. Expressions in the Treaty such as salaries, wages and other remuneration, employment and enterprise should be given their ordinary meaning unless domestic legislation alters the meaning which they would otherwise have [18; 30]. Section 15 of ITTOIA provides that a person who would otherwise be taxed as an employee is instead treated as self employed for the purposes of domestic income tax. Deeming provisions of this kind create a statutory fiction which should be followed as far as required for the purposes for which the fiction was created. The courts will recognise the consequences of that fiction being real, but not where this will produce unjust, absurd or anomalous results [27]. Although section 15 uses the expressions income, employment and trade, it does not alter the meaning of those terms but takes their ordinary meaning as the starting point for a statutory fiction [31 32]. Properly understood, it taxes the income of an employed diver in a particular manner which includes the fiction that the diver is carrying on a trade. That fiction is not created for the purpose of rendering a qualifying diver immune from tax in the UK, or for adjudicating between the UK and South Africa as potential recipients of tax, but to adjust the basis of a continuing UK income tax liability [33]. Since the Treaty is not concerned with the manner in which taxes are levied, it would be contrary to the purposes of the Treaty to redefine its scope by reference to ITTOIA. It would also be contrary to the purpose of ITTOIA and would produce an anomalous result [33 34].
The issues raised in this appeal are: (1) the correct approach to the relevance of lies told by an asylum seeker in the assessment of real risk of persecution on return to his or her country of origin; and (2) how far it is legitimate for an appeal court to interfere with the assessment of facts made by a specialist tribunal on the grounds of error of law. MA is a citizen of Somalia. He is a member of the Isaaq clan. He entered the UK illegally on 24 May 1995. He claimed asylum which was refused but he was granted exceptional leave to remain. In 1998 he was convicted of rape and indecency with a child and was sentenced to eight years imprisonment. On 21 May 2002, the Secretary of State for the Home Department served him with notice of intention to make a deportation order. Following a series of failed appeals and fresh submissions, the Secretary of State made a deportation order on 5 April 2004 and removal directions were set. MAs further submissions were accepted by the Secretary of State as a fresh claim to asylum. The Asylum and Immigration Tribunal (AIT) on 19 April 2007 accepted this claim but reconsideration was ordered on 26 February 2008, directed to the issue whether MA as a member of the Isaaq clan would be able to arrange protection against a real risk of physical violence if returned to Mogadishu. After hearing MA give evidence, the AIT concluded that MA had not told the truth about his links and circumstances in Mogadishu, and could not say that he had shown he would be at risk there contrary to Article 3 of the European Convention on Human Rights. The Court of Appeal allowed MAs appeal on the grounds that the AIT seemed to be throwing up their hands in despair and saying that since [MA] has concealed the truth, they cannot make any relevant findings, and that had the AIT made an assessment, they must have concluded that there was a real risk that he would not obtain the relevant protection, having regard to the lengthy period he had been in the UK, including 12 years in prison. The Supreme Court allows the Secretary of States appeal. The AIT did not err in their assessment of MAs lies and there was no error of law which warranted interference by the Court of Appeal. The Court recognises the difficulties facing the AIT in distinguishing truth from lies. A particular problem arises where, as in MAs case, the AIT has disbelieved the majority of the claimants evidence, but there is objective evidence indicating that the majority of individuals with the characteristics of, or alleged by, the claimant would be at risk if returned to the home state: [21]. The Court of Appeal were faced with this problem in GM (Eritrea) [2008] EWCA Civ 833. The Court endorses the approach in GM (Eritrea), the substance of which was not challenged in this appeal. Where the claimants account is rejected as incredible, he or she will only succeed where there is undisputed objective evidence which goes a long way to making good the shortcomings in the claimants own evidence. This, in essence, is what Laws LJ meant in para 54 of his judgment GM (Eritrea): [30]. The weight a lie has in each case is fact sensitive. In some cases, the AIT may conclude that the lie is of no great significance. In others, where, for example, the appellant tells lies on a central issue in the case, the AIT may conclude that it is of great significance. The AIT in this case was rightly alive to the danger of falling into the trap of dismissing the case merely because the appellant has told lies. As recognised by the Lucas direction in the criminal context, people lie for many reasons: [32] [33]. In MAs case, the central issue was whether MA had connections with powerful actors in Mogadishu. The AIT found that he had not told the truth about his links in Mogadishu. Accordingly, in MAs case, the AIT concluded that his lie was of great significance: [33]. The AITs determination records the conflicts in the evidence given by MA about his connections with Mogadishu. The AIT then directed itself on the basis of GM (Eritrea) as to the significance of MAs lies. This direction was accepted by the Court of Appeal to be impeccable. However, the Court of Appeal found that having so directed itself, the AIT then proceeded to misapply it: [34] [41]. The Supreme Court finds that the AIT did not misapply the direction. The AIT did not dismiss the appeal because MAs account was incredible. It is possible to interpret the AITs judgment consistently with the correct self direction: [42], [46] [48]. The Supreme Court also finds that the AIT had not overlooked the fact that MA had spent the last 12 years in prison and administrative detention in the UK. There is no explicit reference to his imprisonment, however, it is clear from the AITs judgment that they were well aware of it: [49]. The AITs conclusion that MA did not satisfy them that he did not have the necessary protective links in Mogadishu was one which was open to them to make: [50]. The Court also makes some general observations about the proper role of the Court of Appeal in relation to appeals from specialist tribunals on grounds of error of law. The appellate court should not characterise as an error of law what is, in reality, no more than a disagreement with the AITs assessment of the facts. Furthermore, where a relevant point is not expressly mentioned in the judgment of the AIT, the court should be slow to infer that it has not been considered and taken into account: [43] [45]. Whilst expressing no view on the issue, the Court also comments on the question of standard of proof, in particular the correct test to apply to past and present facts: [12] [20]. The Court indicates the desirability for the point to be decided authoritatively in another case: [20].
This appeal raises a question of contractual interpretation that is of significance because the condition in question forms part of the Loan Market Association (LMA) standard terms for par trade transactions. It concerns payment by a borrower to a lender of a lump sum at the time when a loan is repaid, sometimes known as a payment premium. The appellant, Tael One Partners Limited (Tael), was one of a number of lenders under an agreement concluded in 2009 by which US $100m was advanced to the borrower. From 30 November 2009, Taels contribution to the loan was US $32m (known as its participation). During the currency of the loan, it assigned its rights in respect of US $11m of its participation to the respondent, Morgan Stanley, under a contract incorporating the LMA terms. Morgan Stanley in turn sold its participation in the loan agreement to a third party. The loan was subsequently repaid by the borrower, together with the payment premium. Tael claims that, under the terms of the transfer to Morgan Stanley, it is entitled to be paid the part of the payment premium which relates to the amount transferred, to the extent that (as Tael argues) it pertains to the period prior to the date of the transfer. The purchase price letter did not provide expressly for any payment to be made by Morgan Stanley in respect of the payment premium. Condition 11 of the LMA terms deals with interest and fees. Conditions 11.2, 11.3, 11.5 and 11.6 deal with the payment of interest or fees by the buyer to the seller, and with each of the four bases on which the parties can agree that the transfer should be settled. In the present case, the agreed basis was paid on settlement date, addressed in condition 11.3. Tael relied on Condition 11.9(a) of the LMA terms. Condition 11.9, Allocation of interest and fees states: Unless these Conditions otherwise provide (a) Any interest or fees (other than PIK Interest) which are payable under the Credit Agreement in respect of the Purchased Assets and which are expressed to accrue by reference to the lapse of time shall, to the extent they accrue in respect of the period before (and not including) the Settlement Date, be for the account of the Seller and, to the extent they accrue in respect of the period after (and including) the Settlement Date, be for the account of the Buyer (b) All other fees shall, to the extent attributable to the Purchased Assets and payable after the Trade Date, be for the account of the Buyer. Tael applied for summary judgment against Morgan Stanley, who responded by also applying for summary judgment. Popplewell J granted Taels application and dismissed Morgan Stanleys. An appeal against that decision was allowed by the Court of Appeal. Tael appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Reed gives a judgment with which Lord Neuberger, Lord Kerr, Lord Toulson and Lord Hodge agree. The starting point is the words the parties used in condition 11.9(a). There is room for argument as to whether the payment premium would be interest or fees or whether it might fall within the definition of PIK interest. It is clear, however, that it is not expressed to accrue by reference to the lapse of time. It is true that a period of time is one of the elements that enter into the calculation of the amount of the premium, but condition 11.9(a) does not say, calculated by reference to the lapse of time and that is not its natural meaning. [41] The word accrue is generally used to describe the coming into being of a right or an obligation. The amount to which there is an entitlement may not be payable until a future date, but an entitlement may nevertheless have accrued. Situations can readily be envisaged in which interest or fees might accrue, in that sense, by reference to the lapse of time. This is not however such a situation. An entitlement to a payment premium under the loan agreement accrues on a defined event. [42] The payment premium is expressed as an amount equal to the difference between the total of several other amounts, on the one hand, and an amount equal to interest calculated at a given rate, on the other hand, so it might be said that part of the premium relates to the period before the settlement date. That does not however mean that the premium can be regarded, retrospectively, as having notionally accrued over that period. The method of calculation of the premium should not be confused with the accrual of the right to it. [43] The textual conclusion is reinforced by the commercial context. The LMA terms are intended for use in a market in which loans are traded: a loan may be traded many times, between many parties, over a number of years. One would not readily infer that a contract for the sale of a loan in a market of that nature was intended to create continuing rights and obligations between the parties to that contract. Further, the LMA terms do not make provision for any mechanism enabling the holder of the putative right to a payment premium, following the sale of his interest in the loan, to know when his right has vested or in what amount. Unless he happened to have retained some participation in the loan, as in the present case, he would not normally know when he had become entitled to payment, or how much he was entitled to be paid. Therefore, it would be more natural to expect the potential value of the right to receive the premium to be reflected in the consideration for which the loan was transferred. [44] Though that conclusion is sufficient to dispose of the appeal it leaves open two related questions. First, does this construction of condition 11.9(a) render it redundant? It does not: condition 11.9(a) can be seen to have a purpose if read together with the provision made as to the payment of interest and fees in conditions 11.2, 11.3 and 11.9(b). [45] Second, does condition 11.9(a) provide a right to payment additional to that conferred by the other provisions of condition 11? It does not. The language used elsewhere in condition 11.9 suggests that it is not intended to confer an additional right to payment. Rather it allocates interest and fees as being for the account of one party or the other, and other conditions then impose an obligation to pay in accordance with that account. [45, 50]
Bilta (UK) Ltd was compulsorily wound up in November 2009 pursuant to a petition presented by HMRC. Biltas liquidators then brought proceedings against its two former directors (the directors) and against Jetivia SA, (a Swiss company) together with Jetivias chief executive (the appellants). The claim alleges that the appellants and the directors were parties to an unlawful means conspiracy to injure Bilta by a fraudulent scheme, which involved the directors breaching their fiduciary duties as directors, and the appellants dishonestly assisting them in doing so. The conspiracy alleged is that between April and July 2009, the directors caused Bilta to enter into a series of transactions relating to European Emissions Trading Scheme Allowances (commonly known as carbon credits) with various parties, including Jetivia, and that those transactions constituted what is known as a carousel fraud, a species of VAT fraud. The liquidators now claim (i) through Bilta, (a) damages in tort from each of the four defendants, (b) compensation based on constructive trust from the appellants, and (ii) directly from each of the four defendants, a contribution under section 213 of the Insolvency Act 1986. The appellants applied to strike out Biltas claim on the basis (i) that the appellants were bound to defeat the claims against them on the basis of a defence of illegality and, (ii) in relation to the section 213 claim, that it could not be invoked against the appellants as section 213 does not have extra territorial effect. In essence, the appellants argument on illegality was that Biltas claims against its directors are barred by reason of the criminal nature of Biltas conduct while under their control. Allegedly, Biltas function was to serve as a vehicle for defrauding HMRC, and the appellants argued that the doctrine of illegality bars Bilta from suing the directors as a means of recovering the companys loss for the benefit of the companys creditors. This raises the issues of (i) the purpose of the illegality defence and its application in relation to Biltas claims and (ii) the circumstances in which the knowledge of directors and other persons is attributed to a legal person such as a registered company. The Supreme Court unanimously dismisses the appeal both in relation to the illegality defence and in relation to section 213. On the first ground, the Court unanimously holds that the illegality defence cannot bar Biltas claims against the appellants on the basis that the conduct of the directors cannot be attributed to the company in the context of a claim against the directors for a breach of their duties. On the second ground, the Supreme Court holds that section 213 of the Insolvency Act 1986 has extra territorial effect, and therefore can be invoked against the appellants. Attribution A company has separate legal personality, but it can act only through its directors and agents. In most circumstances the acts and state of mind of a companys directors and agents can be attributed to the company by applying the rules of the law of agency; however, whether an act or state of mind is attributed to a company depends upon the context in which the question arises [41, 92, 181]. When the question of attribution arises in the context of an agency relationship, the nature of the principals or other partys claim is highly material [87 91, 202]. In an action like the present for breach of duty against directors for using the company to commit a fraud on a third party in a way alleged to have caused the company loss, it is inappropriate to attribute to the company the fraud to which the alleged breach of duty relates, even if it is being practised by a person whose acts and state of mind would be attributable to it in other contexts [7 9, 71, 181]. As between the company and a defrauded third party, the company should be treated as a perpetrator of the fraud but in the different context of a claim between the company and the directors, the defaulting directors should not be able to rely on their own breach of duty to defeat the operation of the provisions of the Companies Act in cases where those provisions were intended to protect the company [42 43, 208]. A claim by a company against its directors could be said to be the paradigm case where attribution is inappropriate [89]. For these reasons all of the members of the Supreme Court would dismiss the appeal on the illegality defence. The purpose and scope of the illegality defence Lord Neuberger (Lord Clarke and Lord Carnwath agreeing) and Lord Mance all consider that this is an inappropriate case in which to decide, on a general basis, the proper approach to the defence of illegality, though they (together with Lord Toulson and Lord Hodge) emphasise the need for a review of the law of illegality by the Supreme Court in an appropriate case [15 17, 34, 174]. Lord Toulson and Lord Hodge express the view that the defence of illegality is a rule of public policy which depends on the nature of the particular claim brought by the claimant and the relationship between the parties [122]. In this case, the fiduciary duties of a director of a company which is insolvent requires the director to have proper regard for the interests of its creditors [123 126]. Such protection would be empty if it could not be enforced [127]. The doctrine of illegality has been developed on the ground of public policy and in the circumstances of this case, to allow the directors to escape liability for breach of their fiduciary duty on the ground that they were in control of the company would undermine the duty in the very circumstances in which it is required [129 130]. Lord Sumption, by contrast, regards the defence of illegality as a rule of law, independent of any judicial value judgment about the balance of the equities in each case [62]. Lord Sumption expressly disagrees with the statutory policy argument put forward by Lord Toulson and Lord Hodge. Does Section 213 of the Insolvency Act 1986 have extra territorial effect? The Supreme Court unanimously holds that section 213 does have extra territorial effect. Section 213 provides a remedy against any person who has knowingly become a party to the carrying on of that companys business with a fraudulent purpose. The provision is directed against (a) parties to a fraud and (b) persons involved in the carrying on of the now insolvent companys business. The context of section 213 is the winding up of a company registered in Great Britain; however, the effect of such a winding up order is worldwide. It would seriously handicap the efficient winding up of a British company in an increasingly globalised economy if the jurisdiction of the court responsible for the winding up of an insolvent company did not extend to people and corporate bodies resident overseas who had been involved in the carrying on of the companys business [108, 213]. Moreover Section 238, a provision in similar terms to section 213, has previously been held by the Court of Appeal to apply without territorial limitations [110, 214].
These appeals concern the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points based system of immigration control. Tier 4 deals with the grant of leave to enter or remain in the United Kingdom to migrants to the UK from outside the European Economic Area for the purpose of study. The essential requirement of the Tier 4 scheme was that the migrant should have been sponsored by an educational institution holding a sponsors licence. This requirement was laid down in Part 6A of the Immigration Rules, which dealt with the requirements to be satisfied by migrants applying for leave to enter or remain for the purpose of study. The criteria for licensing sponsors and the duties of sponsors once licensed were not prescribed in the Immigration Rules, but only in the Tier 4 Sponsor Guidance issued by the Secretary of State. Section 3(2) of the Immigration Act 1971 (the Act) provides that the Secretary of State shall lay before Parliament rules as to the practice to be followed in regulating the entry and stay in the UK of persons required under the Act to have leave to enter. Part 6A of the Immigration Rules was laid before Parliament under section 3(2) of the Act, but the Sponsor Guidance was not. New College London was a licensed Tier 4 sponsor until December 2009 when its licence was suspended by the Secretary of State on the ground that it was in breach of its duties as sponsor as set out in the Sponsor Guidance. Its licence was subsequently revoked. West London Vocational Training College applied for Highly Trusted Sponsor status in accordance with the Sponsor Guidance and was refused in August 2012. The effect of that refusal under the terms of the then current Sponsor Guidance was that it could not be a licensed Tier 4 sponsor. Both applicants sought to challenge these decisions by way of judicial review. Both failed in the High Court and in the Court of Appeal. Their case was that, so far as the Sponsor Guidance contained mandatory requirements for sponsors, it had to be laid before Parliament, and that in making decisions by reference to it without having done this, the Secretary of State acted unlawfully. The Supreme Court unanimously dismisses the appeals. Lord Sumption (with whom Lords Hope, Clarke and Reed agree) gives the lead judgment. Lord Carnwath adds a concurring judgment agreeing with the result but differing as to some of the reasoning. The criteria for sponsor licensing contained in the Sponsor Guidance were properly to be described as rules, but they were not required to be laid before Parliament under section 3(2) of the Act because that requirement related only to rules regulating the grant of leave to enter or remain in the UK have to be satisfied by the migrant. The Guidance is directed only to the licensing of sponsoring institutions [23, 26]. If the provisions of the Act do not apply, it does not follow that there is no power to have such a system at all [23, 27]. The statutory power of the Secretary of State to administer the system of immigration control must necessarily extend to a range of ancillary and incidental administrative powers not expressly spelt out in the Act, including the vetting of sponsors [28]. The Act does not prescribe the method of immigration control to be adopted. It cannot have been Parliaments intention that the Secretary of State should be limited to those methods of immigration control which required no other administrative measures apart from the grant or refusal of leave to enter or remain in the UK. Since the Secretary of State is entitled to prescribe and lay before Parliament rules for grant of leave to enter or remain in the UK which depend upon the migrant having a suitable sponsor, then she must also be entitled to take administrative measure for identifying sponsors who are and remain suitable, even if these measures do not themselves fall within section 3(2) of the Act [29]. This right is not unlimited: the Secretary of State cannot adopt measures which are inconsistent with the Act or Immigration Rules or adopt measures which are coercive, infringe legal rights or contravene the general constraints on administrative action imposed by public law. However, the Tier 4 sponsor system was not coercive but voluntary. The rules contained in the Sponsor Guidance were, in reality, conditions of participation and sponsors seeking the advantages of licences could not complaint if they were required to adhere to them. [CA29] Lord Carnwath agreed with the result, but held that the sponsor licensing scheme was an adjunct, not of the immigrant control system in general, but of the specific function of providing entry under section 1(4) of the Act. This provides for the admission of persons not having the right of abode for the purpose of study subject to such restrictions as may be provided by the rules. This leads back to section 3(2) of the Act which prescribes the procedure for making the rules [37]. Lord Carnwath differed as to the practical effect of the decision in respect to New College. The decision did not confer a status which they did not have but revoked an existing licensing, and an order setting aside that decision would have left the existing licence in place. No party had sought to challenge the validity of that original licence [44 6].
This appeal concerns a challenge to the sale by an insolvent Scottish company, Grampian MacLennans Distribution Services Ltd (Grampian), of its principal asset and place of business (the Property) at a value lower than could have been achieved on the open market. The parties dispute the proper interpretation of adequate consideration in section 242(4)(b) of the Insolvency Act 1986 (the 1986 Act) and whether the court has any discretion as to the remedy it may give under that section. In March 2013, chartered surveyors valued the Property at 1.2m on the open market and at 800,000 on a restricted marketing period of 180 days. The following year, Grampian fell into financial difficulty and was sold to Mr Quinn. At this time, Grampian owed more than 500,000 to each of National Westminster Bank plc (NatWest), which held a standard security over the Property, and HM Revenue and Customs (HMRC). Shortly after Mr Quinns takeover, Grampians cash flow collapsed and its monthly loan repayments to NatWest fell into arrears. Mr Quinn sold off Grampians trucks and entered into discussions to sell the Property with a businessman he had known for over 30 years, Mr Gaffney. Mr Gaffney negotiated on behalf of his family company, Carnbroe Estates Ltd (Carnbroe), to acquire the Property at a reduced price, citing the risk of repossession by NatWest and the fact that the buildings needed repairs and refurbishment. Mr Quinn and Mr Gaffney eventually agreed that Carnbroe would buy the Property for 550,000 in a quick, off market sale. Grampian transferred the Property to Carnbroe on 24 July 2014. However, instead of paying the agreed consideration to Grampian, Carnbroe repaid the NatWest loan directly to obtain a discharge of the standard security. Carnbroe then obtained a loan from the Bank of Scotland plc, which was secured against the Property. The sale of the Property and repayment of NatWests loan left Grampians other principal creditor, HMRC, unpaid. HMRC wrote to Grampian requiring payment of tax that was due. On Grampians failure to pay, HMRC presented a petition for winding up Grampian. The Respondents (Mr MacDonald and Ms Coyne) were appointed as joint liquidators of Grampian and commenced proceedings to challenge the sale. At first instance, the Lord Ordinary held that the sale of the Property was made for adequate consideration. However, on appeal, the Inner House (the Lord President, Lord Drummond Young and Lord Malcolm) reduced (annulled) the transaction and ordered Carnbroe to transfer the property to the Respondents. Carnbroe appealed to the Supreme Court. The Supreme Court unanimously allows the appeal only to the extent of remitting the case to the First Division of the Inner House to consider what is the appropriate remedy under section 242(4) of the 1986 Act. Lord Hodge gives the sole judgment with which the other Justices agree. The Supreme Court holds that the meaning of adequate consideration is to be determined according to an objective test, having regard to the commercial justification of the transaction in all the circumstances and assuming that the parties would be acting in good faith and at arms length [30 32]. As to the circumstances that would be relevant to this assessment, the Court considers that, unless the insolvent partys financial embarrassment is known in the relevant market, the hypothetical purchaser will not be assumed to have knowledge of it [32]. Accordingly, it is not relevant that Mr Quinn advised Mr Gaffney of Grampians financial difficulties. However, the fact of Grampians insolvency is, itself, a relevant circumstance, in that an insolvent vendor would be expected to manage its assets in such a way as to protect the interests of its creditors [33]. The objective purpose of the sale is also a relevant circumstance. Whilst an off market sale poses the obvious risk of obtaining an inadequate price, the Court recognises that a quick sale may sometimes be in the interest of the creditors, such as when the insolvent party faces liquidity issues and the sale would enable it to trade out of insolvency [34]. Where there is no prospect that the sale would enable the insolvent company to remain in business, the adequacy of the consideration will depend on whether there is prejudice to the insolvent companys creditors [37]. This involves comparing the outcomes which would have been available in the circumstances of the insolvency. In cases where a full marketing exercise would not have been possible, or where the asset was being sold as part of an informal winding up, the consideration achieved in the sale should not be measured against the open market price but against the price, net of expenses, that would have been obtained by a liquidator of the company, or else by the holder of any security over the asset, assuming their compliance with applicable legal duties [37 39]. In the present case, the sale of the Property was part of an informal winding up of Grampian. As such, the Court considers that there could be no justification for an off market sale at a price so far below market value on the ground of urgency [40]. Carnbroe has not established that there was adequate consideration as it has not led any evidence to support the view that a sale by NatWest (as the holder of a standard security over the Property), or else by the liquidators, would have been likely to achieve a comparable or lower net price than that which Grampian accepted [42]. As such, the Inner House was entitled to interfere with the Lord Ordinarys assessment of the adequacy of the consideration. As to the appropriate remedy, the liquidators argue that section 242(4) of the 1986 Act requires the courts to annul any transaction with an insolvent company for less than adequate consideration, save where such annulment is impossible. However, the Supreme Court considers that such a rule could produce harsh and disproportionate effects, since section 242(b) would capture sales to good faith, arms length purchasers for substantial (if not adequate) consideration [45]. If such a transaction were reversed, the good faith purchaser would be forced to compete as an unsecured creditor to recover the consideration it had paid, with the insolvent vendors general creditors receiving a windfall [51]. In a departure from previous decisions of the Inner House, the Supreme Court concludes that the statutory words of section 242(4) are broad enough to allow the courts, in appropriate cases, to devise a remedy to protect the good faith purchaser [53, 63, 65]. In the absence of agreed facts as to the impact of reversing the present transaction, the Court remits the case to the Inner House to determine whether it is appropriate to qualify the remedy it has given to take account of all or part of the consideration paid by Carnbroe for the purchase [69].
This appeal concerns whether the First tier Tribunal (Ft T) was entitled to make an order debarring the Commissioners for HM Revenue and Customs (HMRC) from defending an appeal concerning liability for VAT brought by three companies in the BPP Group of companies (BPP). Between 1999 and 2006, BPP Holdings Ltd supplied education and books to students. Following a corporate rearrangement in 2006, one company, BPP Learning Media Ltd, supplied books and another, BPP University College of Professional Studies Ltd, supplied education. BPP considered that this involved separate supplies by separate companies, one of education (which is standard rated for VAT purposes) and the other of books (which is zero rated). Accordingly, BPP did not account for VAT on the supplies of books. In November 2012, HMRC issued two VAT assessments, prepared on the basis that BPP should have accounted for VAT at the standard rate on the supplies of books from 2006. HMRC also issued a decision to that effect in December 2012. In May 2013, BPP appealed against the two assessments and the decision to the Tax Chamber of the Ft T. HMRC served its statement of case on 21st October 2013, 14 days late, and subsequently provided disclosure, which was also late. On 11th November 2013, BPP requested that HMRC provide further information of their case, and subsequently applied to the Ft T for an order that HMRC supply the information within 14 days of making the order, failing which BPPs substantive appeals should be allowed. On 9th January 2014, Judge Hellier made an order in terms that: if the respondents fail to provide replies to each of the questions identified in the appellants request for Further Information by 31st January 2014, the respondents may be barred from taking further part in the proceedings. On 31st January 2014, HMRC served a response to BPPs request. On 14th March, BPP issued an application for an order barring HMRC from taking further part in the proceedings (a debarring order) as the response did not reply to each of the questions identified in [BPPs] request for further information. HMRC have since withdrawn the two assessments and conceded those appeals, but BPPs third appeal against HMRCs decision has proceeded. Meanwhile, HMRC supplied a defective disclosure statement and list of documents some eight days late on 8th May, and did not apply for an extension of time until four weeks later. BPP maintained its claim for a debarring order in the surviving appeal. On 23rd June 2014, Judge Mosedale granted BPPs application and made a debarring order. On 25 September 2014, Judge Herrington refused HMRCs application to lift the debarring order but gave HMRC permission to appeal against Judge Mosedales decision. Judge Bishopp in the Tax and Chancery Chamber of the Upper Tribunal (UT) allowed HMRCs appeal on 3rd October 2014. The Court of Appeal (Moore Bick V P, Richards and Ryder LJJ) allowed BPPs appeal and restored Judge Mosedales debarring order for reasons given by Ryder LJ. The Supreme Court unanimously dismisses the appeal, but does not approve all the reasoning of the Court of Appeal. It would be appropriate for an appellate court to interfere with Judge Mosedales full and carefully considered judgment if it could be shown that irrelevant material was taken in to account, relevant material was ignored (unless the appellate court was satisfied that this made no difference), or the decision was one which no reasonable tribunal court have reached [21]. The order made by Judge Hellier reflects the terms of rule 8(3)(a) of Rule 8 of the Tribunal Procedure (First tier Tribunal) (Tax Chamber) Rules 2009 (SI 2009/273), which provides that: the Tribunal may strike out the whole or a part of the proceedings if (a) the appellant has failed to comply with a direction which stated that a failure by the appellant to comply with the direction could lead to the striking out of the proceedings or part of them [10 11]. Judge Mosedale had correctly approached the issue on the basis that the order reflected rule 8(3), rather than rule 8(1) as HMRC had contended [22]. Case law concerning time limits and sanctions relevant to the Civil Procedure Rules does not apply directly to the tribunals: the jurisdiction of many of the tribunals extends to the whole of the United Kingdom rather than being limited to England and Wales, and they have different rules from the courts and sometimes require a different approach to a particular procedural issue. However, in general, a similar approach should be followed [23 26]. Judge Mosedale had made clear that her consideration of the Civil Procedure Rules and related authorities was limited to whether the guidance contained in them was relevant by analogy to the application of the overriding objective in the Tax Tribunal rules. She had distinguished the guidance before applying a nuanced version of it [26 27]. Further, in considering the reasoning in Mitchell v Newsgroup Limited [2014] 1 WLR 795, Judge Mosedale had correctly considered that whilst the case was not strictly relevant, it contained some useful guidance when considering the overriding objective of dealing with cases fairly and justly [28], [15]. There is no basis for concluding that she had misunderstood the guidance given in Mitchell, nor that any developments in the subsequent case of Denton v TH White Ltd [2014] 1 WLR 3926 justified upsetting her decision [28]. In reaching her conclusion, Judge Mosedale had carefully considered all the relevant factors, including the disadvantage to HMRC and the arguably disproportionate benefit to BPP [29], [12 20]. The fact that HMRC was discharging a public duty in this case did not justify the application of a special rule or approach [30]. It was not disproportionate for BPP to have sought a debarring order rather than proceeding to a hearing [31]. The argument that the result of the debarring order would result in an unjustified windfall for BPP by improving its prospects of success in the substantive appeal could be made by any party facing a debarring order, and would, if accepted, save in exceptional circumstances, undermine the utility of the sanction of a debarring order [32]. The decision to make a debarring order against HMRC was tough and some Ft T judges may not have made it. However, HMRC cannot cross the high hurdle of demonstrating that the decision was unjustifiable, given the combination of the nature and extent of HMRCs failure to reply to BPPs request, the length of the delay in rectifying the failure and the length of the consequential delay to the proceedings, the absence of any remedy to compensate BPP for the delay and the absence of any explanation or excuse for the failure, coupled with the existence of other failures by HMRC to comply with directions [33 34].
This appeal arises out of applications by the Financial Services Authority for orders to wind up the appellants in the public interest under s.367(1)(c) of the Financial Services and Markets Act 2000 (FSMA), on the ground that each of them is carrying on or has carried on a regulated activity in contravention of the general prohibition. The general prohibition is that at s.19 of FSMA, which provides that no person may carry on a regulated activity unless he is either an authorised or exempt person. Regulated activities include a wide range of general insurance business, including effecting or carrying out any of the 18 classes of contracts of general insurance listed in Schedule 1, Part I to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001. Class 16 is the class most relevant to the present appeal (Miscellaneous Financial Loss). This includes contracts insuring against risk of loss to the insured attributable to their incurring unforeseen expense, as well as any other kind of risk (not covered by other provisions). The classes substantially replicate the classes in the Annex to the First Council Non Life Insurance Directive 73/239/EEC as amended by Council Directive 84/641/EEC (the First Directive). The appellants sold and performed extended warranty contracts under which, in consideration of a periodic payment, they contracted to repair or replace satellite television dishes, satellite boxes and associated equipment. It was agreed that the contracts were contracts of insurance and that the appellants were not authorised under FSMA to carry on any kind of insurance business. Nonetheless, the appellants case is that the contracts were not of a kind which required their business to be authorised under FSMA because the classes of regulated activities did not extend to contracts which only provided benefits in kind, i.e. repair services and replacement goods. Warren J [2011] Bus LR 981 rejected this argument and ordered the appellants to be wound up, and the Court of Appeal dismissed their appeal. The Supreme Court unanimously dismisses the appeal. Lord Sumption gives the judgment of the Court. The appellants case depends on the proposition that in specifying certain categories of direct non life insurance business which member states must regulate in accordance with EC law, the First Directive precluded member states from regulating further or wider categories under their national law. However, the Court concludes that the First Directive is concerned only to prescribe what kinds of business national law must regulate and not what other kinds of business it may regulate. Even if Classes 1 to 17 in the First Directive are confined to insurance providing pecuniary benefit, there is nothing to prevent the UK from legislating to regulate insurance of those descriptions irrespective of whether they provide benefits in cash or kind or both [4]. The First Directive was never intended to impose a comprehensive scheme of authorisation. Nor can the 18 classes of business listed in the Annex to the First Directive have been intended to limit the freedom of member states to regulate in other categories of business [12]. The partial character of the scheme of authorisation in the First Directive is recognised by the recitals. These show that it was appreciated that significant differences between national schemes of authorisation would persist, and that these would continue to operate as partial barriers to the exercise of the right of establishment. The object of the First Directive as a whole is to impose certain uniform principles of regulation on insurance businesses in the standard classes, but not on any falling outside those classes. This is why Article 1 to the First Directive is concerned with the conduct of businesses in the classes of insurances defined in the Annex to this Directive [13]. Member states deal with each others authorisations by reference to the standard classes in the First Directive. As far as they are concerned, any difference between the content of those classes and that of the corresponding categories of business in national law is irrelevant [14]. If the First Directive could be read so as to preclude national regulation of insurance not within the First Directive, it would allow it to be carried on without any regulatory protection for consumers [15]. The Court agrees with the decision of the courts below that, on the facts, the appellants businesses fell within the risks identified in Class 16 [16, 19]. A contract which brings about the result an insured would otherwise have to pay to achieve (i.e. having functioning equipment) was a contract that protects him from financial loss irrespective of whether the insurer or the insured is obliged to pay in the first instance [18]. The only argument against this could be that the common law position (that insurance contracts are payments of sums of money or some corresponding benefit) is displaced by the requirement to construe domestic legislation so as to conform to EU law. However, there is no prohibition in the First Directive against regulating any insurance business falling outside the 18 classes in the Annex. Nor does the Directive throw any light on the meaning of the language of Class 16 (Miscellaneous Financial Loss) which was derived, not from the First Directive, but from the statutory definition of business covered by the previous, wholly domestic, scheme of statutory regulation [19 21].
These proceedings relate to applications made by two foreign nationals, Ms Agyarko and Ms Ikuga, residing unlawfully in the UK, for leave to remain in the UK as partners of British citizens with whom they have formed relationships during the period of their unlawful residence. The Secretary of States decision in each case was that the applicant did not qualify for leave to remain under Immigration Rules (the Rules). Paragraph EX.1(b) of Appendix FM of the Rules required applicants to have a genuine subsisting relationship with a partner who is in the UK and is a British citizen, and for there to be insurmountable obstacles to family life with that partner continuing outside the UK. The Secretary of State found that no evidence had been provided of insurmountable obstacles in either case, and that in the case of Ms Ikuga she had not provided evidence of a shared address in order to show she that had a partner within the meaning of the Rules. The Immigration Directorate Instructions (the Instructions) state that where an applicant does not meet the requirement of the Rules, leave can be granted outside the Rules where exceptional circumstances apply, in order to ensure compatibility with the applicants rights under article 8 of the European Convention on Human Rights. The Secretary of State found that there were no exceptional circumstances in the case of either applicant to warrant consideration of a grant of leave outside the Rules. Both Ms Agyarko and Ms Ikuga sought permission to apply for judicial review of the Secretary of States decisions. In each case permission was refused by the Upper Tribunal, and the Court of Appeal upheld that refusal. The Supreme Court unanimously dismisses the appeals. Lord Reed gives the judgment, with which the rest of the Court agrees. The Secretary of States decisions on the facts were lawful. The ultimate question in article 8 cases is whether a fair balance has been struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions do not depart from that position, and are compatible with article 8. It is within the margin of appreciation for the Secretary of State to adopt policies which set out the weight to be attached to the competing considerations in striking a fair balance, including that family life established while the applicants stay in the UK is known to be unlawful or precarious should be given less weight, when balanced against the factors weighing in favour of removal, than family life formed by a person lawfully present in the UK [46 53]. Although the requirement of insurmountable obstacles to a continuing relationship is a stringent test to be met, rather than one relevant factor to be taken in account, this does not make it incompatible with article 8. The phrase insurmountable obstacles was not defined by the Rules when the present cases were considered, but it is reasonable to infer that it was intended to have the same meaning as in the jurisprudence of the European Court of Human Rights. It imposed a stringent test and was to be interpreted in a sensible and practical way rather than as referring solely to obstacles which make it literally impossible for the family to live together in the applicants country of origin. This is consistent with the guidance on assessing insurmountable obstacles contained in the Instructions, and the definition of that phrase introduced subsequently in the Rules, effective from 28 July 2014 [42 48]. The exceptional circumstances question is also one that the Secretary of State may legitimately ask. Appendix FM is said to reflect how the balance will be struck under article 8 between the right to respect for private and family life, and the legitimate aims listed in article 8(2), so that if an applicant fails to meet the requirements of the Rules it should only be in genuinely exceptional circumstances that refusing them leave and removing them from the UK would breach article 8. The Instructions state that exceptional does not mean unusual or unique, but means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. This is an application of a test of proportionality, consistent with the references to exceptional circumstances in European case law and cannot be regarded as incompatible with article 8 [54 60]. On the facts of each case, there was no basis to challenge the conclusions of the Upper Tribunal judge, that no evidence was placed before the Secretary of State from which the conclusion could be reached that there were insurmountable obstacles to each applicants relationship continuing in their countries of origin. Although in the case of Ms Ikuga the case was considered on an erroneous basis of fact that she was not in a genuine relationship, the insurmountable obstacles test was bound to fail in any event. Further, neither applicant had put forward anything which might constitute exceptional circumstances as defined in the Instructions. There was also an argument, advanced for the first time on appeal, that refusal of leave to remain served no good purpose because the applicants were otherwise certain to be granted leave to enter if the application was made from outside the UK. There was nothing to suggest that this would be the case for either appellant. [69 74]. The effect of refusal of leave in the applicants cases was not a breach of EU law. The Secretary of States decisions in these cases did not compel an EU citizen to reside outside the EU. These cases fell outside the situations of dependency to which the Zambrano principle of EU law applies [61 68].
The Rugby Football Union (RFU) is the governing body for Rugby Union in England. It also owns the Twickenham stadium and alone is responsible for issuing tickets for all international and other matches played at the stadium. It is the RFUs deliberate policy to allocate tickets so as to develop the sport of rugby and enhance its popularity. Most tickets are distributed via affiliated rugby clubs, referee societies, schools and other bodies. The distribution thereafter is subject to different rules depending on the nature of the body in question. Member clubs are permitted to sell some or all of their ticket allocation (up to a combined maximum of 4,837 tickets per match across all member clubs) to official licensed operators for use in corporate hospitality packages. The RFUs terms and conditions stipulate that any resale of a ticket or any advertisement of a ticket for sale at above face value will constitute a breach of contract rendering the ticket null and void. This condition is printed on the tickets and applicants are warned of it on ticket application forms. A further term stipulates that the tickets are property of the RFU at all times. Viagogo (now in liquidation) operated a website which provided the opportunity for visitors to the site to buy tickets online for a number of sporting and other events. Sellers would register their tickets with Viagogo and a price would be suggested based on current market data. Viagogo received a percentage of the sale. The RFU monitors ticket re sale websites in an attempt to discover whether and by whom tickets were being sold above face value. This effort was frustrated, however, in many instances by the anonymity offered by websites including Viagogo. In the run up to the international rugby matches in autumn 2010 and the six nations tournament, the RFU discovered that Viagogo had been used to advertise thousands of tickets for the matches at Twickenham. Tickets with a face value of 20 to 55 were being advertised for sale at up to 1300. After a request for information about the identity of those selling the tickets was refused, the RFU issued proceedings against Viagogo seeking information which it required in order to take action to protect its policy in relation to tickets. The High Court granted the RFU a Norwich Pharmacal order requiring Viagogo to disclose the identities of those involved in the sales. The order was made on the grounds that the RFU had a good arguable case that those selling and purchasing the tickets had been guilty of breach of contract and that it was appropriate to grant the order for them to obtain redress. Before the Court of Appeal, Viagogo introduced a new ground of appeal to the effect that granting the order represented a disproportionate interference with the rights of the potential wrongdoers under article 8 of the Charter of Fundamental Rights of the European Union. Article 8 guarantees the protection of personal data. The Court of Appeal upheld the decision of the High Court and decided that the RFU had no readily alternative means of pursuing the wrongdoers. On the new ground the Court of Appeal held that interference with the personal data rights of the individuals was proportionate in light of the RFUs legitimate objective in obtaining redress for arguable wrongs. The issue before the Supreme Court was whether the grant of the order involved a breach of article 8 of the Charter. The Supreme Court unanimously dismisses the appeal. Lord Kerr gives the judgment of the court. Lord Kerr considered the principles involved when making a Norwich Pharmacal order [14 18]. The need for an order for disclosure will only be found to exist if it is necessary and proportionate in all the circumstances [16]. The essential purpose of an order was to do justice in the case. This involved a careful weighing of all the relevant factors including the strength of the cause of action, whether those who have committed the alleged wrong knew or would have been likely to know that what they were doing was unlawful and the privacy rights of those whose identities were to be revealed [16 17]. Many of the factors involved in deciding whether to make a Norwich Pharmacal order are relevant to an assessment of whether disclosure is proportionate in the context of article 8 of the Charter [18]. Article 8 of the Charter was applicable as the order of the High Court involved disclosure of private data and thus was in the material scope of European Law [32]. Lord Kerr held that the appropriate test of proportionality under article 8 of the Charter involved weighing the benefit of the information being sought by the RFU against the impact that disclosure was likely to have on the individual concerned [33 36]. The appellant was wrong to suggest, however, that the assessment had to be carried out solely by reference to the particular benefit that obtaining information in relation to an individual might bring [36 37]. It was artificial and unrealistic to suggest that the RFUs aim of discouraging others in the future from flouting its rules should not be considered [37]. The facts of each case must be considered individually but there was nothing in the European cases cited or otherwise which supported the notion that the wider context for which the RFU wished to have the information should be left out of account.[40]. While there should be an intense focus on the rights claimed by the individuals concerned, this was not a case where disclosure would result in oppressive or unfair treatment. The only information sought was the names and addresses of individuals who had bought and sold tickets in clear breach of the RFUs ticket policy [43 45]. The particular circumstances affecting a person whose data were sought may in some limited cases displace the interests of the applicant for disclosure even where there was no feasible alternative way of getting the information. This was not such a case, however. [46].
The primary question in this appeal is when a person should be considered to be a de facto director of a company so that he can be held responsible for the payment of unlawful dividends as if he had been formally appointed as a director. When a company is wound up, section 212 of the Insolvency Act 1986, as amended, allows a creditor to request a court to compel an officer of the company to pay sums in respect of misuse of a power or breach of fiduciary duty. It was accepted that the definition of officer includes a director, whether he is formally appointed or not. Mr and Mrs Holland ran a business administering the business and tax affairs of contractors, especially those working in the IT sector, who did not want to go to the trouble of setting up and running their own companies. In February 1999 a complicated corporate structure was established to run the business. Under the new structure, 42 trading companies were created, referred to in these proceedings as the composite companies. Two further companies called Paycheck (Directors Services) Ltd and Paycheck (Secretarial Services) Ltd were created to act respectively as the sole director and secretary of each composite company. Mr and Mrs Holland were the directors of Paycheck Directors and Paycheck Services and owned each company via another company. The business model involved the composite companies contracting out the services of the contractors to their clients. The contractors became both employees and (non voting) shareholders of the composite companies. The aim of the structure was to seek to ensure that the annual taxable profits of each composite company did not exceed 300,000, in order to get the benefit of the small companies rate of corporation tax. From the income the composite companies received from the contractors clients, they paid a salary to each employee/shareholder and also declared dividends to each shareholder/employee (after making provision for the payment of corporation tax at the small companies rate). Dividends were paid regularly on the basis of timesheets submitted by shareholders/ employees for the work they performed as contractors. Paycheck Services used a software programme which calculated the dividends due and generated a document purporting to be a minute of a directors meeting of the relevant composite company. The programme generated onto the minute a copy of Mr Hollands signature authorising the dividend, beneath which appeared the words for and on behalf of Paycheck (Director Services) Ltd. Paycheck Services received a fee for its administrative services. No allegation was made that this structure was a sham and there was never any pleading of dishonesty against Mr or Mrs Holland. However, HMRC did challenge the structure. The structure failed because Mr Holland was the settlor of the one voting share in each composite company, with the result that the composite companies were treated as associated for tax purposes thus exceeding the 300,000 threshold. The resultant increased tax liability meant that the composite companies were insolvent, with HMRC being the only creditor. HMRC alleged that Mr and Mrs Holland were de facto directors of the insolvent companies and responsible under section 212 for causing the payment of dividends to the companies shareholders (the contractors) when the companies had insufficient distributable reserves. HMRC sought orders requiring Mr and Mrs Holland to pay amounts in excess of 13m to compensate the insolvent companies. The High Court dismissed the claims against Mrs Holland and that decision was not appealed. However, the High Court held that Mr Holland was a de facto director of each composite company and so in principle answerable to HMRCs claims. The Court of Appeal unanimously allowed Mr Hollands appeal and held that he was not a de facto director of the composite companies. The Supreme Court (by a majority of 3 to 2) dismisses the appeal. Lords Hope, Collins and Saville gave the majority judgments. Lords Walker and Clarke gave dissenting judgments. Lord Hope considered that the question of whether Mr Holland was acting as a de facto director of the composite companies must be approached on the basis that Paycheck Directors (the sole corporate director of each of the composite companies) and Mr Holland were in law separate persons, each with their own separate legal personality: [25]. The mere fact of acting as a director of a corporate director will not be enough for an individual to become a de facto director of the subject company: [29]. One must look at what a person actually did to see whether he assumed the responsibilities of the office of director: [39]. Everything Mr Holland did was under the umbrella of being the director of a sole corporate director: [40]. Until Parliament provides otherwise, if acts are entirely within the ambit of the duties and responsibilities of a director of the corporate director, it is to that capacity that acts are attributed: [42]. Lord Collins agreed with Lord Hope. Lord Collins held that whether a person is a de facto director is not simply a question of fact: the question was whether all of his acts can be attributed in law solely to the activities of the corporate director: [95]. It did not follow from the fact that Mr Holland took all the relevant decisions that he was a de facto director of the composite companies; if that were so, the guiding mind of every sole corporate director would find themselves the de facto director of another company: [96]. The basis of liability for a de facto director is an assumption of responsibility and being part of the governing structure. Parliament has already intervened in the Companies Act 2006 to ensure that there is a natural person to whom responsibility is attributed. The further extension of the concept of de facto director contended for by HMRC is a matter for the legislature and not for the Supreme Court: [96] Lord Saville agreed with Lord Hope and Lord Collins. Lord Walker considered that if a person takes all the important decisions affecting a company and sees that they are carried out, then he is acting as a director of that company. Lord Walker considered that to attribute acts on the basis of capacity in a corporate structure was the most arid formalism: [115]. Lord Clarke agreed with Lord Walker and held that capacity should be irrelevant to the question of whether an individual is a de facto director: [132]. Lord Clarke thought it artificial and wrong to hold that Mr Holland was doing no more than merely discharging his duties as a de jure director of Paycheck Directors: [142].
On or about 1 April 2010 the appellant and her husband (Mr and Mrs X) entered into a contract with the respondent tour operator (Kuoni) under which Kuoni agreed to provide a package holiday in Sri Lanka. In the early hours of 17 July 2010, the appellant was making her way through the grounds of the hotel to the reception. She came upon a hotel employee, N, who was employed by the hotel as an electrician and (on the facts found by the judge) known to her as such. N was on duty and wearing the uniform of a member of the maintenance staff. N offered to show her a shortcut to reception, an offer which she accepted. N lured her into the engineering room where he raped and assaulted her. In these proceedings Mrs X claims damages against Kuoni by reason of the rape and the assault. The claim is brought for breach of contract and/or under the Package Travel, Package Holidays and Package Tours Regulations 1992 (the 1992 Regulations) which implement in the United Kingdom Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (the Directive). In the High Court, HHJ McKenna concluded that the contractual undertaking that holiday arrangements would be of a reasonable standard did not include a member of the maintenance team conducting a guest to reception. He further held that Kuoni would in any event have been able to rely on the statutory defence under regulation 15(2)(c)(ii) because the assault was an event which could not have been foreseen or forestalled (by inference by the hotel) even with all due care. The Court of Appeal (Sir Terence Etherton MR, Longmore and Asplin LJJ) dismissed the appeal by a majority (Longmore LJ dissenting). In a joint judgment, the majority held that the holiday arrangements did not include N conducting Mrs X to reception. The majority further held that Kuoni was not liable under either the express terms of clause 5.10(b) or regulation 15 since N was not a supplier within the meaning of those provisions. On appeal to the Supreme Court there were two main issues: (1) Did the rape and assault of Mrs X constitute improper performance of the obligations of Kuoni under the contract? (2) If so, is any liability of Kuoni in respect of Ns conduct excluded by clause 5.10(b) of the contract and/or regulation 15(2)(c) of the 1992 Regulations? The Supreme Court unanimously decides to refer two questions to the Court of Justice of the European Union. The terms of the reference are set out by Lord Lloyd Jones. For the purposes of this reference, the Court of Justice of the European Union is asked to assume that guidance by a member of the hotels staff of Mrs X to the reception was a service within the holiday arrangements which Kuoni had contracted to provide and that the rape and assault constituted improper performance of the contract [22]. In order to determine this appeal, specifically in relation to the second issue identified above, the Supreme Court refers the following questions to the Court of Justice of the European Union [23]: (1) Where there has been a failure to perform or an improper performance of the obligations arising under the contract of an organizer or retailer with a consumer to provide a package holiday to which the Directive applies, and that failure to perform or improper performance is the result of the actions of an employee of a hotel company which is a provider of services to which that contract relates: (a) is there scope for the application of the defence set out in the second part of the third alinea to article 5(2); and, if so, (b) by which criteria is the national court to assess whether that defence applies? (2) Where an organizer or retailer enters into a contract with a consumer to provide a package holiday to which the Directive applies, and where a hotel company provides services to which that contract relates, is an employee of that hotel company himself to be considered a supplier of services for the purposes of the defence under article 5(2), third alinea of the Directive?
This case concerns the scope of indirect discrimination on the ground of age. It was heard alongside the case of Seldon v Clarkson Wright and Jakes [2012] UKSC 16 which concerned the scope for justification of direct discrimination on the ground of age. Mr Homer began working for the Police National Legal Database (PNLD) as a legal advisor in 1995 at the age of 51. When he was appointed the role did not require a law degree or equivalent if the post holder had exceptional experience or skills in criminal law combined with a lesser qualification in law. Mr Homer fell within this latter category. PNLD began to experience problems in attracting suitable people for the role of legal advisor. In 2005 the organisation introduced a new grading structure to improve career progression and offer more competitive salaries. The new structure provided for three promotion thresholds above the starting grade, the third and final of which requiring a law degree. In 2006 Mr Homer was graded under the new system as reaching the first and second thresholds but not the third. Because of his previous skills and experience he was, under the old grading structure, effectively at the top grade. In order to reach the third and highest threshold under the new structure Mr Homer would have been required to study for a law degree part time alongside his work. This would take four years to complete. At this time Mr Homer was 62 years old and, being due to retire at 65, would have been unable to reach or benefit from being at the third threshold before leaving the employment. His various internal appeals and grievances were dismissed and, in April 2007, he issued proceedings under the Employment Equality (Age) Regulations 2006, SI 2006/1031 (the Age Regulations) which came into force in October 2006. Regulation 7 of the Age Regulations (which have since been repealed but substantially re enacted under the Equality Act 2010) makes it unlawful for an employer to discriminate against employees such as Mr Homer in respect of, amongst other things, opportunities for promotion or receiving of other benefits. Regulation 3 provides that indirect discrimination occurs when a person (A) applies to another person (B) a provision, criterion or practice which he applies to persons not of the same age group as B, but which puts persons of the same age group as B at a particular disadvantage when compared with other persons, and which puts B at that disadvantage and A cannot show the . provision, criterion or practice to be a proportionate means of achieving a legitimate aim. In contrast to the Seldon case, it was accepted that regulation 3 had properly transposed article 2(2)(b) of Council Directive 2000/78/EC on equal treatment in employment and occupation into UK law in cases of indirect age discrimination. In January 2008 the Employment Tribunal found that the appropriate age group was employees aged between 60 and 65 as these persons would have been unable to obtain any real benefit from obtaining a law degree before retiring. It went on to hold that Mr Homer had been indirectly discriminated against on the ground of age and that this was not objectively justifiable on the facts. The Employment Appeal Tribunal held that there had been no indirect discrimination, but that if there had been then it would not be objectively justified. The Court of Appeal dismissed Mr Homers appeal against the first finding, and dismissed the Respondents cross appeal against the second finding. Both findings were then appealed to the Supreme Court. The Supreme Court unanimously allows Mr Homers appeal on the first issue, finding that he was indirectly discriminated against by the Respondent. The Court remits the case to the Employment Tribunal to reconsider the issue of justification. Lady Hale gives the lead judgment with which all other members of the Court agree. Lord Hope and Lord Mance add some comments of their own. The Employment Appeal Tribunal and the Court of Appeal had been persuaded by the argument that Mr Homer was put at a disadvantage, not by his age but by his impending retirement [12]. It was accepted that his retirement was what prevented him from gaining any real benefit from acquiring a law degree. What put B at a particular disadvantage was not his age as such but the fact that he was due to leave employment within four years, his position being comparable with any other employees nearing the end of their employment for whatever reason. The Supreme Court disagrees with that analysis. Its flaw is to ignore the fact that persons in the position of Mr Homer were disadvantaged because of a reason (retirement) that directly related to their age. Persons similarly disadvantaged for reasons not related to their age would not fall within the scope of the Age Regulations and were not the intended recipients of its protection [13]. The form of words used under the Age Regulations was intended to make it more straightforward to establish claims of indirect discrimination with claimants simply having to establish that they in particular, and persons of their age group in general, were, in fact, disadvantaged when compared with other persons [14]. In any event, there are material differences between leaving work because of impending retirement and other reasons for doing so [15]. The law on indirect discrimination is an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic. [17]. As to justification, the issue is to be remitted to the Employment Tribunal for consideration in the light of the Supreme Courts findings. The range of aims capable of justifying indirect discrimination is greater that those available in the context of direct discrimination (see Seldon v Clarkson Wright and Jakes [2012] UKSC 16) [19]. In particular, a real business need on the part of the employer alone may be sufficient. In addition to pursuing a legitimate aim, the treatment must be proportionate which means it is both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so. [22]. It is the criterion itself that must be justified as opposed to its discriminatory effects on the individual [23]; however part of that assessment includes comparing the likely impact of the criterion on the affected group as against the importance of the aim to the employer [24]. It is noted that Mr Homer was not dismissed or downgraded for not having a law degree, but was simply denied the additional benefits attaching to the newly introduced third threshold. The question was whether it was reasonably necessary in order to achieve the legitimate aims of the scheme to deny those benefits to people in his position [24]. It was not clear whether the Employment Tribunal had been suggesting a specific exception for Mr Homer alone: that was not an appropriate response to a discrimination claim. There has to be some way of modifying the criterion for everyone adversely affected but without introducing discrimination against another group [16, 25]. Lord Hope addresses the argument made that exempting Mr Homer from the third threshold requirements would unfairly advantage persons of Mr Homers age group. He does not accept that discrimination on grounds of age can be regarded as justified simply because eliminating it would put others at a disadvantage which is not related to their age [30]. Lord Mance however expresses some concern about the possibility of making an exemption for Mr Homer personally or for all those persons in the same age group as him, on the basis that it might unjustifiably discriminate against younger employees on the ground of their age [36].
On 6 September 2004 the Appellant, having been arrested the day before and taken to Perth police station, was driven by car to a police station in Glasgow by two officers of Strathclyde Police. He alleges that he was abused, threatened with violence and assaulted by the Strathclyde police officers before, during and after that journey. He applied for legal aid in order to take proceedings against the Chief Constable of Strathclyde Police (the Chief Constable). Strathclyde Police treated the intimation of the legal aid application in November 2004 as a complaint and remitted the matter to its Complaints and Discipline Branch (the Complaints Branch). The Complaints Branch reported receipt of the complaint to the Procurator Fiscal for Glasgow. In January 2005, the Procurator Fiscal instructed the Complaints Branch to carry out an investigation into the complaint. An officer of the Complaints Branch carried out the investigation and submitted his report to the Procurator Fiscal in March 2005. The Procurator Fiscal took a statement from the Appellant and considered the Complaints Branch report and a medical report submitted by the Appellant. On 6 June 2005, the Procurator Fiscal informed the Appellant that she was satisfied that the available evidence did not justify criminal proceedings against any police officer. The Complaints Branch then reviewed the complaint and informed the Appellant on 22 June 2005 that Strathclyde Police did not consider it necessary to take any proceedings for misconduct against the police officers. The Appellant raised an action in Glasgow Sheriff Court in August 2005. The first claim in the action was in relation to the alleged assault and was made against the Chief Constable. The Appellant sought damages at common law and under section 8(3) of the Human Rights Act 1998 for a breach of the substantive obligation under article 3 of the Convention (which prohibits torture and inhuman or degrading treatment or punishment). The second claim was in relation to an alleged failure to carry out an effective investigation into the Appellants complaint, in breach of the procedural obligation under article 3 of the Convention. The Appellant sought damages under section 8(3) of the Human Rights Act 1998 and section 100(3) of the Scotland Act 1998 against the Chief Constable and the Lord Advocate jointly and severally for this breach. The Chief Constable and the Lord Advocate argued that the Appellants second claim was irrelevant. After a debate, the Sheriff agreed. The Appellants appeal to the Sheriff Principal was unsuccessful. The Appellant then appealed to the Inner House of the Court of Session. At the start of the first day of a three day appeal hearing, the Court informed counsel that it seemed to it that there were fundamental questions about the competency of the action. The suggestion was that the second claim was distinct and separate and raised questions of administrative law that would require to be made the subject of judicial review in the Court of Session. Proceedings were adjourned until 2.00 pm that afternoon to allow counsel to consider this issue. Having heard argument on the point, it discharged the remainder of the hearing and took time to consider its judgment [1 5]. The Court then issued an opinion which dealt with the point raised at the appeal hearing and set out its reasons for holding on another ground, before hearing the parties on the point, that the action as a whole was incompetent. The parties were given an opportunity to make submissions at a procedural hearing, but no submissions were made. The Court then dismissed the action. The Appellant appealed to the Supreme Court. The issues in the appeal were: (1) whether it was competent for the Appellant to bring his two article 3 claims, or either of them, by way of action; and (2) whether it was competent for the Appellant to raise the first claim against the Chief Constable and the second claim against the Chief Constable and the Lord Advocate together in the same action [6, 7 10 and 12]. The Supreme Court unanimously allows the appeal. The Appellants action is competent. The case will be returned to the Inner House for a hearing of the appeal against the decision of the Sheriff Principal. The judgment is given by Lord Hope with whom all the other Justices agree. As the Court of Session is to a large extent the master of its own procedure, the Supreme Court will always be reluctant to interfere with the judgment of the Inner House on a question of competency unless the judgment is wrong in principle. Regrettably, however, that test is satisfied in this case [13]. The objections to the competency of the two article 3 claims are unsound in principle. The Appellant is not seeking an exercise of the supervisory jurisdiction of the Court of Session in order to have decisions of the Chief Constable or the Lord Advocate reviewed or set aside. His case in relation to both article 3 claims is based on allegations of acts or omissions. He is not seeking, and does not need, to have them corrected in order to provide a foundation for his claims. He seeks just satisfaction for the fact that, as he argues, his Convention rights have been breached. The claims are in essence simply those of damages. Judicial review for their determination would be inept [15 and 18 21]. The well established principle that one pursuer cannot sue two or more defenders for separate causes of action and conclude for a lump sum against them jointly and severally has not been breached in this case. It is clear that the wrongs which are the subject of the Appellants claims are separate and were committed at different times by different people. But the Appellant is not asking for a decree for the Respondents to be found liable in a single lump sum. The objection to the competency of the action on this basis is misconceived [22 and 24 25]. It is possible to imagine cases where an objection to competency could be taken on the ground that the pleadings defeat the ends of avoiding undue complexity and keeping good order in litigation. The guiding principle when such an objection is taken is whether the way the action is framed is likely to lead to manifest inconvenience and injustice. There is no absolute rule one way or the other, so long as the rule which says that it is incompetent for a pursuer to ask for a decree in a lump sum for separate wrongs is not broken. In this case the Appellants two claims, although separate, are interconnected in law and in fact, and it would be in the interests of justice and more convenient for them not to be separated. The pleadings are not unduly complex and good order in litigation favours the two claims being heard together. The objection to the competency of the action on this basis is also misconceived [27 28 and 32 33].
Provisions in the Landlord and Tenant Act 1985 (the 1985 Act) and the Service Charges (Consultation requirements) (England) Regulations 2003 (SI 2003/1987) impose statutory requirements and restrictions on a landlord, which impinge on its ability to recover service charges from tenants, typically of flats in a block of flats. Unless certain consultation requirements (the Requirements), which can be conveniently divided into four stages, are complied with by the landlord, or dispensed with by the Leasehold Valuation Tribunal (the LVT), the landlord cannot recover more than 250 from each tenant in respect of works for which the service charge would otherwise be greater. Section 20ZA(1) of the 1985 Act provides that the LVT may dispense with the Requirements if satisfied that it is reasonable to do so. The issue on this appeal concerns the width and flexibility of the LVTs jurisdiction to dispense with the Requirements, and the principles upon which that jurisdiction should be exercised. Daejan Investments Limited (Daejan) is the owner of the freehold of Queens Mansions (the Building). The Building is managed by Highdorn Co Ltd, which carries on business under the name of Freshwater Property Management (FPM). Five of the seven flats in the building are held under long leases, each of which is held by a respondent to this appeal (collectively the respondents). Each lease includes an obligation on the tenant to pay a specified fixed proportion of the cost of providing, among other things, the services which the landlord is obliged to provide, which include the repair of the structure, exterior and common parts of the building. The respondents were, at all material times, members of the Queens Mansions Residents Association (QMRA). In 2005, FPM sent QMRA a specification in respect of proposed works to the building (the Works), and appointed Robert Edward Associates (REA) as contract administrator. REA sent to QMRA and the respondents a notice of intention to carry out the Works, and provided estimates for them, thereby complying with stages 1 and 2 of the Requirements. REA informed the respondents and QMRA that two tenders appeared to be the most competitive: one from Rosewood Building Contractors (Rosewood); the other from Mitre Construction Ltd (Mitre). The respondents and QMRA were only provided with the priced specification submitted by Mitre. Daejan contracted for the Works with Mitre, but in so doing failed to comply with the third of the four stages of the Requirements, which required, among other things, Daejan to issue a statement to QMRA with a summary of observations on the estimates, its responses to them, and notice of where they would be available for inspection. Daejan requested the LVT to grant it dispensation from the Requirements, so that Daejan would be entitled to recover just under 280,000 in total from the respondents, as opposed to 1,250 in the absence of dispensation. During the course of the proceedings, Daejan proposed a 50,000 deduction to the 280,000. The LVT regarded Daejans failure as a serious breach of the Requirements, which amounted to serious prejudice to the respondents. Accordingly, the LVT refused dispensation. The Upper Tribunal and the Court of Appeal agreed with this refusal. The Supreme Court, by a majority of three to two (Lord Hope and Lord Wilson dissenting), allows the appeal, granting Daejan dispensation from the Requirements on terms that (i) the respondents aggregate liability to pay for the works be reduced by 50,000, and (ii) Daejan pay the reasonable costs of the respondents in relation to the proceedings before the LVT. Lord Neuberger gives the majority judgment. The correct question in this case was whether, if dispensation was granted, the respondents would suffer any relevant prejudice, and, if so, what relevant prejudice, as a result of Daejans failure to comply with the Requirements. It is highly questionable whether any such prejudice would have been suffered. The only specific prejudice was a matter of speculation, namely that the respondents lost the opportunity of making out the case for using Rosewood to carry out the Works, rather than Mitre [77]. Although there was a partial failure by Daejan to comply with the third stage of the Requirements, the relevant prejudice to the respondents could not be higher than the 50,000 effectively offered by Daejan [84]. It would be pointless to remit to the LVT the issue as to whether the 50,000 was sufficient compensation [80]. The purpose of the Requirements is to ensure that tenants are protected from paying for inappropriate works, or paying more than would be appropriate. In considering dispensation requests, the LVT should focus on whether the tenants were prejudiced in either respect by the failure of the landlord to comply with the Requirements [44]. The Requirements are a means to the end of the protection of tenants in relation to service charges [46]. There is no justification for treating consultation and transparency as appropriate ends in themselves [52]. The right to be consulted is not a free standing right [78]. As regards compliance with the Requirements, it is neither convenient nor sensible to distinguish between a serious failing, and a minor oversight, save in relation to the prejudice it causes. Such a distinction could lead to uncertainty, and to inappropriate and unpredictable outcomes [47] [49]. The LVT has power to grant dispensation on appropriate terms [54], and can impose conditions on the grant of dispensation [58], including a condition as to costs that the landlord pays the tenants reasonable costs incurred in connection with the dispensation application [59] [61]. Where a landlord has failed to comply with the Requirements, there may often be a dispute as to whether the tenants would relevantly suffer if an unconditional dispensation was granted [65]. While the legal burden is on the landlord throughout, the factual burden of identifying some relevant prejudice is on the tenants [67]. They have an obligation to identify what they would have said, given that their complaint is that they have been deprived of the opportunity to say it [69]. Once the tenants have shown a credible case for prejudice, the LVT should look to the landlord to rebut it and should be sympathetic to the tenants case [68]. Insofar as the tenants will suffer relevant prejudice, the LVT should, in the absence of some good reason to the contrary, effectively require the landlord to reduce the amount claimed to compensate the tenants fully for that prejudice. This is a fair outcome, as the tenants will be in the same position as if the Requirements have been satisfied [71]. This conclusion does not enable a landlord to buy its way out of having failed to comply with the Requirements, because a landlord faces significant disadvantages for non compliance [73]. This conclusion achieves a fair balance between ensuring that tenants do not receive a windfall, and that landlords are not cavalier about observing the Requirements strictly [74]. The minority considers that the LVT should weigh the gravity of the non compliance with the Requirements in determining whether to grant dispensation [111]. This includes distinguishing between breaches or departures according to their level of seriousness, without having first to consider the amount of prejudice they may cause or may have caused [92]. The legislative history of the Requirements suggests that the gravity of non compliance is relevant [103] [109]. Substantial non compliance with the Requirements entitles the LVT to refuse to grant dispensation [91],[110]. Daejans termination of the consultation process represented serious non compliance with the Requirements [99]. Questions as to the gravity of non compliance are questions of fact and degree best left to the judgment of the LVT [88]. Judicial restraint should be exercised by an appellate court where it is prescribing limits on the way an expert tribunal is to perform its functions [89]. The LVTs decision to reject the 50,000 proposal was not based on an error of law that would entitle the Supreme Court to interfere with it [94],[117].
The appellant was assaulted in 2010, while serving as a police officer, and subsequently suffered post traumatic stress disorder (PTSD). In 2011, she was involved in an incident which led to her arrest. She asserted that her behaviour on that occasion was related to her PTSD. After investigation, she was made the subject of a disciplinary charge before a police misconduct panel (the panel). She accepted that she had been guilty of the alleged misconduct. In mitigation, she relied on her good record as a police officer and her PTSD. On 12 November 2012, the panel conducting the hearing decided that she should be dismissed without notice. The appellant appealed against her dismissal to the Employment Tribunal, where she claimed that the dismissal decision constituted disability discrimination and disability related harassment, and was consequent on a failure to make reasonable adjustments. She brought a separate appeal against her dismissal to the Police Appeals Tribunal under the separate statutory scheme. In June 2013, the Employment Tribunal struck out her claim and, in March 2014, the Employment Appeal Tribunal dismissed her appeal. The basis of both decisions was that the panel was a judicial body, and so the claim was barred by the principle of judicial immunity. The Court of Appeal dismissed the further appeal. The appellant appealed to the Supreme Court. The Supreme Court unanimously allows the appeal, finding that EU law requires police officers to be able to bring claims in the Employment Tribunal in respect of dismissals following proceedings before a police misconduct panel. Such claims cannot be barred by judicial immunity. Lord Reed, with whom the other Justices agree, gives the lead judgment. Lord Hughes gives a concurring judgment. Directly effective EU rights: where directly effective EU rights are in issue, EU law must be both the starting point and the finishing point of the analysis, since EU law takes priority over domestic law. EU Council Directive 2000/78/EC (the directive) confers on all persons, including police officers, a directly effective right to be treated in accordance with the principle of equal treatment in relation to employment and working conditions, including dismissals. The UK is obliged to ensure that appropriate judicial and/or administrative procedures are available, and that effective, proportionate and dissuasive sanctions are applied. The procedures under national law must comply with the general principles of effectiveness and equivalence, and with the right to an effective remedy under article 47 of the Charter of Fundamental Rights of the European Union [27 28]. Principles of equivalence and effectiveness: The principle of equivalence requires that police officers must have the right to bring claims of treatment contrary to the directive before Employment Tribunals. This is because comparable discrimination claims can be brought before those tribunals in domestic law. On that basis, leaving police officers with a claim only to the Police Appeals Tribunal would not comply with the principle of equivalence [29]. Allowing police officers to bring claims to Employment Tribunals also fulfils the principle of effectiveness, because Employment Tribunals have the power to award a range of remedies, including compensation. The remedies available before the Police Appeal Tribunal are more limited than those available before the Employment Tribunals [29]. The UK is not entitled to deny police officers an effective and equivalent remedy. The right not to be discriminated against is a fundamental right in EU law. The creation of a statutory process, which entrusts disciplinary functions to persons who might benefit from judicial immunity, cannot bar complaints to an Employment Tribunal by police officers who claim that they have been treated contrary to the directive. National rules in relation to judicial immunity can be applied in accordance with EU law only in so far as they are consistent with EU law [30]. Interpretation of the legislation: The Equality Act 2010 plainly confers on police constables the right to bring proceedings before Employment Tribunals in order to challenge discrimination by chief officers and responsible officers. This is plain from section 42(1), which provides that a police constable is deemed to be the employee of the chief officer or of the responsible authority in relation to acts done by those persons in relation to the constable. It was presumably envisaged by Parliament that the exercise of disciplinary functions in relation to police officers would fall under those provisions [31]. Read literally, however, the Act does not cover the exercise of disciplinary functions in relation to police officers who have completed their period of probation, other than senior officers, when those disciplinary functions are entrusted to a misconduct panel. This is because the exercise of disciplinary functions by a panel is not an act done by either the chief officer or the responsible authority within the meaning of section 42(1). This reading fails to fully implement the directive [32]. The problem can be resolved by interpreting section 42(1) of the 2010 Act as applying to the exercise of disciplinary functions by misconduct panels in relation to police constables, by reading words into section 42(1)(a) to that effect. Such an interpretation runs with the grain of the legislation and is warranted under the EU principle of conforming interpretation. This does not mean the court is amending the legislation and is merely a way of interpreting the legislation to conform with EU law in a case such as the present [33 34]. Conclusion: The appeal is allowed. The reasoning of the Court of Appeal in the case of Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943 (which held that EU law could not displace the common law rule of judicial immunity), was unsound. The present case should be remitted to the Employment Tribunal [35]. Lord Hughes gives a judgment, agreeing with the judgment of Lord Reed, and adding that the principle of judicial immunity generally serves a legitimate, proportionate and useful role. He considers that the scope for parallel or collateral proceedings in both the Employment Tribunals and the Police Appeals Tribunal, which exists under the present legislation, might be considered in any future review of the legislation [37 39].
The appellant, Nadine Montgomery, gave birth on 1 October 1999 at Bellshill Maternity Hospital, Lanarkshire. As a result of complications during delivery, her baby was born with serious disabilities. Mrs Montgomery sought damages on behalf of her son alleging negligence of the respondent Boards employee, Dr McLellan, who was responsible for her care during her pregnancy and labour. Mrs Montgomery has diabetes. Women with diabetes are more likely to have large babies and there is a 9 10% risk of shoulder dystocia during vaginal delivery (the babys shoulders being too wide to pass through the mothers pelvis). Though this may be resolved by emergency procedures during labour, shoulder dystocia poses various health risks to the woman and baby. Mrs Montgomery had raised concerns about vaginal delivery but Dr McLellans policy was not routinely to advise diabetic women about shoulder dystocia as, in her view, the risk of a grave problem for the baby was very small, but if advised of the risks of shoulder dystocia women would opt for a caesarean section, which was not in the maternal interest. Following the decision of the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985], the Lord Ordinary held that whether a doctors omission to warn a patient of risks of treatment was a breach of her duty of care was normally to be determined by the application of the Bolam test (Bolam v Frierm Hospital Management Committee [1957] i.e., whether the omission was accepted as proper by a responsible body of medical opinion, which could not be rejected as irrational. Given the expert medical evidence for the Board, the Bolam test was not met. The Lord Ordinary accepted that where treatment involves a substantial risk of grave adverse consequences, in some cases a judge could conclude that a patients right to decide whether to consent to that treatment was so obvious that no prudent doctor could fail to warn of the risk. In the Lord Ordinarys view, the risk of shoulder dystocia, though significant, did not in itself require a warning since in most cases shoulder dystocia was dealt with by simple procedures and the chance of a severe injury to the baby was tiny. Following Sidaway, he also noted that if a patient asks about specific risks, the doctor must answer, but did not accept that Mrs Montgomery asked such questions. The Inner House of Session refused Mrs Montgomerys reclaiming motion and upheld the Lord Ordinarys conclusion. Since both courts held that no duty owed was to her, the issue of causation did not arise. Both nonetheless held that Mrs Montgomery had not shown that, had she been advised of the risk, she would have elected to undergo a caesarean, thus avoiding the risks to the baby. The Supreme Court unanimously allows the appeal. Lord Kerr and Lord Reed give the lead judgment with which Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson and Lord Hodge agree. Lady Hale gives a concurring judgment. Lord Kerr and Lord Reed find that since Sidaway, it has become clear that the paradigm of the doctor patient relationship implicit in the speeches in that case has ceased to reflect reality. It would be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent on information from doctors. This is reflected in the General Medical Councils guidance. Courts are also increasingly conscious of fundamental values such as self determination. [74 80] Societal and legal changes point towards an approach to the law which treats patients so far as possible as adults capable of understanding that medical treatment is uncertain of success and may involve risks, of accepting responsibility for risks affecting their lives, and of living with the consequences of their choices. This entails a duty on doctors to take reasonable care to ensure that a patient is aware of material risks inherent in treatment. Further, because the extent to which a doctor may be inclined to discuss risks with patients is not determined by medical learning or experience, applying the Bolam test to this question is liable to result in the sanctioning of differences in practice attributable not to divergent schools of thought in medicine, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients. [81 85] Lord Kerr and Lord Reed reason that an adult of sound mind is entitled to decide which, if any, of the available treatments to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in proposed treatment, and of reasonable alternatives. A risk is material if a reasonable person in the patients position would be likely to attach significance to it, or if the doctor is or should reasonably be aware that their patient would be likely to attach significance to it. Three further points emerge: first, assessing the significance of a risk is fact sensitive and cannot be reduced to percentages. Second, in order to advise, the doctor must engage in dialogue with her patient. Third, the therapeutic exception is limited, and should not be abused. [86 91] In the present case, Dr McLellan ought to have advised Mrs Montgomery of the substantial risk of shoulder dystocia. The Court of Session focused on the relatively small consequent risk of grave injury to the baby. However, shoulder dystocia itself is a major obstetric emergency; the contrast with the tiny risks to the woman and baby involved in an elective caesarean is stark. [94] On causation, the courts below had in mind the supposed reaction of Mrs Montgomery if advised of the minimal risk to the baby of a grave injury consequent on shoulder dystocia. The lower courts should have focused on her likely reaction if advised of the risk of shoulder dystocia itself. Dr McLellans unequivocal view was that Mrs Montgomery would choose a caesarean if so advised; indeed that is precisely why she withheld that information. [101, 103] The Lord Ordinary considered the doctor to be an impressive witness. The only reasonable conclusion is that had Dr McLellan discussed dispassionately with Mrs Montgomery the risk of shoulder dystocia, the potential consequences, and the alternatives, she probably would have elected for a caesarean section. [104] Lady Hale reasons that it is impossible to consider a particular procedure in isolation from its alternatives. Pregnancy is a powerful illustration. Where either mother or child is at heightened risk from vaginal delivery, doctors should volunteer the pros and cons of that option compared to a caesarean. We are concerned not only with risks to the baby, but also risks to the mother. [109 114] Dr McLellans view that caesareans are not in maternal interests is a value judgment; once the argument departs from purely medical considerations, the Bolam test is inapposite. A patient is entitled to take into account her own values and her choices must be respected, unless she lacks capacity. She is at least entitled to information enabling her to take part in the decision. [114 115]
The Respondents were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the decision of this Court in Cadder v HM Advocate [2010] UKSC 43, and they did not have access to legal advice either before or during their police interviews. In the course of their interviews, they each made statements which were later relied on by the Crown at their trials. They were convicted and sentenced to various periods of imprisonment. They appealed, and their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. The Respondents argued, on the basis of Cadder, that the leading of evidence of the statements they made during their police interviews was a breach of their rights under Articles 6(3)(c) and 6(1) of the European Convention on Human Rights, and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence. For Birnie, it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under Article 6(1) and at common law. The Crowns objections to the devolution issue were repelled by the Appeal Court, and the Crown appealed to the Supreme Court. On the question whether the Respondents had waived their right to legal assistance, the Lord Advocates position before the Court was that the important point in these appeals was that raised in the case of Birnie. Unlike the other two Respondents, Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. The outstanding matters before the Court were therefore: (i) Whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies (ii) Whether Birnie waived his right of access to a lawyer when he made his unsolicited statement (iii) Whether the reliance by the Crown upon the appellants admissions in these circumstances The Supreme Court unanimously dismisses the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case. It unanimously dismisses its appeals on the issue as to waiver in regard to the police interviews of Jude and Hodgson. By a majority of 4 1, it allows the appeal on the question whether it was incompatible with Birnies right to a fair trial for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remits that matter for determination by the High Court of Justiciary. Lord Hope gives the leading judgment. Lord Kerr gives a partly dissenting judgment. (1) Time Bar: Section 100(3B) of the Scotland Act 1998, as amended, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of to Judes appeal; following his police interview; and deprived him of his right to a fair trial under Article 6(1) of the Convention. took place. The question is whether that section applies to proceedings brought by way of an appeal under the 1995 Act [6]. A criminal appeal under section 57(2) of the Scotland Act falls plainly into the category of a proceeding that is by virtue of the Scotland Act. The fact that the procedure under which the complaint is made is provided by the 1995 Act is irrelevant as far as this point is concerned, and does not render section 100(3B) inapplicable[13]. The opening subsection of section 100 makes the same distinction as that found in section 7(1) of the Human Rights Act 1998 between bringing proceedings on the basis of Convention rights, and relying on Convention rights in any such proceedings. The wording is not exactly the same in the two Acts, but the assumption is that they have the same effect. The time bar under section 7(5) of the Human Rights Act refers only to proceedings under section (1)(a) and not those under (1)(b) [15]. The time bar in section 100(3B) has the same effect, so it does not apply to proceedings of the kind referred to in section 100(1)(b). The point is that proceedings under that section are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights [16]. An appeal against conviction or sentence is still part of the prosecution process that has been brought by the Lord Advocate [17]. Further, the 1995 Act contains its own system of time limits for the bringing of appeals. It would be very odd if an appeal were subject to two different time limits under two different Acts [18]. (2) Waiver. Birnie was offered rights of access to a solicitor before he made his statement and was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both offers [26]. There is no absolute rule that the accused must have been given legal advice on the question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54 [28]. It was not suggested in the course of argument that an absolute rule requiring reasons for the accuseds decision to waive his right to legal assistance is to be found in the jurisprudence of the Strasbourg court. The only question for this Court is whether the absence of such an inquiry amounted in itself to a breach of a Convention right. It is not for the Supreme Court to say how the law and practice respecting crimes should be developed by the common law in Scotland. The fact that the waiver was made without legal advice and without reasons being requested may be taken into account in the assessment as to whether Birnie understood the right that was being waived. But Strasbourg does not require the Court to hold that it would necessarily be incompatible with Article 6 to rely on statements made to police just because it was not ascertained why the suspect did not want to speak to a lawyer. The Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention compliant system without itself imposing specific requirements on the State. The Supreme Court should be no less careful in the way that it deals with Scottish criminal law and procedure [29]. There is room for argument as to whether Birnies statement was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. The question of overall fairness for the purposes of Article 6(1) must be examined in the light of all the facts and circumstances, and is therefore a matter for determination by the High Court of Justiciary [33]. For Lord Kerr, it is an indispensable prerequisite that there must be some means of ascertaining the reason that the right to legal assistance has been waived [53]. On the available evidence, it has not been established that there was an effective waiver by Birnie of his right to legal assistance [57].
Oxwich Leisure Park contains ninety one chalets, each of which is let for a period of 99 years from 25 December 1974 on very similar terms. The Appellants are the current tenants under 25 of the leases. 21 of these leases were granted between 1978 and 1991. Clause 3(2) of each lease contains a covenant to pay a service charge. Each lease also contains covenants by the lessor. One such covenant is to provide services to the Park, such as maintaining roads, paths, fences, a recreation ground and drains, mowing lawns, and removing refuse. The lessor also covenants in clause 4(8) that leases of other chalets shall contain covenants on the part of the lessees thereof to observe the like obligations as are contained herein or obligations as similar thereto as the circumstances permit. The Respondent, the current landlord, argues that the service charge provision in clause 3(2) requires the lessee to pay an initial annual service charge of 90, which increases at a compound rate of 10% for the first 70 chalets to be let, every three years, but for the last 21 chalets to be let, every year. The service charge provisions in four of the 70 leases were subsequently varied so that the increases were yearly rather than every three years. The language of the clause 3(2) differs in small respects between the leases, but a typical example is a covenant to To pay to the Lessor without any deduction in addition to the said rent a proportionate part of the expenses and outgoings incurred by the Lessor in the repair maintenance renewal and the provision of services hereinafter set out the yearly sum of Ninety Pounds and value added tax (if any) for [the first three years OR the first year] of the term hereby granted increasing thereafter by Ten Pounds per Hundred for every subsequent [three year period OR year] or part thereof. The issue on this appeal is whether the Respondents interpretation of clause 3(2) in those 25 leases, where the increase is to be every year, is correct. The Supreme Court holds that the Respondent is correct and therefore dismisses the tenants appeal by a majority of 4 1 (Lord Carnwath dissenting). Lord Neuberger (with whom Lord Sumption and Lord Hughes agree) gives the lead judgment and Lord Hodge gives a concurring judgment. When interpreting a written contract, the court must identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean, focussing on the meaning of relevant words in their documentary, factual and commercial context. However, subjective evidence of any partys intentions must be disregarded [14 15]. In the present case, while reliance must be place on commercial common sense, this should not undervalue the importance of the language of the provision [17]. Commercial common sense cannot be invoked by reference to facts which arose after the contract was made; it is only relevant to ascertaining how matters would or could have been perceived as at the date of the contract. The fact that an arrangement has worked out badly or even disastrously is not a reason for departing from the natural meaning of the language; neither is the fact that a certain term appears to be very imprudent. It is not the function of the court interpreting a contract to relieve a party from the consequences of imprudence or poor advice [19 20]. Moreover, there exists no special principle of interpretation that service charge clauses are to be construed restrictively [23]. The natural meaning of clause 3(2) is clear; the first half of the clause provides that the lessee is to pay an annual charge to reimburse the lessor for the costs of providing the services which he covenants to provide, and the second half of the clause identifies how that service charge is to be calculated, namely as a fixed sum, with a fixed annual increase. This choice is readily explicable; the parties assumed that the cost of providing the services would increase, and they wished to avoid arguments as to the cost of the service and the apportionment between the tenants. The reasonable reader of the clause would see the first half of the clause as descriptive of the purpose of clause 3(2), namely to provide for an annual service charge, and the second half as a quantification of that service charge [24 27]. In the case of the 21 (now 25) leases which provide for an annual increase in the service, it is true that this has an alarming consequence; if one assumes a lease granted in 1980, the service charge would be over 2,500 this year, 2015, and over 550,000 by 2072. However, despite such consequences, this is not a convincing argument for departing from the natural meaning of clause 3(2) [30 32]. Although there are one or two small errors in the drafting, nothing has gone significantly wrong with the wording of the clause in any of the 25 leases [34]. Moreover, during the 1970s and much of the 1980s, annual inflation had been running at a higher annual rate than 10% for a number of years; the clause could be viewed as a gamble on inflation for both parties [35 36]. In relation to the leases which were varied between 1998 and 2002, it is extraordinary that a lessee under a lease which provided for an increase in a fixed service charge at the rate of 10% over three years should have agreed to vary the lease so that the increase was to be at the rate of 10% per annum, at a time when inflation was running at around 3% per annum. However, this does not justify reaching a different result [39 40]. The purpose of clause 4(8) and the opening words of clause 3 may well have been to create a letting scheme such that properties within a given area are intended to be let on identical or similar terms, normally by the same lessor, so that the terms are to be enforceable not only by the lessor against any lessee, but as between the various lessees [47 49]. The Appellants case is that there is an implied term in each of the 21 leases granted between 1977 and 1991 such that the lessor is not asking anything of the lessee which had not been required of lessees of other chalets, whether their leases were in the past or future. Even assuming that there is such a scheme, this would not be a correct term to imply. A term that the already existing 70 leases have services charges which increase at the compound rate of 10% p.a. as in the existing 21 leases would be inconsistent with an express term of the appellants leases [50 56]. Accordingly, the appeal should be dismissed [60 65]. In his dissenting judgment, Lord Carnwath considers that the commercial purpose of clause 3(2) was to enable the lessor to recover from the lessees the costs of maintaining the estate on their behalf, the payment by each lessee being intended to represent a proportionate part of the expenses incurred. He is of the view that the clause contained an inherent ambiguity between the two halves of the clause. [125 126]. There are only two realistic possibilities for the meaning of the second part of the clause; either it is a fixed amount which supplants any test of proportionality under the first part or it is no more than an upper limit to the assessment of a proportionate amount [128]. Lord Carnwath considers the consequences of the lessors interpretation to be so commercially improbable that only the clearest words would justify adopting it. For this reason he would have allowed the appeal [158 159].
On 12 May 2008, Mr Konecny (the appellant), a Czech national, was convicted in his absence by the District Court in Brno Venkov, Czech Republic (the District Court) of three offences of fraud, committed between November 2004 and March 2005, and was sentenced to eight years imprisonment. The extradition of the appellant was requested by the District Court by a European Arrest Warrant (EAW) dated 17 April 2013 pursuant to the European Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between member states (2002/584/JHA) (the Framework Decision). The Framework Decision is implemented in the United Kingdom by Part 1 of the Extradition Act 2003 (the 2003 Act). The EAW states that it is based on an enforceable judgment, namely the judgment of the District Court dated 12 May 2008. The EAW also specifies that the appellant will be afforded an unqualified right to be re tried upon return in the event that he makes an application to be re tried. On 2 March 2017, the EAW was certified by the National Crime Agency (NCA) and the appellant was arrested. The extradition hearing took place on 10 April 2017. In reliance on section 14(a) of the 2003 Act, the appellant argued that he was an accused person facing a prospective trial and that it would be unjust and oppressive to order his extradition taking into account the delay since 2004. The appellant also maintained that his extradition would infringe his rights under article 8 of the European Convention on Human Rights (ECHR). District Judge Ashworth ruled that it was the conviction provisions in section 14(b) of the 2003 Act which were the operative provisions and that, as a result, the passage of time to be considered under section 11(1)(c) and section 14 was restricted to the period from 12 May 2008 (the date of conviction by the District Court) onwards. He concluded that the circumstances of the delay did not justify a finding that it would be unjust or oppressive to return the appellant to the Czech Republic. He also considered that the public interest factors in favour of extradition outweighed the considerations relating to the appellants family and private life under article 8 of the ECHR. In this context he took account of the passage of time since 2004. On 27 September 2017, the High Court dismissed the appeal. On 7 November 2017, the High Court certified the following point of law of general public importance: In circumstances where an individual has been convicted, but that conviction is not final because he has an unequivocal right to a retrial after surrender, is he accused pursuant to section 14(a) of the 2003 Act, or unlawfully at large pursuant to section 14(b) for the purposes of considering the passage of time bar to surrender?. The appellant sought and obtained permission to appeal to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Lloyd Jones gives the sole judgment with which the other Justices agree. At the heart of the present appeal lies the issue of the characterisation of the appellant as an accused person or a convicted person. The EAW system is founded on the high level of mutual trust and confidence between member states and, as a result, in seeking to give effect to this distinction when applying implementing legislation, a national court will usually attach considerable weight to the description by the requesting judicial authority in the EAW of the position in its own national law. The view of the requesting judicial authority will not always be conclusive, but it will normally be influential and, in the absence of evidence to the contrary, it is likely to be followed [18]. The Court considers that the appellants case founded on EU law is not made out [28]. It also considers that the appellants case is inconsistent with the EAW scheme and the express provisions of the 2003 Act [34]. The express provisions in their natural meaning provide a coherent structure within which to address all cases of trial in absentia [37]. The Court considers that the following principles should be applied by a court in this jurisdiction when seeking to characterise a case as an accusation case or a conviction case [50]: (1) The dichotomy drawn by the Framework Decision between accusation warrants and conviction warrants is a matter of EU law. The Framework Decision does not have direct effect but national implementing legislation should, so far as possible, be interpreted consistently with its terms. (2) The court should seek to categorise the relevant facts by reference to their status and effects in the law and procedure of the member state of the requesting judicial authority. (3) Ordinarily, statements made by the requesting judicial authority in the EAW or in supplementary communications will be taken to be an accurate account of its law and procedure but evidence may be admitted to contradict them. (4) A person may properly be regarded as convicted for this purpose if the conviction is binding and enforceable under the law and procedure of the member state of the requesting authority. (5) For this purpose, it is not a requirement that a conviction should be final in the sense of being irrevocable. In particular, a convicted person who has a right to a retrial may, nevertheless, be properly considered a convicted person for this purpose, provided that the conviction is binding and enforceable in the law and procedure of the member state of the requesting authority. (6) While the view of the requesting judicial authority on the issue of characterisation cannot be determinative, the question whether a conviction is binding and enforceable will depend on the law of that member state. The Court accepts that where a person with a right to a retrial is correctly classified as a convicted person for the purposes of the 2003 Act it could work to his disadvantage in the operation of section 14 because the passage of time prior to his conviction is excluded from consideration. This is a deficiency in the drafting of the statute which requires consideration by the legislature at an early opportunity [54]. However, until such time as section 14 can be amended by Parliament, article 8 of the ECHR provides an appropriate and effective alternative means of addressing passage of time resulting in injustice or oppression in cases where the defendant has been convicted in absentia [58]. In this case, District Judge Ashworth correctly characterised the EAW as a conviction warrant. The EAW indicated there was an enforceable judgment and a legally effective conviction which would remain such until revoked. The Court was satisfied that full and appropriate account was taken of the passage of time since the offences were allegedly committed, and the appellant has not been disadvantaged in any way as a result [70]. For these reasons, the Court dismisses the appeal [72].
Lukaszewski (L), Pomiechowski (P) and Rozanski (R) are Polish citizens who are each the subject of a European Arrest Warrant (EAW) issued by the Polish court. Each is wanted in order to serve an existing sentence. L is wanted, in addition, to stand trial on ten charges of fraud. The fourth appellant, Halligen (H), is a British citizen whose extradition is sought to the USA under Part 2 of the Extradition Act 2003 (the Act) to face allegations of wire fraud and money laundering. All four appellants were arrested and brought before Westminster Magistrates Court. L, P and Rs extradition were ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Hs case was sent to the Secretary of State for her to decide whether H should be extradited. On 22nd December 2010, Hs extradition was ordered by the Secretary of State, and the order and a letter setting out the Secretary of States reasons were sent by post and fax (at either 15.48 or 16.48) to Hs solicitors on that same day. All four appellants were remanded in custody at HMP Wandsworth pending extradition. The permitted time period for giving notice of appeal against an extradition order was 7 days in the case of L, P and R, and 14 days in the case of H. L, P and R were each assisted by a prison officer working in the legal services department at HMP Wandsworth to complete a notice of appeal. The legal services department faxed the notices of appeal to the Administrative Court for filing and stamping, which faxed back a copy of the sealed front page to the legal services department. The legal services department then faxed to the Crown Prosecution Services (CPS), as legal representatives of the judicial authority of the state requesting surrender, a copy of the sealed front page together with a cover sheet. In the case of each of L, P and R, all this occurred within the 7 day permitted period. However, in each case, the CPS was not served with a full copy of the notice of appeal, sealed or unsealed, until after the 7 day time limit had expired. The High Court held it had no jurisdiction to hear the appeals. A notice of appeal had to be both filed and served within the non extendable permitted period, and must (a) identify the appellant, (b) identify the decision against which he seeks to appeal, and (c) set out at least the gist of the basis on which the appeal is sought to be presented. Accordingly, the purported notices of appeal were invalidly constituted and served out of time. Hs solicitors prepared a notice of appeal, attaching grounds of appeal, on 23rd December 2010. The notice of appeal was filed and stamped on 29th December 2011, well within the 14 day permitted period which expired at midnight on 4th January 2011. However, only on 5th January 2011 did Hs solicitors send the notice of appeal to the CPS by fax and to the Home Office by post (reaching the latter on 6th January 2011). H himself had written from prison by fax to the Home Office on 29th December 2010 asking them to accept the letter as notice & service of my intent to appeal that decision and stating that he had instructed solicitors for that purpose. The High Court held it had no jurisdiction to hear Hs appeal, that Hs letter of 29th December 2011 did not constitute a valid notice of appeal, and the Secretary of State should be treated as having informed H of her decision on 22nd December, not 23rd December, 2011, so that the purported notice of appeal was in any event served out of time. All four appellants appealed the decisions of the High Court to the Supreme Court. The Supreme Court allows all four appeals unanimously. Lord Mance gives the leading judgment of the Court. Lady Hale gives a separate concurring judgment. The requirement under the Act that a notice of an appeal be given within the relevant permitted period meant that it had to be filed in the High Court and served on all respondents to the appeal within such period (following the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL 2) [5], [17]. However, a generous view should be taken of this requirement, bearing in mind the shortness of the permitted periods under the Act and that what really matters is that an appeal should have been filed and that all respondents be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal [18]. In the cases of L, P and R, the irregularity involved in the absence of pages following the sealed front page of their notices of appeal was capable of cure. The CPS, having received in time the sealed front page of each notice of appeal, can have had no difficulty in identifying the decisions being appealed. It would be disproportionate if the practice followed by the court and the prison legal services department should lead to the appellants losing their right of appeal [19]. The Court regards Hs letter as notice to the Secretary of State of an appeal within the Act, albeit that the letter was highly irregular in its form [20]. However, even if it is accepted that Hs solicitors only received the relevant fax from the Secretary of State at 16.48, there was no basis for deeming the fax to have been received the following day. It follows that no notice of an appeal was given to the CPS within the permitted period, and Hs appeal is on its face impermissible as against both respondents [21]. In these circumstances, the question for the Court is whether the apparently inflexible time limits for appeals within the Act are subject to any qualification or exception [22]. Under Article 6(1) of the Human Rights Convention, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of any criminal charge against him. The Court is satisfied that extradition does not involve the determination of a criminal charge [31]. However, H, as a UK citizen, enjoyed a civil right to enter and remain in the UK as and when he pleased [32]. Proceedings under the Act, in that they may affect Hs freedom to remain in the UK, at least for the duration of foreign extradition proceedings, involve the determination of that civil right [32]. It follows that the extradition proceedings against H fall within Article 6(1) [33]. In the case of a UK citizen, the statutory provisions concerning appeals can and should be read (pursuant to the obligation of conforming interpretation under section 3(1) of the Human Rights Act 1998) as being subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1). Accordingly, the Court allows all four appeals and remits each appeal against extradition to the High Court to be heard there [19], [41].
The respondent, Mr Sevilleja, owned and controlled two companies (the Companies) incorporated in the British Virgin Islands (BVI). The appellant, Marex Financial Ltd (Marex), brought proceedings against the Companies for sums due under contract. After a trial in the Commercial Court before Field J, Marex obtained judgment for over US$5.5 million, plus costs of1.65 million. On 19 July 2013, Field J gave the parties a confidential draft of his judgment, due to be handed down six days later. From 19 July 2013, Mr Sevilleja allegedly procured the offshore transfer of over US$9.5 million from the Companies London accounts into his personal control. By the end of August 2013, the Companies assets were just US$4,329.48, such that Marex could not receive payment of its judgment debt and costs. In December 2013, Mr Sevilleja placed the Companies into liquidation in the BVI, their alleged debts exceeding US$30 million. Marex is the only creditor not connected to Mr Sevilleja. According to Marex, the liquidation process is effectively on hold, with the liquidator failing to investigate claims submitted to him, to locate Marexs missing funds, or to issue proceedings against Mr Sevilleja. In the present proceedings, Marex seeks damages from Mr Sevilleja in tort for (1) inducing or procuring the violation of its rights under Field Js judgment and orders, and (2) intentionally causing it to suffer loss by unlawful means. The sums claimed are (1) the judgment debt, interest and costs awarded by Field J, less an amount Marex recovered in US proceedings, and (2) costs incurred by Marex in its attempts to obtain payment. Mr Sevilleja contends that Marexs claim in respect of (1) is barred by the reflective loss principle. That contention was upheld by the Court of Appeal. The Supreme Court unanimously allows the appeal. The leading judgment is given by Lord Reed, with whom Lady Black and Lord Lloyd Jones agree. Lord Hodge gives a separate judgment agreeing with the reasoning of Lord Reed. Lord Sales delivers a separate judgment, with which Lady Hale and Lord Kitchin agree, allowing the appeal on a wider basis. After explaining relevant general principles of law [2 13], and the background to the appeal [14 22], Lord Reed examines the decisions which are said to have established the reflective loss principle, namely Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204 [23 39] and Johnson v Gore Wood & Co [2002] 2 AC 1 [40 67]. He concludes that Prudential laid down a rule of company law: a diminution in the value of a shareholding or in distributions to shareholders, which is merely the result of a loss suffered by the company in consequence of a wrong done to it by the defendant, is not in the eyes of the law damage which is separate and distinct from the damage suffered by the company, and is therefore not recoverable. The rule is based on the rule in Foss v Harbottle (1843) 2 Hare 461, which would be subverted if the shareholder could pursue a personal action in those circumstances [35 39]. That understanding of the rule is consistent with the speech of Lord Bingham in Johnson. Lord Milletts speech, however, treated the reflective loss principle as a wider principle of the law of damages, based on the avoidance of double recovery [61 63]. Lord Reed then reviews subsequent cases in which the reflective loss principle as explained by Lord Millett has developed, including Giles v Rhind [2002] EWCA Civ 1428, Perry v Day [2004] EWHC 3372 (Ch), and Gardner v Parker [2004] EWCA Civ 781 [68 77]. This examination makes clear the need to distinguish (1) cases where claims are brought by a shareholder in respect of loss which he has suffered in that capacity, in the form of a diminution in share value or in distributions, which is the consequence of loss sustained by the company, in respect of which the company has a cause of action against the same wrongdoer, and (2) cases where claims are brought, whether by a shareholder or by anyone else, in respect of loss which does not fall within that description, but where the company has a right of action in respect of substantially the same loss [80]. The first kind of case is barred by the rule in Prudential, regardless of whether the company recovers its loss in full [80 83]. In the second kind of case, recovery is permissible in principle, although it may be necessary to avoid double recovery [84 88]. In light of this, Lord Reed holds that the reasoning in Johnson (other than that of Lord Bingham) should be departed from, and that Giles, Perry and Gardner were wrongly decided [89]. The rule in Prudential does not apply to Marex, which is a creditor of the Companies, not a shareholder [92]. Lord Hodge agrees with Lord Reeds reasons, noting that the panel was in agreement that the reflective loss principle has been expanded too greatly and would cause injustice if applied to Marexs situation [95]. Lord Hodge also points out the central role of company law in the Court of Appeals judgment in Prudential, and how the reflective loss principles departure from those foundations has given rise to problems and uncertainties in the law [95 108]. The bright line rule has a principled basis in company law and ought not to be departed from now [109]. Lord Sales concludes that Marexs appeal should be allowed, but for reasons differing from those of the majority [116]. The majority see the reflective loss principle, per Prudential, to be a rule of law deeming a shareholders loss by reduction in value of their shares or dividends to be irrecoverable where the company has a parallel claim. However, in Lord Saless view, Prudential did not lay down a rule that would exclude a shareholders recovery where, factually, the loss was different from that of the company. The court in Prudential set out reasoning why it thought a shareholder in such a case had suffered no separate loss, but this is not sustainable [117 118]. The governing principle is indeed avoidance of double recovery, as was the view of the Law Lords in Johnson (contra Lord Reed) [119]. Lord Sales criticises the authorities use of the word reflective as being unhelpful. Although there is necessarily a relationship between a companys loss and the reduction in share values that it causes, the loss suffered by the shareholder is not the same as the loss suffered by the company and there is no one to one correspondence between the two [132]. The Court of Appeal in Prudential conflated the rationale for the rule in Foss v Harbottle with that for the reflective loss principle and assumed that a personal action would subvert the rule. That is not the case [142]. A shareholder ought not to be prevented from pursuing a valid personal cause of action; double recovery can be prevented by other means [149 155]. Lord Sales therefore questions the justification for the reflective loss principle and whether it should still be recognised [194]. Even if the principle is accepted, it should not be extended to cover a case involving loss suffered by a creditor of the company. There are better ways to avoid double recovery in such a situation, such as by according the wrongdoer a right of subrogation to the extent he pays the creditor sums in respect of the debt owed by the company [198 205].
The Appellant (the Father), James Rhodes, is a concert pianist, author and television film maker. He has written a book titled Instrumental, which he is hoping to publish, and it is aimed at providing a sound track to the story of his life. It includes searing accounts of the physical and sexual abuse and rape inflicted on him from the age of six by the boxing coach at his school. It goes on to chart his subsequent resorting to drink, drugs, self harm, attempts at suicide as well as his time in psychiatric hospital culminating in his redemption through learning, listening to and playing music. The book also refers to his first marriage, to an American novelist then living in London (the Mother), and the child they had together (the Son) to whom the book is dedicated. The Mother and Father divorced some years ago. During the divorce, they made a residence and contact order in London on 15 June 2009. This included a recital by which the Mother and Father agreed to use their best endeavours to protect the Son from any information concerning the past previous history of either parent which would have a detrimental effect upon the childs well being. The Mother and Son now live overseas. The Son has been diagnosed with Aspergers syndrome, attention deficit hyperactivity order, dyspraxia and dysgraphia. A first draft of the book, sent to the publishers in December 2013, was leaked to the Mother in February 2014. Some changes were made, such as the use of pseudonyms. However, the Mother wanted more significant changes as she was concerned that the book would cause psychological harm to the Son, now aged 11, if he came to read it. In June 2014, she brought proceedings (later taken over by the Sons godfather), on behalf of the Son, on various grounds seeking an injunction prohibiting publication or the deletion of a large number of passages. She adduced evidence from a consultant child psychologist whose opinion was that the Son was likely to suffer severe emotional distress and psychological harm if exposed to the material in the book because of his difficulties in processing information. In July 2014, Bean J in the High Court dismissed the application for an interim injunction. In October 2014, the Court of Appeal reversed the High Court, finding that only the claim for intentionally causing harm under the tort in Wilkinson v Downton should go to trial. It also granted an interim injunction restraining the Father from publishing certain information such as, for example, graphic accounts ofsexual abuse he suffered as a child. The Father appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. Lady Hale and Lord Toulson (with whom Lord Clarke and Lord Wilson agree) deliver the judgment of the Court. Lord Neuberger (with whom Lord Wilson agrees) gives a concurring judgment. Lady Hale and Lord Toulson consider the domestic case law [31 67] and other common law authorities [68 71] in relation to the tort in Wilkinson v Downton. It consists of three elements: (1) a conduct element; (2) a mental element; and, (3) a consequence element. Only (1) and (2) are issues in this case [73]. The conduct element requires words or conduct directed towards the claimant for which there was no justification or reasonable excuse, and the burden of proof is on the claimant [74]. In this case, there is every justification for the publication. The Father has the right to tell the world about his story. The law places a very high value on freedom of speech. The right to disclosure is not absolute because a person may, for example, owe a duty to treat information as confidential, but there is no general law prohibiting the publication of facts which will distress another person. It is hard to envisage any case where words which are not deceptive, threatening or (possibly) abusive could be actionable under the tort recognised in Wilkinson v Downton [75 77]. In addition, the injunction prohibiting graphic language was wrong in principle and in form; it is insufficiently clear what graphic means and, in any event, a right to convey information to the public includes a right to choose the language in which it is expressed in order to convey the information most effectively [78 79]. The required mental element is an intention to cause physical harm or severe mental or emotional distress. Recklessness is not enough [87]. In this case, there is no evidence that the Father intends to cause psychiatric harm or severe mental or emotional distress to his Son [89], and there is no justification for imputing an intention to cause harm on the basis of harm being foreseeable. Intention is a matter of fact. It may be inferred in an appropriate case from the evidence, but is not to be imputed as a matter of law [81 82]. There is no real prospect of establishing either the conduct element or the mental element of the tort [90]. Lord Neuberger allows the appeal for the same reasons. It would be an inappropriate restriction on freedom of expression to restrain publication of a book simply because another, to whom the book is not directed, might suffer psychological harm from reading it [97]. He adds some further remarks as to the scope of the tort in Wilkinson v Downton [101 121].
A mother appeals against an order of the English Court of Appeal that she should immediately return her son, WS (hereafter W), who is aged two, to Australia. The order was made pursuant to Article 12 of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention) and to section 1(2) of the Child Abduction and Custody Act 1985, which incorporates the Convention into domestic law [1]. The mother is British, with Australian citizenship; the father is Australian [4]. The parents, who were not married, lived with W in Sydney [4]. In 2005 the mother had moved to Australia with her British husband; her marriage failed and she was divorced in 2008 [8]. In October 2008 Ws parents began to cohabit [8]. Between 1994 and 1998 the father had been a heroin addict and unfortunately, the beginning of their relationship and of the mothers pregnancy in February 2009, was a period of impending financial disaster for him, which ended in the collapse of his business with massive debts [9]. The father later took work as an estate agent, but contributed little to the household expenditure, which was largely met by the mother who was employed as a specialist clinical nurse [9]. The grave financial problems led to serious alcohol and drug relapses on the fathers part between 2009 and 2011 [10]. The mother suffered mental health problems, including anxiety and depression relating to separation from her husband in 2007, for which she took medication until she became pregnant in 2009 [17]. From June 2010 the mother had had extensive psychotherapy in Australia, which continued after her return to the UK [17], for a chronic anxiety condition [18]. In January 2011 the relationship between the parents began to break down. On 19 January 2011 the mother contends that she found the father injecting himself in the car in the garage and so she called the police and told him not to enter the flat again; the father admits only to drinking that day [11], although subsequently in reply to emails from the mother he did not deny the drug taking [11]. In light of the many text and emails that were to pass between the parents from January and June 2011, the mothers serious allegations against the father were admitted or could not be realistically be denied [7]. On 27 January 2011 the Australian police obtained on the mothers behalf, without notice, an Apprehended Violence Order (similar to a non molestation order) [12]. On 2 February 2011 the mother removed W to England, without the fathers consent or the permission of an Australian court. The removal was therefore in breach of the fathers rights of custody under Australian law and so it was wrongful for the purpose of Article 3 of the Convention. The only defence raised by the mother to the fathers application for an order for the summary return of W to Australia under the Convention was under Article 13(b) that there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation [5]. The evidence of the mothers psychologist was that, in the event of a return of W, with the mother, to Australia, her fear of the fathers mental state and of his impulsive actions towards her together with the stress of isolation in Australia from her family would be likely to cause clinical depression, which in turn could diminish her secure attachment to W [18]. Further evidence from the jointly instructed psychiatrist was that the mother had suffered from Battered Womens Syndrome, a form of Post Traumatic Stress Disorder, followed by an acute stress reaction [25]. The psychiatrist appeared to consider that the necessary protective measures mainly comprised treatment for the father, but his evidence could, however, have been clearer on whether the protective measures suggested by the father would, in the event of return, protect W against the risk of physical or psychological harm [26]. At first instance, Charles J had declined to order Ws return to Australia. The Court of Appeal ordered Ws immediate return. The issue in this appeal was whether that Court should have proceeded on the basis that that there were nothing more than disputed allegations to support the mothers defence. A question also arose about the correct approach to the subjective perceptions of risk held by a parent. The Supreme Court unanimously allows the mothers appeal; Lord Wilson gives the judgment of the Court. In Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 the Supreme Court held that the terms of Article 13(b) of the Convention were plain, that they needed neither elaboration nor gloss; and that, by themselves, they demonstrated the restricted availability of the defence [6]. In that case, the Court held that where disputed allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would placed in an intolerable situation; and if so, the court must then ask how the child can be protected against the risk [20]. If the child cannot be protected, the court should seek to determine the truth of the disputed allegations. Following a careful appraisal of the documentary evidence, Charles J had held that a number of serious allegations made by the mother against the father were admitted or could not sensibly be denied and that, in respect of her other allegations, she had made out a good prima facie case that she was the victim of significant abuse at the hands of the father [29]. In light of this conclusion, it was unnecessary for Charles J to continue to address the mothers subjective perceptions, as her anxieties had been based on objective reality [29]. The Court of Appeal referred briefly to the nature of the parents relationship but did not refer to the many facts that provided the foundation of the mothers defence [30 31]. The Court of Appeal failed to appreciate that the mothers fears about the fathers likely conduct rested on more than disputed allegations and to have regard to the importance of the medical evidence [35]. The Court of Appeal had specified the crucial question as being whether the mothers anxieties were realistically and reasonably held. In In re E, however, the court held that a defence under Article 13(b) could be founded upon the anxieties of a parent about a return with the child to the state of habitual residence, which were not based upon objective risk to her, but were nevertheless of such intensity as to be likely to destabilise the parenting of that child to the point at which the childs situation would become intolerable [27]. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk and will also ask whether they can be dispelled [27]. The critical question is what will happen if the parent and child are returned [34]. If, upon return, the parent will suffer such anxieties that their effect on the parents mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the parents anxieties will be reasonable or unreasonable. The extent to which there will be good cause for those anxieties will nevertheless be relevant to the courts assessment of the parents mental state if the child is returned [34]. The judgment as to the level of risk had been one for the judge at first instance, and should not have been overturned unless, whether by reference to the law or to the evidence, it had not been open to the judge to make it [35]. Charles J had been entitled to hold that the interim protective measures offered by the father in the event of a return to Australia did not obviate the grave risk to W and it was not open to the Court of Appeal to substitute its contrary view [35]. In the recent case of X v Latvia (Application no. 27853/09) the ECtHR (Third Section) had reiterated its apparent suggestion in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122 that in a Hague Convention case an in depth examination of the issues was mandated by the parties Article 8 ECHR rights to respect for family and private life. The Supreme Court considers that neither the Convention nor, surely, the ECHR requires such an in depth examination.
The issue in this appeal is whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces (the smoking ban), contained in Chapter 1 of Part 1 of the Health Act 2006 (the Act). The issue affects all those residing in, employed to work at or visiting any Crown premises, including prisons. Mr Black is serving an indeterminate sentence of imprisonment at HMP Wymott. He is a non smoker, with a number of health problems exacerbated by tobacco smoke, and he complains that the smoking ban is not being properly enforced in the common parts of the prison. He issued proceedings for judicial review of the Secretary of States refusal to provide confidential and anonymous access to the National Health Service Smoke free Compliance Line to prisoners. This would enable prisoners to report breaches of the smoking ban to the local authority charged with enforcing it, provided that the smoking ban applied to Crown premises. Mr Black succeeded in the High Court, which held that the smoking ban did bind the Crown. The Secretary of State appealed successfully to the Court of Appeal, which reversed the decision, holding that the Crown was not bound. The Supreme Court unanimously dismisses the appeal. It holds that Parliament must have intended that the Crown should not be bound by the smoking ban, since it would otherwise have made express provision for it in the Act. Lady Hale gives the only reasoned judgment, with which all the other justices agree. The classic rule is that a statutory provision does not bind the Crown save by express words or necessary implication [22]. This is so well established that many statutes will have been drafted and passed on this basis. Any decision of the Supreme Court to abolish this rule or reverse the presumption would operate retrospectively. It should not therefore do so, although Parliament, perhaps with the assistance of the Law Commission, is urged to give careful consideration to the merits of abolishing the rule [35]. The rule is not an immunity from liability, but a rule of statutory interpretation. The goal of all statutory interpretation is to discover the intention of the legislation, gathered from the words used in the statute in the light of their context and purpose. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context, including its purpose. It is not enough that a statute is intended for the public good, or that it would be even more beneficial for the public if the Crown were bound. It is not, however, necessary that the purpose of the legislation would be wholly frustrated if the Crown were not bound; it is enough if an important purpose of the statute would have been frustrated. The court may take into account the extent to which the Crown is likely voluntarily to take action to achieve the purpose of the statute [36]. The test to be applied in this case is therefore whether, in the light of the words used, their context and the purpose of the legislation, Parliament must have meant the Crown to be bound by the smoking ban in the Act [37]. There is no hint in the government publications preceding the Act that the Crown would not be bound by the smoking ban. It is intended to protect workers and visitors from the dangers of exposure to second hand smoke when reliance on voluntary measures has not proved effective, and omitting Crown premises would deny statutory protection to many people [38]. There are significant differences between the enforcement of the smoking ban by environmental health officers under the Act and a voluntary ban on government premises, which can only be enforced through far less effective proceedings brought by individuals [39 40]. Notwithstanding these factors, however, there are powerful indicators in the language of the Act itself that the Crown is not to be bound by the smoking ban: The Act does not say the smoking ban binds the Crown, as it could easily have done [43]; This contrasts with similar statutes, such as the Health and Safety at Work Act 1974, which contain express provisions on how and to what extent they apply to the Crown [44 45]; The Act itself has just such a provision in another Part, relating to the supervision of management and use of controlled drugs [46]; Almost identical provision to that is also made in the statute enacting the Scottish equivalent to the smoking ban, which shortly preceded the Act [47]; and Even if it was desirable for the smoking ban to bind the Crown, the legislation is quite workable without this. The Crown could do a great deal by voluntary action to fill the gap [49]. Accordingly, the fact that where Parliament did mean to bind the Crown in the Act, it expressly said so and made tailored provision, is conclusive of the question of its lack of intention in relation to the smoking ban. With considerable reluctance, the Supreme Court therefore dismisses the appeal [50].
The Legal Services Board (the Board) supervises approved regulators of persons carrying on legal activities, including the Bar Standards Board (BSB), the Solicitors Regulation Authority (SRA) and the ILEX Professional Standards Board (IPS). On 26 July 2013 the Board granted an application by the BSB, SRA and IPS for approval of alterations to their regulatory arrangements to give effect to the Quality Assurance Scheme for Advocates (the scheme). In making its decision the Board had regard to the Better Regulation Principles in section 3(3)(a) of the Legal Services Act 2007: regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed. It noted concerns about standards of criminal advocacy and evidence pointing to a risk of advocacy not being of the required standard. The scheme provides for the assessment of criminal advocates in England and Wales by judges. Full accreditation for criminal work at one of the upper levels depends on an assessment as competent by a trial judge. The appellants, barristers practising criminal law, sought judicial review of the Boards decision on various grounds, all unsuccessful in the courts below. Permission to appeal to the Supreme Court was granted on the single question of whether the decision was contrary to regulation 14 of the Provision of Service Regulations 2009, which the Board considered did not apply. The Regulations implement Directive 2006/123/EC on services in the internal market. Regulation 14 is nearly identical to article 9(1) of the Directive. It provides: (1) A competent authority must not make access to, or the exercise of, a service activity subject to an authorisation scheme unless the following conditions are satisfied. (2) The conditions are that (a) the authorisation scheme does not discriminate against a provider of the service, (b) the need for an authorisation scheme is justified by an overriding reason relating to the public interest, and (c) the objective pursued cannot be attained by means of a less restrictive measure, in particular because inspection after commencement of the service activity would take place too late to be genuinely effective. The Supreme Court unanimously dismisses the appeal. Lord Reed and Lord Toulson give a joint judgment with which Lord Neuberger, Lady Hale and Lord Clarke agree Lord Reed and Lord Toulson consider the appellants submissions that the scheme fails to meet the conditions set out in regulation 14(2)(b) and (c) on the hypothesis that the Directive (and therefore the Regulations) applies to the scheme. [21, 118] They review the case law of the Court of Justice of the European Union (CJEU) on the principle of proportionality. This principle is given effect in the Directive in article 9(1)(c) from which regulation 14(2)(c) is derived. [22 82] Lord Reed and Lord Toulson reason that the issue is whether the legitimate and important objectives of protecting recipients of the services in question, and the sound administration of justice, justify the scheme in the form approved by the Board. Judicial assessment is automatic in relation to all advocates, and is carried out in order to decide whether full accreditation should be granted, for renewal of accreditation and for progression to higher levels. The BSB had previously suggested an alternative proposal whereby judicial assessment would take place only if concerns were raised about a particular advocate, through a rolling programme of judicial assessment. The critical question is whether the objectives cannot be attained by means of a less restrictive measure. [93 97] The proper basis for considering the requirement of article 9(1)(c) of the Directive and regulation 14(2)(c) is: (1) it is for the court to decide whether the scheme is proportionate, (2) it should approach the matter in the same way in which the CJEU would approach the issue in enforcement proceedings, (3) the court must decide whether the Board has established that the objectives cannot be attained by means of a less restrictive scheme, (4) that does not involve asking whether the Boards judgment was manifestly wrong, (5) in considering the question of necessity arising under article 9(1)(c), it should be borne in mind that EU law permits member states to exercise a margin of appreciation as to the level of protection to be afforded to the public interest pursued, and to exercise discretion as to the choice of means of protecting such an interest. [108] The Board noted the potentially serious consequences of poor advocacy and considered that a scheme applicable to advocates generally was justified in view of the gravity of the risk. It also noted that the scheme was to be reviewed after two years. [110 111] The core feature of the scheme was that every criminal advocate who wishes to practise at one of the upper levels must undertake judicial assessment at the outset. A precautionary scheme of this kind provides a high level of public protection and places a corresponding burden on those affected by it. Whether such a level of protection should be provided is exactly the sort of question about which the national decision maker is allowed to exercise its judgment. [114 116, 64 65] In Lord Reed and Lord Toulsons opinion, the Boards judgment that the level of risk presented by a self certifying scheme, such as the BSBs previous proposal, was unacceptable, did not fall outside the appropriate margin of appreciation. Since the only way of providing the desired level of protection was to have a comprehensive assessment scheme, it followed that such a scheme was proportionate to the aims pursued. Therefore, the Supreme Court dismisses the appeal.
This appeal concerns the law on discrimination. Mr and Mrs Bull, the Appellants, own a private hotel in Cornwall. They are committed Christians, who sincerely believe that sexual intercourse outside traditional marriage is sinful. They operate a policy at their hotel, stated on their on line booking form, that double bedrooms are available only to heterosexual married couples. The Respondents, Mr Hall and Mr Preddy, are a homosexual couple in a civil partnership. On 4 September 2008 Mr Preddy booked, by telephone, a double room at the Appellants hotel for the nights of 5 and 6 September. By an oversight, Mrs Bull did not inform him of the Appellants policy. On arrival at the hotel, Mr Hall and Mr Preddy were informed that they could not stay in a double bedroom. They found this very hurtful, protested, and left to find alternative accommodation. In March 2009 the Respondents, supported by the Equality and Human Rights Commission, brought proceedings against the Appellants under the Equality Act (Sexual Orientation) Regulations 2007 (EASOR). Regulation 4 EASOR makes direct or unjustified indirect discrimination on the grounds of sexual orientation unlawful. Regulation 3 EASOR defines discrimination. Regulation 3(1) states that direct discrimination exists where person A treats person B less favourably then others on the ground of Bs sexual orientation. Regulation 3(3) states that indirect discrimination exists when person A applies a general policy or practice to person B and others not of Bs sexual orientation, which puts B at a particular disadvantage compared to those others, and the policy or practice is not reasonably justified by reference to matters other than Bs sexual orientation. Regulation 3(4) provides that for Regulations 3(1) and 3(3), civil partnership and marriage are not to be treated as materially different. The Respondents argued that the refusal to provide them with a double bedroom was unlawful under Regulation 4 EASOR. The Appellants contended that their actions did not constitute discrimination under either Regulation 3(1) or 3(3) EASOR since they differentiated not on the basis of sexual orientation, but on marital status. They also suggested that EASOR should be applied compatibly with their right to manifest their religious beliefs under Article 9 of the European Convention on Human Rights (ECHR). In the Bristol County Court, the judge held that the Appellants actions directly discriminated against the Respondents under Regulation 3(1). The Court of Appeal unanimously dismissed the appeal against the judges decision. Mr and Mrs Bull appealed to the Supreme Court. They argued that (i) their policy did not constitute direct discrimination under Regulation 3(1) (direct discrimination); (ii) that their policy did constitute indirect discrimination, but that that indirect discrimination was justified (indirect discrimination); and (iii) that if their policy did contravene EASOR, EASOR should be read and given effect compatibly with their Article 9 ECHR right of freedom to manifest their religion (the ECHR issue). The Supreme Court unanimously dismisses the appeal. The leading judgment is given by Lady Hale, with supplementary judgments from all other members of the Court. On point (i) direct discrimination, Lady Hale, Lord Kerr and Lord Toulson hold that the Appellants policy constituted direct discrimination on grounds of sexual orientation. On point (ii) indirect discrimination the Court unanimously holds that if (as Lord Neuberger and Lord Hughes consider) the Appellants policy constitutes indirect discrimination, it is not justified. On point (iii) the ECHR issue, the Court unanimously holds that EASOR engages Article 9 ECHR, but is a justified and proportionate protection of the rights of others. There is therefore no breach of Article 9 ECHR which would require EASOR to be read down in the way the Appellants suggest. (i) Direct discrimination. According to Lady Hale and Lord Toulson: the Appellants concept of marriage was the Christian concept of the union of one man and one woman [25]. Civil partnership is a status akin to marriage, and the criteria of marriage and civil partnership are indissociable from the sexual orientation of those qualifying for the particular statuses [29, 67]. All married couples would be permitted a double bedroom by the Appellants, while no civilly partnered couples would be [29]. Regulation 3(4) reinforces this conclusion [26, 70]. The Courts judgment does not favour sexual orientation over religious belief: had the Respondents refused hotel rooms to the Appellants because of the Appellants Christian beliefs, the Appellants would equally have been protected by the laws prohibition of discrimination [54]. According to Lord Kerr: but for Regulation 3(4), the discrimination would have been indirect. The relevance of Regulation 3(4) is that the Respondents were to be treated as not materially different from a married couple [57 59]. Given that, the only remaining reason for the Respondents treatment by the Appellants was their sexual orientation [60]. Lord Neuberger and Lord Hughes reach a different conclusion. It is correct that, had the case concerned only discrimination against the unmarried, the Appellants would have discriminated only indirectly [74]. However, the Respondents civil partnership does not convert this into direct discrimination [75, 87]. The Appellants would have treated an unmarried heterosexual couple in precisely the same way that they treated the Respondents [77, 90 91]. Regulation 3(4) does not provide the answer to the question whether the Appellants treatment of the Respondents was on grounds of their sexual orientation [78, 92]. (ii) Indirect discrimination. The Appellants accepted that their policy constituted indirect discrimination [33]. The question was whether it was justified. It was difficult to see how As belief that sexual intercourse between civil partners is sinful could be justified by reference to matters other than Bs sexual orientation, since definitionally such intercourse was between those of the same sexual orientation [35]. Moreover, it is in the public interest to encourage stable, committed, long term relationships, whether homosexual or heterosexual [36]. The purpose of EASOR was to secure that those of homosexual orientation were treated equally. There was a carefully tailored exemption for religious organisations in Regulation 14 EASOR, which did not extend to the Appellants [38]. (iii) The ECHR issue. The Appellants rights under Article 9(1), which protects the manifestation of religious belief, are engaged [44]. However, EASORs interference with those rights is justified as a proportional means of achieving a legitimate aim: the protection of the rights and freedoms of people such as the Respondents [51]. There was therefore no need to read down EASOR [42].
John Walker, the appellant in these proceedings worked for the respondent, Innospec Ltd, from 1980 until his retirement in 2003. Throughout that time he made regular contributions to the firms occupational pension scheme. Mr Walker is gay and has lived with his male partner since 1993. They entered into a civil partnership on 23 January 2006 and are now married. In 2006 Mr Walker asked Innospec to confirm that, in the event of his death, they would pay the spouses pension, which the scheme provides for, to his civil partner. Innospec refused, because his service predated 5 December 2005, the date that civil partnerships were introduced in the UK, and any discriminatory treatment is therefore permitted under paragraph 18 of Schedule 9 to the Equality Act 2010. This provides that it is lawful to discriminate against an employee who is in a civil partnership or same sex marriage by preventing or restricting them from having access to a benefit, facility or service the right to which accrued before 5 December 2005 or which is payable in respect of periods of service before that date. If Mr Walker was married to a woman (or indeed if he married a woman in the future) she would be entitled on his death to a spouses pension of about 45,700 per annum. As things stand at present, Mr Walkers husband will be entitled to a pension of about 1,000 per annum (the statutory guaranteed minimum). Mr Walkers claim for discrimination was upheld by the Employment Tribunal, but Innospecs appeal to the Employment Appeals Tribunal was allowed, and Mr Walkers appeal to the Court of Appeal was dismissed. He now appeals to the Supreme Court. The Supreme Court unanimously allows Mr Walkers appeal and makes a declaration that (i) paragraph 18 of Schedule 9 to the Equality Act 2010 is incompatible with EU law and must be disapplied and (ii) Mr Walkers husband is entitled on his death to a spouses pension, provided they remain married. Lord Kerr (with whom Lady Hale and Lord Reed agree) gives the lead judgment. Lord Carnwath and Lord Hughes give a judgment concurring in part. EU Directive 2000/78/EC (the Framework Directive) requires member states to prohibit discrimination in the field of employment and occupation on various grounds including sexual orientation. The deadline for transposing the Directive into domestic law was 2 December 2003 and the UK did this within the deadline through legislation now incorporated into Part 5 of the Equality Act 2010 [17]. Parliament also, however, provided for the exception now contained in paragraph 18 of Schedule 9 to the 2010 Act restricting benefits payable in respect of periods of service before 5 December 2005. The essential question in this appeal is whether paragraph 18 of Schedule 9 is incompatible with the Framework Directive [20 21]. Although EU law does not impose any requirement on member states to recognise same sex partnerships, the European Court of Justice (CJEU) has held that if a status equivalent to marriage is available under national law, it is directly discriminatory contrary to the Framework Directive for an employer to treat a same sex partner who is in such a partnership less favourably than an opposite sex spouse. In the UK, Parliament has chosen to recognise same sex partnerships, first through the introduction of civil partnerships and subsequently through the recognition of same sex marriage itself [17 19]. The general rule under EU law, as in most modern legal systems, is that legislative changes apply prospectively. The CJEU has developed two principles to establish the temporal application of EU legislation the no retroactivity principle and the future effects principle [22 23]. These principles draw a distinction between the retroactive application of legislation to past situations (which is prohibited unless expressly provided for) and its immediate application to continuing situations (which is generally permitted). The relevant question is whether the legal situation has become permanently fixed [25]. The application of these principles presents a challenge when one is dealing with entitlement to an occupational retirement pension, the right to which may accumulate over decades and it may not be easy to identify the point at which it becomes permanently fixed [26]. The Court of Appeal, in dismissing Mr Walkers appeal, wrongly concluded that entitlement to a survivors pension is permanently fixed at the date of retirement [43]. It was influenced in this view by a line of the CJEUs case law exceptionally limiting the temporal application of one of its judgments relating to equal pay for men and women (the Barber line of case law). In the opinion of the majority of the Court, these cases are not relevant to the application of the Framework Directive in a case such as this. How the CJEU exceptionally applies a temporal limitation to one of its rulings has no inevitable bearing on the temporal application of legislation as a matter of principle [46]. In any event, two recent decisions of the Grand Chamber of the CJEU concerning the equal treatment rights of same sex partners to survivors pensions put success for Mr Walkers claim beyond doubt (Case C 267/06 Maruko v Versorgungsanstalt der Deutschen Bhnen and Case C 147/08 Rmer v Freie und Hansestadt Hamburg) [46]. From these cases, it is clear that, unless evidence establishes that there would be unacceptable economic or social consequences of giving effect to Mr Walkers entitlement to a survivors pension for his husband, at the time that this pension would fall due, there is no reason that he should be subjected to unequal treatment as to the payment of that pension [55]. Mr Walkers husband, provided he does not predecease him, and that they remain married at the time of Mr Walkers death, is therefore entitled under the Framework Directive to a spouses pension calculated on the basis of all the years of Mr Walkers service with Innospec. On that account, paragraph 18 of Schedule 9, in so far as it authorises a restriction of payment of benefits based on periods of service before 5 December 2005, is incompatible with the Framework Directive and must be disapplied [77]. Lord Carnwath and Lord Hughes agree with the majority that Mr Walkers appeal should be allowed, but on the more limited basis that the question of who qualified as his spouse fell to be determined after the Directive had come into force. They prefer to leave the broader question of whether the Barber line of case law is of any relevance to the application of the Framework Directive to be determined by the CJEU in OBrien v Ministry of Justice [2017] UKSC 46, in which the Court has decided to refer to the CJEU a question relating to the pension entitlement of part time workers [77 78].
These appeals arise out of a dispute between British Telecommunications Plc (BT), and four mobile network operators. The dispute is about the termination charges which BT is entitled to charge to mobile network operators for putting calls from the latters networks through to BT fixed lines with associated non geographic numbers beginning in 08. In 2009 BT notified mobile network operators of a proposal of a revised scheme of termination charges for 08 numbers. The defining feature of the new scheme was that mobile network operators would be charged at a rate which varied according to the amount which the originating network charged the caller. The higher the charges to the caller, the greater the termination charge. The new scheme was rejected by the four mobile net operators party to these appeals. The issue was submitted to the Office of Communications (Ofcom) under a statutory dispute resolution procedure. A decision of Ofcom can be appealed to the Competition Appeal Tribunal (CAT). Appeals from the CAT to the Court of Appeal can be brought on points of law only. Ofcom decided that BT should not be allowed to introduce the new charging scheme because the charges were not fair and reasonable. This conclusion was based on Ofcoms view that the proposed changes were not sufficiently likely to provide benefits to consumers (the welfare test). The CAT overturned Ofcoms decision and decided that BT should be able to introduce the new regime. The Court of Appeal restored the original decision of Ofcom. The Supreme Court unanimously allows the appeal and restores the order of the CAT. Lord Sumption gives the judgment of the court. The Court of Appeal, finding that it was for BT to justify its charges, had rejected the CATs determination for three reasons, each of which the Supreme Court addresses in its judgment. First, the Court of Appeal held that the CAT had been wrong to treat BT as having a prima facie right to change its charges, which needed to be displaced. It found that BT had no more than a right to do so subject to the determination of Ofcom if another party objected [30]. The Supreme Court notes that where, as in this case, Ofcom is resolving a dispute about a proposed variation of charges under an existing interconnection agreement, it is performing a mixture of adjudicatory and regulatory functions. The terms of the interconnection agreement are the necessary starting point for this process. Where the terms of the contract permit variation, Ofcom should give effect to that variation unless it would be inconsistent with its regulatory objectives, including under the welfare test [31 34]. Clause 12 of BTs Standard Interconnect Agreement confers a discretion on BT to unilaterally fix or vary its charges, but only within the limits fixed by the objectives of the regulatory environment imposed on it [3637]. BTs power to set its own charges is subject to any order, direction, determination or consent of Ofcom. However, Ofcom could not just do what it liked. Its function was to determine whether BT had exceeded the limits of its contractual discretion [38]. In this case, Ofcom has not found that the variation to the charges was inconsistent with the regulatory objectives, including the welfare test. Ofcom cannot reject the proposed charges simply because they might have adverse consequences for consumers, in the absence of any reason to think that they would [4244]. Secondly, the Court of Appeal held that the CAT had been wrong to attach weight to their view that a restraint on BTs freedom to set its own charges would itself distort competition. The Supreme Court disagrees with the Court of Appeal for three reasons. First, Ofcom was not exercising a regulatory function, but resolving a dispute under the unchallenged terms of an existing agreement. Secondly, the CAT was entitled to attach weight to the value of innovative charging structures as a form of competition. Thirdly, the CATs conclusion about the anti competitive effects of restricting price changes was a factual judgment. Since appeal lay to the Court of Appeal only on points of law, the CATs findings on the distortion of competition liable to result from the rejection of the new charging structure were not open to appeal [4647]. The Court of Appeal held that the CAT had been wrong to attach weight to the fact that BT, not having significant market power in a relevant market, was not subject to ex ante control of its prices on competition grounds. Given the reasoning on the other points, the Supreme Court considers it unnecessary to address this point in detail. It does however note that the fact that BT does not have significant market power in a relevant market does not mean that the promotion of competition is irrelevant to a dispute about charges. It only means that Ofcom may not exercise its regulatory power to control prices [4849].
The respondents are three Swiss or German companies which design, manufacture and sell luxury goods under well known trade marks. The appellants are the five largest internet service providers (ISPs) serving the UK. The respondents sought injunctions requiring the ISPs to block or attempt to block access to specified target websites, which were advertising and selling counterfeit copies of the respondents goods, in addition to various other internet addresses whose purpose is to enable access to a target website. The ISPs provide networks by which subscribers access content, but they neither provide nor store content. They do not themselves infringe the relevant trade marks. The judge granted the injunction and ordered the ISPs to pay the costs, including the costs of implementing the website blocking order. The Court of Appeal dismissed the ISPs appeal. This appeal to the Supreme Court is concerned only with costs. The main issue whether the respondents should have been required to bear various costs of implementing the website blocking order. The Supreme Court unanimously allows the appeal, so far as concerns the cost of complying with the injunction. The respondents will be ordered to indemnify the ISPs for the disputed implementation costs, but the judge was entitled to order the ISPs to pay the litigation costs. Lord Sumption gives the judgment, with which the other Justices agree. The English courts have long had jurisdiction in certain circumstances to order innocent parties to assist those whose rights have been invaded by a wrongdoer. That includes the jurisdiction exercised in Norwich Pharmacal Co v Customs and Excise Coms [1974] AC 133 which is commonly exercised for the purpose of assisting claimants to bring or maintain proceedings against wrongdoers, generally by ordering innocent intermediaries to provide information. The ordinary rule is that the intermediary is entitled to the costs of compliance with a Norwich Pharmacal order. Orders for the disclosure of information are only one category of order which can be made against a third party to prevent the use of his facilities for wrongdoing [8 12]. National laws concerning intellectual property rights are partially harmonised by a series of EU Directives, of which three are relevant: the E Commerce Directive 2000/31/EC, the Information Security Directive 2001/29/EC and the Enforcement Directive 2004/48/EC. The E Commerce Directive requires Member States to introduce limitations of liability (safe harbours) in respect of certain activities undertaken by information society services, which include ISPs [16 17]. None of the Directives deals expressly with the costs of enforcing a judicial remedy, as between the rights holder and an information society service [28]. In the Court of Appeal, Kitchen LJ viewed the recitals to the E Commerce Directive as implicitly supporting an order for the intermediary to bear the implementation costs. He suggested that, under the Directives, liability for the costs of compliance was the quid pro quo of the immunities and the absence of any general obligation owed by ISPs to monitor information which they transmit or store. Kitchen LJ found support for his analysis in the reasons of the Court of Justice of the EU (CJEU) in LOral SA v eBay International AG (Case C 324/09) [2012] Bus LR 1369 and UPC Telekabel Wien GmbH v Constantin Film Verleigh GmbH (Case C 314/12) [2014] Bus LR 541 [28 29]. The Supreme Court disagrees. First, the recitals refer the terms of an injunction against an intermediary to national law, without any further guidance [30(1)]. Second, the quid pro quo argument assumes what it seeks to prove: the Directives do not deal at all with the costs of complying with an injunction against an intermediary, so there is nothing from which such an inference could be drawn [30(2)]. Third, the rationale of the immunities, as explained in the recitals, is that disparities between national laws on liability can distort the functioning of the single market, and that the intermediaries have little or no control over content. It has nothing to do with the incidence of compliance costs when an injunction is granted [30(3)]. Fourth, the CJEU authorities say nothing about the incidence of compliance costs but only that, so far as they are to be borne by the intermediary, they must not be excessive [30(4), (5)]. The incidence of compliance costs is a matter for English law, within the broad limits set by the EU principles of effectiveness and equivalence, and the requirement that any remedy should be fair proportionate and not unnecessarily costly. In English law, the incidence of costs generally depends on the legal distribution of risk as found by the court. An innocent intermediary is ordinarily entitled to be indemnified by the rights holder against the costs of complying with a website blocking order. That is no different in principle from the established position in domestic law in the case of other orders granted to require an innocent party to assist the claimant against a wrongdoer. An ISP serving as a mere conduit would not incur liability for trade mark infringement under English law even in the absence of the safe harbour provisions. There is no legal basis for requiring a party to shoulder the burden of remedying an injustice if he has no legal responsibility and is acting under the compulsion of an order of the court [31 33]. It has sometimes been suggested that because ISPs benefit financially from the volume and appeal of the content available on the internet, including content which infringes intellectual property rights, it is fair to make them contribute to the cost of enforcement. That assumes a degree of responsibility on the part of the intermediary which does not correspond to any legal standard. The law is not generally concerned with moral or commercial responsibilities except as an arguable basis for legal ones. Even if a moral or commercial responsibility were relevant, it would be hard to discern one in a case like this. Website blocking injunctions are sought by rights holders in their own commercial interest. There is no reason why the rights holder should be entitled to look for a contribution to the cost of defending his rights from anyone other than the infringers [34 35]. It follows that in principle the rights holders should indemnify the ISPs for the compliance costs, subject to the limits on relief set by EU law. There is no reason to believe that such an indemnity, which must be limited to reasonable costs, would exceed those limits. The costs are not excessive, disproportionate or such as to impair the respondents ability to enforce their rights. Critically, the intermediary in this case is legally innocent. Different considerations may apply to those engaging in caching or hosting, which involve greater participation in the infringement and which are more likely to infringe national intellectual property laws if safe harbour immunity is unavailable [36 37]. As to the costs of the litigation, the judge awarded them against the ISPs because, unusually, they had made the litigation a test case and had strenuously resisted the application. He was plainly entitled to do so [38].
Aspect Contracts (Asbestos) Limited (Aspect) contracted with Higgins Construction Plc (Higgins) to survey and report on a block of maisonettes which Higgins was considering redeveloping. Aspects report was dated 27 April 2004. During the redevelopment in 2005, Higgins discovered asbestos not identified in Aspects report and a dispute arose between the parties [1 2]. The contract contained an implied term (under sections 108 and 114 of the Housing Grants, Construction and Regeneration Act 1996, read with The Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998 No 649)) enabling disputes to be referred to adjudication [1]. Higgins referred the dispute to adjudication and claimed 822,482 plus interest for breach of Aspects contractual and/or tortious duties to exercise reasonable skill and care in carrying out the survey. On 20 July 2009, the adjudicator found that Aspect had been in breach of such duties and awarded Higgins 490,627 plus interest. Aspect duly paid Higgins 658,017 on 6 August 2009 [3]. It was also an implied term of the contract, under sections 108(3) of the 1996 Act and paragraph 23(2) of the 1998 Regulations, that the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration or by agreement. The parties did not agree to treat the adjudicators decision as final. Higgins did not commence any proceedings to recover the 331,855 balance of its claims. The limitation period for any such claim by Higgins expired in contract on or about 27 April 2010, and in tort by early 2011 [4]. On 3 April 2012 Aspect issued proceedings to recover the sum it had paid to Higgins, claiming that no payment had been due to Higgins on the merits of the original dispute. Higgins then sought to counterclaim the 331,855 balance of its original claims. Aspect responded that any such counterclaim became time barred after six years in 2010 or latest 2011. The High Court (Akenhead J) rejected Aspects claim on the basis that there was no implied term for repayment and no entitlement to restitution after the expiry in 2010 or 2011 of a six year limitation period during which Aspect could have claimed a declaration of non liability with consequential relief. The Court of Appeal allowed Aspects appeal on the basis that the contract contained an implied term for repayment by Higgins of any sum paid by Aspect which Aspect could show had not been due on the merits, and that this attracted a six year limitation period running from the date of Aspects payment. The alternative restitutionary basis was not pursued by Aspect in the Court of Appeal. Both courts held Higgins counterclaim for 331,855 to be time barred. Permission having been granted to Higgins to appeal to the Supreme Court, the Supreme Court invited submissions on restitution as well as on the implied term. The Supreme Court unanimously dismisses Higgins appeal in a judgment given by Lord Mance. The Court concludes that: (1) Adjudication is intended to be a speedy provisional measure, pending final determination. The decision of an adjudicator is binding from the time it is given, but lasts only until the dispute is finally determined by one of the ways identified in paragraph 23(2) of 1998 the Regulations or section 108 of the 1996 Act [14 15]. (2) Higgins argument that Aspects only claim was for declaratory relief and consequential orders and that such relief is time barred in the same way as Higgins own counterclaim is misconceived. Consequential orders cannot be made for the repayment of money to which there is no independent basis for claiming [19 20]. (3) Aspect has an independent basis for having the original dispute finally determined, and for repayment, arising on an implied contractual or restitutionary basis. That right arises upon and from Aspects payment [16 17]. It was an implied contractual term that Aspect, having made payment as ordered by the adjudicator, would have a directly enforceable right to recover such payment if, on a final determination on the merits of the original dispute, those sums were shown not to have been due to Higgins [23]. Repayment can also be claimed by way of restitution, it being retrospectively established by final determination that the sums paid pursuant to the adjudication amounted to an overpayment [24]. (4) The limitation periods for Aspects claims in contract and restitution are six years from the date of payment [21 22] and [25]. Aspect can require repayment by reference to a determination of the parties original rights and liabilities as they stood when they were adjudicated upon. (5) Higgins on the other hand is time barred from pursuing its counterclaim for the balance of its original claim. This is the consequence of Higgins own decision not to commence legal proceedings to have the dispute finally determined within the limitation periods applicable to its claims [26 29 and 33]. (6) The Court of Appeals obiter observations in Walker Construction Ltd v Quayside Homes Ltd [2014] EWCA Civ 93, approving Akenhead Js decision in the present case, were wrong [34].
The appellant is a Sri Lankan national who arrived in the UK in January 2005 aged 28. He was given leave to enter as a student and his leave to remain was extended to 30 September 2008. His application for an extension was refused. He claimed asylum on 5 January 2009 on the grounds that he had been a member of the Liberation Tigers of Tamil Eelan (LTTE) and had been detained and tortured by Sri Lankan security forces. He contended that on return he was likely to suffer similar ill treatment. The issue is whether he is a person eligible for subsidiary protection under the EU Council Directive 2004/83/EC (the Qualification Directive). He is such a person if there are substantial grounds for believing that upon return to Sri Lanka he will face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself or herself the protection of that country (article 2(e)). Serious harm in this case means, under article 15(b), torture or inhuman or degrading treatment or punishment. On 23 February 2009 the Secretary of State for the Home Department refused his application for asylum on the basis that he would not be at risk of further ill treatment despite his membership of LTTE. The applicant appealed. The Upper Tribunal (UT) had evidence from a psychiatrist that he was suffering severe post traumatic stress disorder and severe depression and showed a high degree of suicidality. The UT accepted that the appellant had a genuine fear of return to Sri Lanka. It accepted that the mental health provision in Sri Lanka was insufficient. But it did not accept that he was of any continuing interest to the authorities in Sri Lanka. Therefore the UT rejected his appeal under the Qualification Directive. In the Court of Appeal, Maurice Kay LJ rejected his appeal on the basis that the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non state bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country (paragraph 43). The Appellant appealed to the Supreme Court on the grounds that this is too narrow a view of the scope of the Qualification Directive and that his mental illness should not be regarded as naturally occurring because it was caused at the hands of the Sri Lankan authorities. He argued it makes no difference to his entitlement to such protection that there is no longer a risk of repetition of the ill treatment which is the cause of his current state of health. None of the authorities from the Court of Justice of the European Union or the European Court of Human Rights are precisely on point [13]. Therefore the following question will be referred to the Court of Justice of the European Union: Does article 2(e), read with article 15(b), of the Qualification Directive cover a real risk of serious harm to the physical or psychological health of the applicant if returned to the country of origin, resulting from previous torture or inhuman or degrading treatment for which the country of origin was responsible?
This appeal concerns the limits of a local authoritys powers and duties to provide accommodation for children in need under section 20 of the Children Act 1989 (CA). The appellants are the parents of eight children, at the relevant time aged 14, 12, 11, 9, 7, 5, 2 and 8 months. On 5 July 2007 their 12 year old son was caught shoplifting. He told the police that he had no money for lunch and that his father had hit him with a belt. The police visited the familys home and found it in an unhygienic and dangerous state unfit for habitation by children. The police exercised their powers under s 46 CA to remove the children to suitable accommodation for a maximum of 72 hours. The children were provided with foster placements by the respondent local authority (the Council). The appellants were arrested and interviewed by the police, then released on police bail on condition that they could not have unsupervised contact with any of their children. The appellants were asked to sign a Safeguarding Agreement by the Council on 6 July 2007 by which they agreed that all the children would remain in their foster placements for the present time. They were not informed of their right, under s 20(7) CA to object to the childrens continued accommodation after the expiry of 72 hours, nor of their right, under s 20(8), to remove them at any time. On 13 July, solicitors instructed on their behalf gave formal notice of the appellants intention to withdraw consent. On 16 July the Council decided that the children should be returned home as soon as possible. However, it took until 6 September for the Council to arrange with the police for the bail conditions to be varied, whereupon the children returned home on 11 September 2007. Criminal proceedings against the appellants were later discontinued. In July 2013 the appellants issued proceedings claiming damages, amongst other things, for breach of their rights under article 8 of the European Convention on Human Rights. The High Court dismissed all the claims except for the article 8 claim, which was upheld on the basis that, because the parents had not given their informed consent, there had been no lawful basis for the accommodation of the children after 72 hours, so that the interference with family life was not in accordance with the law. The judge awarded each of the appellants damages of 10,000. The Court of Appeal allowed the Councils appeal, holding that consent was not required and that there had been a lawful basis for the childrens accommodation under s 20 CA, and the interference with their article 8 rights had been proportionate. The Supreme Court unanimously dismisses the appeal. It holds that the appellants did not object or unequivocally request the immediate return of the children, so there had been a lawful basis for the childrens continued accommodation under s 20 CA. Lady Hale gives the only substantive judgment. Local authorities in England look after a substantial number of children (over 70,000 in March 2017), either as part of a range of services provided for children in need, or under powers to intervene compulsorily to protect children from harm. Compulsory intervention by a local authority requires the sanction of a court process. No court order is required for the authority to provide accommodation for children in need under s 20 CA. However, it is subject to the right under s 20(7) for a person with parental responsibility for the child, who is willing and able to provide accommodation for him or arrange for accommodation for him, to object, and to the provision in s 20(8) that any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section [1 2]. In short, it is a voluntary service. If a parent delegates the exercise of his or her parental responsibility for a child to the local authority under s 20 CA, such delegation must be real and voluntary. The best way to ensure this is to inform the parent fully of their rights under s 20, although delegation can be real and voluntary without being informed [39]. No such delegation is required where the local authority steps into the breach to exercise its powers under s 20 where there is no one with parental responsibility for the child, the child is lost or abandoned, or the parent is not offering to look after the child. In those circumstances active delegation is not required [40]. If a parent with unrestricted parental responsibility objects at any time pursuant to s 20(7), the local authority may not accommodate the child under s 20, regardless of the suitability of the parent or of the accommodation which the parent wishes to arrange [42 43, 47]. It is not a breach of s 20 to keep a child in accommodation for a long period but a local authority must also think of the longer term and consider initiating care proceedings in order to fulfil its other duties under the CA, and to avoid breaches of the childs or the parents rights under article 8 [49 52]. In the present case, where the s 20 arrangements replaced the compulsory police protection under s 46 without the children returning home in the meantime, the focus was not on the appellants delegation of parental responsibility to the Council, but on their rights under subsections 20(7) and 20(8) [53]. Entering into a safeguarding agreement was a matter of good practice, although it was important that it did not give the impression that the parents had no right to object or to remove the children [55]. The lawfulness of the s 20 accommodation depended on whether the appellants actions amounted to an unequivocal request for the children to be returned. The bail conditions were not an insuperable impediment to the request and were not a reason to refuse [57]. However, the letters from the appellants solicitors could not be read as an objection or as a request for immediate return: the solicitors were sensibly trying to achieve the return of the children as quickly as possible on a collaborative basis rather than push the Council into issuing care proceedings [59]. Although the Council could have provided earlier support for an application to lift the bail conditions, it was not possible to say what effect this would have had, given the independent concerns of the police [60]. Accordingly, there was a lawful basis for the childrens continued accommodation under s 20 and the ground relied on by the judge for finding a breach of the appellants article 8 rights was not made out [61]. The question of whether the Councils actions were a proportionate interference with the right to respect for family life throughout the time the children were accommodated was not fully explored in the lower courts and was not raised as an issue before the Supreme Court [62]. The appeal is therefore dismissed, albeit for reasons which differ from those of the Court of Appeal [63].
Mr Lex Warner chartered a motor vessel operated by Scapa Flow Charters (SFC) for the week of 11 18 August 2012. On 14 August 2012, when dressed in diving gear while preparing to dive on a wreck northwest of the Cape Wrath, Mr Warner fell onto the deck of the vessel. He was helped to his feet and went ahead with the dive to a depth of 88 metres. He got into trouble during the dive and, despite the assistance of other divers who brought him back to the surface of the water and onto the motor vessel, he could not be revived and was pronounced dead. Mr Warners widow, Debbie Warner, raised an action against SFC in which she alleged that her husbands death was the result of SFCs negligence. She sought damages both as an individual and as a guardian of their young son, who had been born in November 2011. SFC lodged a defence that the action was time barred under the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (the Athens Convention), which, in the case of a death occurring during carriage, imposes a time bar of two years from the date on which the passenger would have disembarked. The parties agree that Mr Warner would have disembarked no later than 18 August 2012. However, the Athens Convention also provides that the law of the court seized of the case in this case, Scots law governs the grounds of suspension and interruption of limitation periods, but in no case can an action be brought after the expiration of a period of three years from the date on which the passenger would have disembarked: article 16(3). SFC contended that the Scots law of limitation enacted in section 18 of the Prescription and Limitation (Scotland) Act 1973 (the 1973 Act) does not contain such grounds of suspension and interruption as to extend the limitation period. It argued that section 18 of the 1973 Act postpones the start of the limitation period instead of interrupting or suspending it as the Athens Convention envisages. The Lord Ordinary upheld the time bar defence and dismissed the action. Mrs Warner appealed by reclaiming motion to the Inner House. The Inner House upheld the Lord Ordinarys opinion in relation to her claim as an individual but reversed his order in relation to her claim on behalf of her son, finding that her claim as guardian of her son was not time barred. SFC appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Hodge gives the sole judgment with which the other Justices agree. In interpreting an international convention, national courts must look at the objective meaning of the words used and the purpose of the convention as a whole [14]. Courts in the UK have adopted an approach to interpretation which respects the international character of such a document: the interpretation should not be rigidly controlled by domestic precedents of antecedent date, but rather the language should be construed on broad principles of general acceptation [15]. In carrying out this task, the courts can use as aids to interpretation the travaux prparatoires, the case law of foreign courts on the convention and the writing of jurists, but in respect of the Athens Convention, such aids do not provide assistance [17 18]. Therefore, the Supreme Court relies on the broad, generally accepted principles of interpretation [19]. The Court does not accept that the words suspension and interruption should have a technical meaning derived from certain civil law systems for the following three reasons [20]. Firstly, it is not appropriate to look to the domestic law of certain civil law systems for a technical meaning of the words in an international convention which was designed to operate in many common law systems as well [21]. Secondly, even within civil law systems and mixed legal systems, there was no uniformity in the use of the expression suspension when the Athens Convention was adopted [22]. Thirdly, an interpretation of article 16(3) of the Athens Convention as excluding domestic rules which have the effect of postponing the start of a limitation period would give rise to serious anomalies [28]. The Court therefore holds that the words the grounds of suspension of limitation periods are sufficiently wide to cover domestic rules which postpone the start of a limitation period as well as those which stop the clock after the limitation period has begun [30]. Second, the Court does not accept that the natural meaning of the words grounds of suspension and interruption of limitation periods is limited to grounds which give rise to a break in a period or course of events which is already in train. For instance, the dictionary definition of suspension referred to by SFC included postponement as one of its meanings, and suspension in the context of prescription or limitation has a broader meaning in several legal systems [32]. The Court also holds that it was unnecessary for the grounds of limitation in a domestic limitation regime to be framed to extend beyond their domestic scope so as to cover limitation periods in conventions such as the Athens Convention [33]. Therefore, the existence of a ground in a domestic limitation statute which suspends the limitation periods set out in that statute is sufficient to bring article 16(3) of the Athens Convention into operation and extend the time bar by one year [33]. The Court then considers whether section 18 of the 1973 Act does in fact extend the time bar in respect of Mrs Warners claim as guardian. Firstly, the Court observes that the 1973 Act does not postpone the start of the limitation period. Rather, section 18 of the 1973 Act postpones the expiry date of the limitation period: it instructs a court to disregard the time during which the pursuer of the action is under legal disability [37]. In any event, the Court does not accept that postponement of the start of a limitation period falls outside an international understanding of a suspension of limitation periods [37]. Secondly, the legal disability recognised by section 18 of the 1973 Act has the effect of suspending the running of time on the limitation period under the Athens Convention [38]. Thirdly, that suspension is subject to the long stop of three years, as set out in article 16(3) of the Athens Convention. The Court therefore concludes that Mrs Warners claim as her sons guardian is not time barred by the Athens Convention [40]. The Court dismisses the appeal [41].
In 2006, AIB Group (UK) plc (the Bank) agreed to lend Mr and Mrs Sondhi 3.3m to be secured by a first legal charge over their home, valued at 4.25m. This was on the condition that the existing first legal charge in favour of Barclays Bank plc (Barclays) (borrowings on Barclays accounts amounting to 1.5m) was to be redeemed on or before completion of the Banks mortgage advance. Mark Redler & Co Solicitors (the Solicitors), also acting for Mr and Mrs Sondhi, were instructed on this basis and retained to act on the Banks behalf. Having requested the Bank to forward the funds because completion was imminent, the Solicitors: (i) remitted to Barclays an amount they thought was the total necessary to redeem the Barclays mortgage; and (ii) remitted the balance of the 3.3m less expenses to Mr and Mrs Sondhi. In fact, the Solicitors mistakenly remitted to Barclays an amount which was approximately 300,000 less than was necessary to redeem the Barclays mortgage. As a result, the Bank did not obtain a fully enforceable first charge over the property. When the Bank found out about this, there were negotiations between the Bank and Barclays. As a consequence, the Bank executed a deed of postponement acknowledging the primacy of Barclays charge and Barclays consented to the registration of the Banks charge as a second charge. Subsequently, Mr and Mrs Sondhi defaulted and their property was repossessed and sold by Barclays in February 2011 for 1.2m. The Bank received 867,697, approximately 300,000 less than it should have done if the Solicitors had remitted the correct amount to Barclays. The Bank brought proceedings against the Solicitors claiming, amongst other things, breach of trust. In terms of relief, the Bank argued that it was entitled to recover the full amount of its loan less the 867,697 recovered (approximately 2.5m). HHJ Cooke, at first instance, found that although the Solicitors had acted in breach of trust, the Bank could only recover the amount the Solicitors in fact paid to Mr and Mrs Sondhi but which should have been paid to Barclays (approximately 300,000). The Court of Appeal agreed with HHJ Cookes decision on the relief to which the Bank was entitled. In doing so, it applied what it understood to be the reasoning of Target Holdings Ltd v Redferns [1996] AC 412 (Target Holdings) in relation to equitable principles of compensation. The Supreme Court unanimously dismisses the appeal. Lord Toulson finds that the Bank is only entitled to the amount by which it suffered loss (approx. 300,000). Lord Reed writes a separate judgment coming to the same conclusion and with reasons which are substantially the same. Lord Neuberger, Lady Hale and Lord Wilson agree with both Lord Toulson and Lord Reed. Having considered the House of Lords judgment in Target Holdings [21] [36], Lord Toulson finds that it would be a backward step to depart from, or re interpret, Lord Browne Wilkinsons fundamental analysis of the principles of equitable compensation in that case [63]. A monetary award which reflects neither loss caused nor profit gained by the wrongdoer, such as the one argued for by the Bank, would be penal [64]. Moreover, to argue that the Bank has suffered a loss of 2.5m in this case is to adopt an artificial and unrealistic view of the facts [65]. Rather, one must look at the rationale of the monetary remedy for breach of trust; given that the beneficiary of a trust is entitled to have it properly administered, he is entitled to recover losses suffered by reason of the breach of duty [66]. Here, that loss was approximately 300,000 of the Banks loan which it failed to obtain security over. In Target Holdings, Lord Browne Wilkinson stated that, [u]ntil the underlying commercial transaction has been completed, the solicitors can be required to restore the client account monies wrongly paid away [72]. In the current case, although the Solicitors did not complete the transaction in the manner in which it was required, the transaction was, nevertheless, completed as a commercial matter when the loan monies were released to Mr and Mrs Sondhi [74]. The fact that the Solicitors may also have breached the Solicitors Accounts Rules does not affect the analysis [75]. Lord Reed undertakes a broader analysis of the relationship between equitable compensation and common law damages. He considers, first, the Canadian Supreme Court case of Canson Enterprises Ltd v Boughton & Co (1991) 85 DLR (4th) 129 (Canson Enterprises), focusing mainly on the judgment of McLachlin J [80] [89]. Lord Reed then considers Target Holdings [96] [116]. In that case, Lord Browne Wilkinson did not intend to say that equitable compensation is to be assessed in the same way as common law damages [115]. He was not departing from the orthodox view that where a breach of trust occurs, an equitable obligation arises to restore the trust fund to the position it would have been in but for the breach and that the measure of compensation should be assessed on that basis [116]. A number of common law jurisdictions have subsequently followed the general approach of McLachlin J in Canson Enterprises and Lord Browne Wilkinson in Target Holdings [121] [133]. This is that where trust property has been misapplied, the doctrine of equitable compensation requires the trustee to restore the trust fund, or to pay the beneficiary where the trust has ended, to the position it would have been in if the trustee had performed his obligation [134]. Despite structural similarities when assessing equitable compensation and common law damages, liability of a trustee for breach of trust is not generally the same as liability in damages for tort or breach of contract [136]. The nature of the obligation breached and the relationship between the parties affect the measure of compensation [137]. In the present case, the Banks argument is based on three fallacies: (i) it assumes that the Solicitors misapplied the entire 3.3m as opposed to approximately 300,000 (however, the Court of Appeals decision to the contrary was not challenged before the Supreme Court); (ii) it assumes that the measure of the Solicitors liability was fixed at the date of the breach of trust; and, (iii) it assumes that liability does not depend on a causal link between breach of trust and loss. (ii) and (iii) were rightly rejected in Target Holdings [140]. The Bank should recover its loss, which was approximately 300,000 [141].
The respondent (the claimant) sued the appellants (the defendants) for libel in respect of an article which they published about him in Nowy Czas, a newspaper addressing issues of interest to the Polish community in the UK. The Court of Appeal found that the conduct of the trial by Mr Justice Jay (the judge) in the High Court had been unfair towards the claimant. The defendants appeal against that finding. They also challenge the Court of Appeals analysis of the effect of section 4 of the Defamation Act 2013 (the Act), which sets out the public interest defence to a defamation claim. The claimant was born in Poland but has lived in England since 1984. In about 1989 he joined POSK, a Polish social and cultural association and charity. He became joint manager of The Jazz Caf, a bar and caf at POSKs Hammersmith premises. He also worked at Kolbe House, a charity which runs a care home in Ealing. The article was published in October 2015. The claimant asserted that it had 13 separate defamatory meanings, including that he had abused his position at POSK to award himself or his company contracts for maintenance work there; had dishonestly obtained unlawful and fraudulent profit from sales at The Jazz Caf (this meaning is referred to as M4); and had diverted to himself funds needed for the care of Kolbe Houses residents by securing for himself a contract for unnecessary renovations. The claimant represented himself at the hearing before the judge. The judge found that all the articles meanings other than the five relating to Kolbe House were substantially true or, in one instance, had caused no serious harm to the claimants reputation. But he found that in relation to all 13 meanings the defendants had established a defence to the claim under section 4 of the Act: for, in his opinion, each of them was on a matter of public interest, and it was reasonable for the defendants to have believed that publishing them was in the public interest. So the judge dismissed the claim. The Court of Appeal allowed the claimants appeal. It held that the judge had been wrong to uphold the defence under section 4; that he had not been entitled to find that M4, which it described as the most serious of the allegations, was substantially true; and that the claimant was entitled to damages in respect of M4 and the meanings relating to Kolbe House. Lastly, after reviewing transcripts of the hearing, it held that the nature, tenor and frequency of the judges interventions were such as to render [the trial] unfair. It ordered that the quantification of damages be remitted to a judge other than Mr Justice Jay but did not order a full retrial. The defendants now appeal to the Supreme Court. The Supreme Court unanimously dismisses the appeal. But, in place of the Court of Appeals order that only the assessment of damages be remitted, the Court orders that the case be remitted for a full retrial. Lord Wilson gives the only judgment, with which the other Justices agree. Unfair trial The Court of Appeal was correct to treat the claimants allegation as being that the trial had been unfair, not that the judge had given the appearance of bias against him. For it is far from clear that an informed and fair minded observer would consider that the judge had given that appearance [39]. The authorities on an inquiry into the unfairness of a trial establish the following principles: a judges interventions should be as infrequent as possible during cross examination of witnesses, and he must remain above the fray and neutral while evidence is being elicited; the quality of the written judgment cannot render a trial fair in circumstances where the judges interventions at the hearing prejudiced the exploration of evidence; and where a transcript exists, it is not the present practice of higher courts to invite the judge to comment on the allegations, but the fact that he is unable to comment requires those courts to analyse the evidence with great care [40 45]. Unrepresented litigants are unlikely to be equipped to withstand judicial pressure and so the judge must temper his conduct accordingly [46]. The factual analysis of the conduct of the trial is set out in the schedule to Lord Wilsons judgment [47]. It is important to remember (among other things) that the excerpts from the transcript which are reproduced there were separated by long stretches of evidence in respect of which no criticism of the judge can be made. But the transcripts do nevertheless show that the judge directed a barrage of hostility towards the claimants case and towards the claimant himself acting in person. In doing so the judge used immoderate, ill tempered and at times offensive language. The Court is driven to uphold the Court of Appeals conclusion that the judge did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and that the trial was unfair. Instead of making allowance for the claimants being unrepresented, the judge harassed and intimidated him [48]. The logical consequence of a conclusion that a trial was unfair is an order for a complete retrial. So it is hard to understand the Court of Appeals order that all the issues relating to the determination of whether the defendants were liable to the claimant had been concluded. Conscious that the justice system has failed both sides, the Court, with deep regret, must order a full retrial [49]. Public interest defence The House of Lords decision in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 established the existence at common law of a specific defence to a claim for defamation brought in relation to publication of a statement on a matter of public interest. Where the defamatory material concerned such a matter, the defendant had to show that it had met the standard of responsible journalism, measured by reference to a list of ten factors [53 56]. Section 4 of the Act replaced the Reynolds defence with a new defence which, on any view, draws on the principles in Reynolds and later cases [58, 68 69]. The section 4 defence is available where the defendant reasonably believed that publishing the statement complained of was in the public interest (s.4(1)(b)) [52, 62]. In assessing reasonableness, the Court must (among other things) have regard to all the circumstances of the case (s.4(2)) [52, 65]. factors was deliberately omitted from the section [62, 69]. The Court of Appeal was wrong to state that the Reynolds defence and the section 4 defence are not materially different: for the elements of the two cannot be equated [68, 72]. It was also inappropriate for the Court of Appeal to regard the Reynolds factors as a check list in the context of section 4 [69, 77]. For these and other reasons, the new judge should determine whether the public interest defence is available to the defendants without reference to the Court of Appeals reasoning on section 4 [78].
These appeals concern the circumstances in which a prisoner serving a life sentence or an indeterminate sentence of imprisonment for public protection (IPP), who has served the minimum period specified for the purposes of retribution and deterrence (the tariff), and whose further detention is justified only if it is necessary for the protection of the public, should be awarded damages for delay in reviewing the need for further detention following the expiry of the tariff. They are also concerned with the quantum of such damages. Since 1997, legislation has required judges to impose life sentences on a wider range of offenders than was previously the case. In addition, IPPs were introduced in April 2005. It is for the Parole Board of England and Wales (the Board) to decide whether to direct the release of a life or IPP prisoner whose tariff has expired. The prisoners case must first be referred to the Board by the Secretary of State for Justice (the Secretary of State). The increase in the number of life prisoners and the introduction of IPP sentences resulted in an increase in the Boards workload, but its resources were not increased. This resulted in delay in the consideration of post tariff prisoners cases. That delay has implications under the Human Rights Act 1998 (the 1998 Act), which gives effect to Article 5 of the European Convention on Human Rights (the Convention). Article 5(1) requires that detention must throughout its duration remain causally connected to the objectives of the sentencing court. In relation to post tariff prisoners, that objective is the protection of the public. In order to comply with Article 5(4), the Board has to review the necessity for the continued detention of post tariff prisoners speedily upon the expiry of their tariff and at reasonable intervals thereafter. The 1998 Act also provides that the remedies for a violation of a Convention right include damages. Mr Faulkner was sentenced in 2001 to life imprisonment for a second offence involving grievous bodily harm. Mr Sturnham was convicted of manslaughter in 2007 and given an IPP sentence. In each case, there was a delay in the holding of a hearing before the Board after the tariff had expired, due to administrative errors for which the Secretary of State was responsible. Both men were eventually released following Board hearings, but Mr Faulkner was twice recalled to prison in respect of allegations of which he was acquitted, and remains in custody. Each sought judicial review of the failure by the Board and the Secretary of State to conduct a review of his detention speedily, as required by Article 5(4). Mr Faulkner was unsuccessful in the High Court, but the Court of Appeal held that the Secretary of State had breached Article 5(4), that Mr Faulkner would have been released 10 months earlier than he was but for that breach, and that the Secretary of State should therefore pay him 10,000 in damages. In Mr Sturnhams case, the High Court held that there had been a breach of Article 5(4) due to a delay of 6 months, that he had been caused anxiety and distress by the delay, but that there was no prospect that he would have been released any earlier had the hearing taken place speedily. The Secretary of State was ordered to pay him 300, but that award was quashed by the Court of Appeal. In Mr Faulkners case, the Board appeals to the Supreme Court on the ground that the award of damages was excessive. Mr Faulkner cross appeals on the ground that the award was inadequate and that his imprisonment during the period of delay constituted false imprisonment at common law or a violation of Article 5(1). Mr Sturnham seeks permission to appeal against the Court of Appeals decision to quash the award of damages to him. The Supreme Court allows the Boards appeal in Mr Faulkners case, reduces the damages awarded to him to 6,500, and dismisses his cross appeal. The Court grants Mr Sturnham permission to appeal and allows his appeal. Lord Reed gives the lead judgment, with which Lord Neuberger, Lord Mance and Lord Kerr agree. Lord Carnwath delivers a concurring judgment. Mr Faulkners argument that the detention of a life prisoner constitutes false imprisonment if it continues beyond the point at which the prisoner would have been released if a hearing had been held in accordance with Article 5(4) must be rejected. That detention is still authorised by statute, and is therefore lawful until the Board directs release [16, 86]. Nor was Mr Faulkner the victim of a violation of Article 5(1). Such a violation requires exceptional circumstances warranting the conclusion that continued detention has become arbitrary, which were not present in Mr Faulkners case [17 23, 86]. On the question of the award of damages under the 1998 Act, the courts should be guided primarily by the principles applied by the ECtHR, which may be inferred from any clear and consistent practice of that court. The quantum of such awards should broadly reflect the level of awards made by the ECtHR in comparable cases brought by applicants from the UK or other countries with a similar cost of living [39]. The courts should resolve disputed issues of fact in the usual way even if the ECtHR in similar circumstances, due to the nature of its role, would not do so [39, 82]. Where it is established on the balance of probabilities that a violation of Article 5(4) has prolonged the detention of a prisoner past the point at which he would otherwise have been released, damages should ordinarily be awarded. The amount of such damages will be a matter of judgment, reflecting the facts of the case and having regard to guidance from the ECtHR and the national courts in comparable cases [75]. Pecuniary losses should be compensated in full [53, 70]. Though relevant in some circumstances, it will not ordinarily be appropriate to take into account as a mitigating factor that a claimant was recalled to prison following his eventual release [83]. Nor should damages be awarded merely for the loss of a chance of earlier release [82], or adjusted according to the degree of probability of release if the violation of Article 5(4) had not occurred [84]. Appellate courts do not ordinarily interfere with an award of damages simply because they would have awarded a different figure if they had tried the case. However, as the Court is in this case being asked to give guidance on the appropriate level of awards, and having regard to awards made by the ECtHR in other cases and to the fact that the liberty enjoyed by a person released on licence is precarious and conditional, the Court considers that an award of 6500 would adequately compensate Mr Faulkner [87]. Even where it is not established that an earlier hearing would have resulted in earlier release, there is a strong presumption that delay which violated Article 5(4) has caused the prisoner frustration and anxiety. Where such a presumption is not rebutted, an award of damages should be made, though on a modest scale [53, 67 68]. No such award should be made in cases where the frustration and anxiety were insufficiently severe to warrant an award, although that is unlikely to be the case where the delay was of around three months or more [66]. Following that approach, and having regard to ECtHR authorities, the award of 300 to Mr Sturnham was reasonable in his case [97]. Lord Carnwath concurs with the reasoning and conclusions in Lord Reeds judgment, but suggests a more selective approach to ECtHR authorities. He suggests focusing on those cases which explicitly decide points of principle, and eschewing those which are simply assessments of the facts [104 127].
The appellants, all Algerian nationals, were suspected terrorists whom the Secretary of State proposed to deport to Algeria. It was common ground that Algeria was a country where torture was systematically practised by state officials and no state official had ever been prosecuted for it. The Secretary of State obtained assurances from the Algerian Government that the appellants rights not to be tortured or subjected to other ill treatment would be respected on return to Algeria. The Special Immigration Appeals Commission Act 1997 established an appeal system which allows where necessary for closed material procedures and the appointment of special advocates. If the Secretary of State wishes to adduce evidence which, for reasons of national security or other sufficient public interest reasons, cannot safely be communicated to the other party, SIACs rules and procedures provide for this to be done. In this case, however, it was one of the appellants who wished to adduce evidence from a witness (W), who had inside knowledge of the position in Algeria and asserted that, notwithstanding the Algerian Governments official assurances, those in the appellants positions were in fact likely to be subjected on return to torture or other ill treatment. W was prepared to give evidence in the appellants appeals to SIAC only on one unalterable condition: that his identity and evidence would by order remain absolutely and irrevocably confidential to SIAC and the parties to the appeals. W was concerned that the Secretary of State might otherwise seek to communicate his evidence to the Algerian authorities, if only to assess its veracity and reliability, and that her doing so would place him and/or his family in peril. The Secretary of State had two main objections to such an order being made. First, she would be unable to participate effectively in the conduct of the appeals before SIAC, being unable to test either the validity of the reasons asserted by W in support of his claimed need for confidentiality or the substance of Ws evidence itself. Secondly, the Secretary of State may find herself in possession of information pointing to the existence of a terrorist threat abroad or some other risk to national security, yet, bound by SIACs order, unable to alert the foreign state to the risk. This could gravely imperil future diplomatic relations with foreign states. The question in the appeals therefore was whether it was open to SIAC to make an order for an absolute and irreversible guarantee of total confidentiality in respect of Ws identity and evidence before the same were disclosed to the Secretary of State (in circumstances where it would nevertheless remain open to the Secretary of State to challenge the admissibility or weight of that evidence before SIAC in its determination of the substantive appeals). The Supreme Court unanimously allows the appeals. Lord Brown gives the leading judgment of the Court; Lord Dyson gives a concurring judgment. The fundamental objection of the Secretary of State to the proposed order, based on her concerns about being obliged to withhold vital information relating to national security from a foreign state, thereby imperilling future diplomatic relations, is unpersuasive [11] [13]. It must surely be a substantial defence to any diplomatic complaint by a foreign state that the Secretary of State is subject to a final and absolute court order prohibiting her from acting differently [14]. A number of recent international instruments are replete with statements urging states to ensure that witnesses are protected against ill treatment or intimidation, particularly in a human rights context [15]. The imperative need here is to maximise SIACs chances of arriving at the correct decision on the issue before them concerning the safety of the appellants on return to Algeria and, therefore, for SIAC to obtain all such evidence as may contribute to this task [18]. Accordingly, it is open to SIAC to make absolute and irreversible ex parte orders of the kind sought in this case and on occasion it may be appropriate to do so [19]. The power to make such orders should however be used most sparingly [19]. Before making one of the proposed ex parte orders, SIAC should require the very fullest disclosure from the applicant (A) of (a) the proposed evidence from As proposed witness (W), (b) the particular circumstances in which W claims to fear reprisals, and (c) how A and his legal advisers came to hear about Ws proposed evidence and what if any steps they have taken to encourage W to give that evidence in the usual way subject to the usual steps generally taken to safeguard witnesses in such circumstances (e.g. anonymity orders and hearings in private) [20]. SIAC should only then, in the interests of justice, grant such an order if it (1) is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and (2) has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals if his identity and the evidence that he is willing to give were disclosed to the relevant foreign state [34]. Notwithstanding the absolute and irreversible nature of the order, it should in addition be open to the Secretary of State, upon such order being made, to try to persuade SIAC either to seek from A and W a sufficient waiver of the ex parte order forbidding any further communication of the information, or, if such waiver proves unobtainable, to exclude or regard with additional scepticism the evidence submitted [21]. The Court, in permitting the making of such ex parte orders in the circumstances of this case, has in no way been influenced by the circumstances in which the Secretary of State is on occasion entitled to adduce evidence in closed proceedings divulged only to a special advocate and not to A. The scope of the orders sought here should not be regarded as levelling the playing field between the parties: the Secretary of State in cases before SIAC acts in the wider public interest and not as an interested party [22]. The same considerations and the same result would follow if the case engaging as it does here the rights of the appellants under article 3 of the ECHR raised a question under article 2 of the same. However, if the ground on which an appellant is resisting deportation is an alleged risk of breach of some other article of the ECHR (e.g. article 8), the balance will almost certainly be struck the other way. In those circumstances it would be inappropriate to make an ex parte order to protect the confidentiality of a witness [38].
In July 2012 the Immigration Rules (the Rules) were amended to establish new entry requirements for non EEA applicants to join their spouses or civil partners in the United Kingdom. These included a minimum income requirement (MIR) of at least 18,600 per annum with additional sums for dependent children, to be satisfied by the sponsoring spouse or civil partner. In four appeals the appellants claim that the Rules themselves, and the Immigration Directorate Instruction on family migration giving guidance to entry clearance officers (the Instructions), are incompatible with the rights protected by the European Convention on Human Rights (ECHR), principally the right to family life in article 8, and unlawful under common law principles. One of the appellants is a child, and it is contended that the Rules fail to take account of the Secretary of States duty under section 55 of the Borders, Citizenship and Immigration Act 2009 (the s 55 duty) to have regard to the need to safeguard and promote the welfare of children when making decisions which affect them. The fifth appeal, brought by SS, is against the refusal of entry clearance because of a failure to meet the MIR on the facts of her case. The claims to strike down the Rules partly succeeded in the High Court, but this decision was reversed by the Court of Appeal. SS appealed successfully against the refusal to grant her entry clearance to the First tier Tribunal, which found that she and her husband would not be able to live together in the Democratic Republic of Congo, where she was a citizen, but from which he had been granted asylum in the UK. He could not meet the MIR but the refusal was found to be a breach of article 8. The Entry Clearance Officers appeal failed in the Upper Tribunal but was allowed by the Court of Appeal. The Supreme Court unanimously (i) allows SSs appeal, restoring the decision of the Upper Tribunal in her case, and (ii) allows the other four appeals to a limited extent. The court holds that the MIR is acceptable in principle but that the Rules and the Instructions unlawfully fail to take proper account of the s 55 duty. The Instructions also require amendment to allow consideration of alternative sources of funding when evaluating a claim under article 8. Lady Hale and Lord Carnwath give a joint judgment, with which all the other Justices agree. Challenge to the validity of the Rules under the Human Rights Act 1998 (HRA) The Secretary of State is bound by s 6 HRA to exercise her powers under the Immigration Act 1971 compatibly with the ECHR. In a challenge to the legality of the Rules as such, as well as to their application to individual cases, it is legitimate to follow the four stage proportionality test to decide whether the Secretary of State has struck a fair balance between the individual and public interests, taking into account the relevant factors identified by the European Court of Human Rights (ECtHR) and the significant weight to be given to the interests of children [52, 56]. The general provisions of the Rules envisage a two stage process, the second involving a fact sensitive consideration of any human rights issues outside the Rules. The duty of the tribunal hearing appeals against any adverse decision of the Secretary of State is to ensure that the ultimate disposal of the application is consistent with the ECHR. This means that there is no basis for challenging the new Rules as such under the HRA [58, 60]. The principle of an MIR The fact that the MIR may cause hardship to many does not render it unlawful [81]. It has the legitimate aim of ensuring that the couple do not have recourse to welfare benefits and have sufficient resources to play a full part in British life. The income threshold chosen was rationally connected to this aim [83] and the acceptability in principle of an MIR has been confirmed by the ECtHR [86]. Treatment of children The Rules assert that the Secretary of States s 55 duty has been taken into account but nothing in the relevant section gives direct effect to it [90]. The Instructions in their current form do not adequately fill the gap left by the Rules. They are defective and need to be amended in line with the principles established by the ECtHR. The s 55 duty stands on its own and it should be clear from the Rules themselves that it has been taken into account. In this respect the Supreme Court grants a declaration that the Rules and the Instructions are unlawful [92]. Treatment of alternative sources of funding There are restrictions in the Rules on taking into account the prospective earnings of the foreign spouse or partner or guarantees of third party support when deciding whether the MIR has been met. Although harsh, it is not irrational for the Secretary of State to give priority in the Rules to simplicity of operation and ease of verification [98]. Operation of the same restrictive approach outside the Rules is a different matter and inconsistent with the evaluative exercise required by article 8. A tribunal on an appeal can judge for itself the reliability of any alternative sources of finance and it makes little sense for decision makers at an earlier stage to be forced to take a narrower approach [98]. In this respect aspects of the Instructions require revision to ensure that decisions are taken consistent with the duties under the HRA. It will be a matter for the Secretary of State to decide if it is more efficient to revise the Rules themselves to achieve this [101]. Appeal by SS In the light of the crucial finding by the tribunal that there were insurmountable obstacles to the couple living together in DRC, any errors in the tribunals judgment did not after this long delay require the appeal to be remitted for rehearing. Applying the correct test, the extreme interference with family life would not be found to be justified on the facts of SSs case [106].
In 2002, Sir Christopher Hohn and Ms Jamie Cooper, who were then married, set up The Childrens Investment Fund Foundation (UK) (CIFF), a charitable company limited by guarantee, helping children in developing countries. CIFF has a board of trustees (directors), and members. Governance issues emerged when their marriage broke down. The parties agreed that Ms Cooper should resign as a member and trustee of CIFF, and that CIFF should make a grant (the Grant) of $360 million to Big Win Philanthropy (BWP), a new charity founded by Ms Cooper. Under the Companies Act 2006, section 217 and the Charities Act 2011, section 201, payments by a company in connection with the loss of office of a director (here Ms Cooper) must be approved by the members of the company and the Charity Commission. The Charity Commission authorised the trustees of CIFF to obtain the approval of the court. So, the trustees started proceedings in the name of CIFF and surrendered their discretion on the transaction to the court. As to s.217, the members of CIFF were Sir Christopher, Ms Cooper and Dr Lehtimki. Only Dr Lehtimki as the sole non conflicted member, would vote on the resolution (the resolution) to approve the Grant. Dr Lehtimki (a party to the trustees proceedings) did not surrender his discretion or make his voting intentions clear. The Chancellor of the High Court (Sir Geoffrey Vos) determined that he should exercise the trustees discretion by approving the Grant, which he held was in CIFFs best interests. He accepted that a reasonable fiduciary could disagree with this conclusion. As to the resolution, Dr Lehtimki did not consider that he was bound to vote in favour, although throughout the proceedings it has been unclear what his actual voting intentions are. The Chancellor held that, as a member of CIFF, Dr Lehtimki was also a fiduciary and that, once the court had approved the Grant, he would be in breach of his fiduciary duty if he voted against the resolution. He ordered Dr Lehtimki to vote in favour of the resolution. The Court of Appeal (Gloster VP, Richards and Newey LJJ) agreed that Dr Lehtimki was a fiduciary but held that he had not threatened to act contrary to his fiduciary duty, since he had stated that he intended to act in what he considered would promote CIFFs charitable purposes. The Court of Appeal discharged the order against Dr Lehtimki. Ms Cooper appeals to the Supreme Court and seeks an order requiring Dr Lehtimki to vote in favour of the resolution. Dr Lehtimki and Sir Christopher contend that: (1) no such order can be made as a member is not a fiduciary; (2) that, if he was, there is a principle of trust and charity law that the court does not generally intervene in the exercise of a fiduciarys discretion unless he is acting improperly or unreasonably (the non intervention principle); and, (3) that Companies Act, s 217 precluded the court from giving Dr Lehtimki the direction to vote. The Supreme Court, Lord Reed (dubitante) concurring in the order, allows that appeal and makes an order requiring Dr Lehtimki to vote in favour of the resolution for the following reasons: Issue 1: Dr Lehtimki is a fiduciary when acting as a member of CIFF Lady Arden gives the sole judgment on this issue. The distinguishing characteristic of a fiduciary is that he owes a single minded duty of loyalty in matters covered by his duty [44]. A member of a charitable company in principle owes this duty. A charitable company itself is analogous to a charitable trustee, in the sense that it holds its assets subject to a binding obligation to apply them for charitable purposes only. The practical objections to members being fiduciaries (with duties to make their own investigations before voting and so on) are met by the fact that trust law allows such duties to be shaped by contract and in this case the members duties are shaped by the companys constitution, as well as relevant legislation. So, the duty is essentially a contract and statute based model [92]. The holding that a member is a fiduciary does not mean that there may not be matters on which a member can vote which only concern him personally and not the charity [101]. Issue 2: The Court can direct Dr Lehtimki to vote in favour of the resolution Lord Briggs, with whom Lord Wilson and Lord Kitchin agree, considers that once a court has decided whether a transaction is in the charitys best interests, that question is finally resolved. The Chancellor was right that the member no longer has a free vote. The charitys fiduciaries (whether or not parties) were obliged to use their powers to ensure that the courts decision was implemented. It would be a plain breach of duty for a fiduciary not to follow that decision [207 208]. If the decision was wrong, it could be appealed [210]. The concept that a fiduciary is entitled to form his own subjective judgment about a matter assumes that there are different conclusions about the matter which might reasonably be reached. This is no longer the case where a court has decided the issue [218]. If there was no such breach of duty, Lord Briggs agrees with Lady Arden that this case constitutes an exceptional case in which the non intervention principle does not apply [217]. Lady Arden holds that this care is a rare exception to the non intervention principle because of the existential threat to CIFF caused by the deeply felt dissension between the two founders [137]. She rejects the majoritys analysis. The order approving the Grant did not give jurisdiction to make an order directing Dr Lehtimki to vote on the beach of duty basis [180]. Moreover, a members duty is subjective: Dr Lehtimki did not threaten to breach that duty. There are strong reasons of policy for the subjective approach to fiduciary duties and for the non intervention principle, such as the policy of encouraging persons to act as fiduciaries [187]. The majoritys analysis also means that members are automatically in breach of duty if they fail to implement a transaction approved by the court at the trustees request, and this was contrary to the ethos of a membership charity, in which members who desire to do more than give may play a part in the direction of the charity. In addition, when the vote is taken, circumstances may have changed [194]. Issue 3: Companies Act 2006, s 217 does not prevent the court from directing a member to vote Lady Arden gives the sole judgment on this issue. Charities operate within a public law framework, where the court does not in general substitute its own judgment for that of the decisionmaker. However, section 217s purpose is to ensure adequate disclosure to, and approval by, the companys members [159], and the right to vote can be restricted by the companys constitution or by orders made under the 2006 Act. In these circumstances, where the matter is internal to the charitable company, the court can in an appropriate case direct one of its members how to vote [165].
These appeals arise out of an application by West Lothian Council (the local authority) for a permanence order under s.80 of the Adoption and Children (Scotland) Act 2007 (the 2007 Act), granting it parental responsibilities and rights in relation to a child (EV), including the authority to adopt. EV was born on 30 December 2013 and has been in care since her birth. The application is opposed by EVs parents, both of whom have experienced learning difficulties throughout their lives. Section 84 of the 2007 Act sets out the conditions and considerations applicable to the making of a permanence order. s.84(3) prohibits the making of an order unless the court considers that it would be better for the child that the order be made than that it should not be made. In considering whether to make an order and, if so, what provision the order should make, the need to safeguard and promote the welfare of the child throughout childhood is to be regarded as the paramount consideration (s.84(4)). S.84(5)(b) imposes a duty on the court to have regard to certain factors before making a permanence order. Under s.84(5)(c)(ii), before making a permanence order the court must be satisfied, in relation to each of the parents, that the childs residence with that person is likely to be seriously detrimental to her welfare. The local authoritys concerns in relation to EV primarily related to her father, and arose out of allegations concerning his behaviour before she was born. The Lord Ordinary, after hearing 9 days of evidence, granted the permanence order with authority to adopt. He made few findings of fact in relation to the issues in dispute, and none in relation to whether the threshold test in s.84(5)(c)(ii) was satisfied. Instead of considering whether the allegations were relevant to the threshold test; if so, whether they were true; and if so, whether the test was met, his approach was to consider whether the local authoritys actions had a proper basis. The Lord Ordinarys decision was upheld by the Inner House, except in relation to the grant of authority to adopt and a related prohibition on contact by the parents. The parents now appeal to the Supreme Court. On the parents appeals to the Supreme Court, the local authority argued that if the appeal against the decision of the Inner House were allowed, the application for a permanence order should not be refused, but should be remitted to the Inner House for it to determine the application on the basis of the evidence before the Lord Ordinary (and such further evidence as may be appropriate). The Supreme Court unanimously allows the appeals, and refuses the petition for a permanence order. Lord Reed gives the judgment, with which the rest of the Court agrees. The test under s.84(5)(c)(ii) is a factual threshold test which has to be met before the court reaches the stage of considering whether to make a permanence order under the other provisions of s.84. The judge is the primary decision maker in determining whether the threshold test has been met, and must base his or her determination of that issue on findings of fact. The judge is not exercising a merely supervisory jurisdiction over the approach of the local authority. S.84(5)(c)(ii) is similar to section 31(2) of the Children Act 1989, which requires the court to be satisfied that the child concerned is suffering, or is likely to suffer, significant harm before it can make a care order. Both provisions impose a threshold test, requiring the court to be satisfied of a likelihood. Decisions under s.31(2) of the 1989 Act as to a future likelihood of harm cannot be based merely on allegations or suspicions, but on facts which have been established on a balance of probabilities (In re J (Children) Care Proceedings: Threshold Criteria) [2013] UKSC 9). The approach in In re J is also applicable to the 2007 Act. The legislation needs to be construed in a way which strikes a proper balance between the need to safeguard children and the need to respect family life. The requirement that residence with the parent was likely to be seriously detrimental indicates depriving parents of their parental authority is a serious matter and should only be done if strict criteria are satisfied. The inclusion of the word satisfied as part of the test indicates that suspicions cannot form the basis of the order (and can be contrasted with other statutory language used where suspicion may be enough). If the court finds that the threshold test is satisfied, it must make clear (1) what the nature of the detriment is, which the court is satisfied is likely if the child resides with the parent, (2) why the court is satisfied that it is likely and (3) why the court is satisfied that it is serious. The alleged behaviour about which the local authority was concerned could only be relied on as a basis of a finding that the threshold test was satisfied if the allegations were relevant to that issue and if they were proved on the balance of probabilities to be true [19 29]. The approach of the Lord Ordinary was deficient in a number of respects. He did not determine the threshold issue arising under s.84(5)(c)(ii) but approached the case in a supervisory manner considering whether the local authoritys concerns about EVs father were justified. The correct approach would have been to consider whether the allegations were relevant to the issue arising under s.84(5)(c)(ii). If they were, then the Lord Ordinary should have made a finding of fact on the balance of probabilities as to whether the allegations were true. If he was unable to make such a finding, he should not then take them into account in his consideration of the threshold test. Further, the Lord Ordinary did not refer to the matters which he had a duty to consider under s.84(5)(b). It is not clear whether he had in mind the requirement under s.84(4) that the childs welfare is paramount, but that is not in any event a consideration that would arise until the threshold test under s.84(5)(c)(ii) was satisfied [30 62]. The application should not be remitted to be decided again by the Inner House, but refused. It is open to the local authority to commence fresh proceedings as and when that may be appropriate. Remitting the case would require the Inner House to go through nine days worth of evidence which by now is somewhat stale and which would not take into account intervening events which may be relevant. This is a case where the assessment of the evidence is difficult because of the learning difficulties of the parents and there may be a significant benefit in seeing and hearing the evidence at first instance [63 66].
The criminal law relating to abortion in Northern Ireland falls within the legislative competence of the Northern Ireland Assembly by virtue of section 4(1) of the Northern Ireland Act 1998. Abortion is lawful in Northern Ireland only in far narrower circumstances than in the rest of the UK. Consequently, a steady stream of women usually resident in Northern Ireland come to England to secure an abortion. Many of these women attend private clinics which charge a fee for the service, as they are unable to obtain an abortion free of charge under the English NHS unless in an emergency. A, a resident of Northern Ireland, became pregnant in 2012 at the age of 15. With the support of her mother, B, A decided to seek the termination of her pregnancy. B accompanied A to a private clinic in Manchester where A underwent an abortion. The total cost was about 900. The appellants argued that the respondents failure to provide for A, as a UK citizen usually resident in Northern Ireland, to be entitled to undergo an abortion free of charge under the NHS in England was unlawful. Section 1(1) of the National Health Service Act 2006 (the 2006 Act) places a duty on the respondent to continue the promotion in England of a comprehensive health service designed to secure the improvement (a) in the physical and mental health of the people of England, and (b) in the prevention, diagnosis and treatment of illness. The respondent also had a duty under section 3(1) of the 2006 Act to provide throughout England, to such extent as he considers necessary to meet all reasonable requirements [] (c) medical services. The respondent had the power to make a direction under section 7(1) of the 2006 Act and regulation 3(7) of the NHS (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002 providing that the function of providing abortion services should be exercised by primary care trusts (latterly clinical commissioning groups) for the benefit of all persons present in their area who were citizens and residents of the UK rather than only for those usually resident in its area. The appellants contend, firstly, that in failing to make such a direction the respondent acted irrationally and unlawfully took into account the Northern Ireland Assemblys decision not to provide abortion services. Further, they argued section 3(1) required the respondent to make a direction. Secondly, the appellants argued that the respondents failure to make a direction violated article 14 of the European Convention on Human Rights taken in conjunction with article 8 because their right to respect for private and family life was not secured without discrimination on the ground of usual residence. The Supreme Court by a majority of 3 to 2 dismisses the appeal. Lord Wilson gives the lead majority judgment, with which Lord Reed and Lord Hughes agree. Lord Reed gives a concurring judgment, with which Lord Hughes agrees. Lady Hale and Lord Kerr give dissenting judgments. Lord Wilson expresses sympathy with the deeply unenviable position of those in the situation of the appellant, but rejects the public law challenge. Parliaments scheme is that separate authorities in each of the four countries in the United Kingdom should provide free health services to those usually resident there. The respondent was entitled to make a decision in line with this scheme for local decision making. Further, the respondent was entitled to afford respect to the democratic decision of the people of Northern Ireland not to fund abortion services, and to take into account the ability of Northern Irish women to lawfully travel to England and purchase private abortion services there [20]. Lord Wilson concludes that the human rights challenge fails as the difference in treatment was justified [35]. The respondents decision as to whether to provide abortion services to a group of women free of charge falls within the scope of article 8 [22]. The respondent treated women usually resident in England differently from women who, although UK citizens, were usually resident in Northern Ireland [31]. A difference of treatment between UK citizens present in England on the grounds of usual residence falls within the scope of other status for the purposes of article 14 [27]. The respondents aim to stay loyal to the devolved scheme for health services and the democratic decision reached in Northern Ireland in relation to abortion services was rationally connected to his decision not to make the direction sought by the appellants. With that aim in mind he could not have reached any decision less intrusive upon the article 8 rights of the appellants [32]. The respondents decision struck a fair balance between the appellants rights and the interests of the UK community as a whole and, accordingly, was justified. As such, the difference in treatment did not amount to discrimination [35]. In a concurring judgment, Lord Reed reviews decisions and judgments of the European Court of Human Rights and the former European Commission on Human Rights that relate to devolved laws which differentiate between UK citizens according to whether they are residents of that part of the UK [38 48]. Such differential treatment falls within the scope of article 14 and requires to be justified [49]. Lord Kerr would have allowed the appeal. While the aim in section 1(1)(a) of the 2006 Act relating to the improvement of physical and mental health is limited to the people of England, the aim in section 1(1)(b) relating to the prevention, diagnosis and treatment of illness is not so limited [59]. Northern Irish women who seek an abortion in England are being treated for the preventionof illness under section 1(1)(b) as allowing an unwanted pregnancy to continue to term carries a risk of physical or mental injury [69]. In failing to exercise his power, the respondent was wrong to believe that his section 3 duties were confined to the people of England [72] and that affording respect to the Northern Ireland Assembly required denying Northern Irish women the means of obtaining abortions in England. The Northern Ireland Assembly has expressed no view about the ability of Northern Irish women to travel to England to obtain abortions [74]. Allowing these abortions to take place on the NHS would not alter the democratic decision of the Northern Ireland Assembly [75]. In respect of the human rights challenge, Lord Kerr would have held that no legitimate aim exists for the interference with article 8 [87]. Allowing Northern Irish women abortions on the NHS would not compromise the scheme of local provision of medical services [84 85]. Further, neither democratic deference to the Northern Ireland Assembly nor cost can qualify as legitimate aims [86]. Lady Hale agrees with Lord Kerr [92]. Further, if the requirements of the Abortion Act 1967 are complied with then it is a reasonable requirement under section 3 of the 2006 Act that the respondent provide a woman with a service, wherever she comes from. The NHS can charge women from abroad in respect of abortion services. But they cannot charge women from the United Kingdom [94].
This appeal case centred around whether a local education authority has a minimum legal obligation to provide all children with an effective education, taking account of their special needs and regardless of the demands that this has on resources. A, a man now aged 21, is severely autistic, suffers from epilepsy, and has grave learning difficulties. As a boy, he attended a special school. In 2001, when he was aged 12, teachers at the school expressed concern about his behaviour and the schools ability to deal with him. He would self harm, would suffer from regular epileptic fits in spite of medication, was doubly incontinent, had no concept of danger, and required constant supervision. In January 2002, As parents were asked not to bring him into school for health and safety reasons. It was at that time intended that he should receive an urgent residential medical assessment but this was delayed. Meanwhile the school sent work and activities for A to do with his parents at home and provided him with some weekly speech and language therapy sessions. Neither the Council nor As former school was able to provide a home tutor who was qualified or able to meet As needs. The assessment eventually took place in September 2002. It recommended that A should be placed in a 24 hour residential school specifically for children with high levels of challenging behaviour. Between October and December the Council wrote to a number of schools seeking a placement for A, but without success. Meanwhile As condition continued to deteriorate. A residential school placement did not finally become available under the end of July 2003. When, in July, he took up his place at his new school, his overall health and behaviour started to improve. He since received an appropriate education. He left the school in the summer of 2008 and now lives in residential therapeutic accommodation. Article 2 of the First Protocol to the European Convention on Human Rights (A2P1), made part of UK law by the Human Rights Act 1998, guarantees that no person shall be denied the right to education. In this case, relying on A2P1, A sought damages from Essex County Council arguing that, between the period January 2002 to July 2003, his right to education was infringed. The lower courts (High Court and Court of Appeal) had both decided that, since As case had no realistic prospect of succeeding, it should be struck out. That meant that A could not seek to prove his claim at a full trial of the evidence. A appealed to the Supreme Court against this decision. A also appealed against a ruling that he should not be allowed to pursue his claim because he had brought it outside of the legal time limit for the bringing of such claims. As case raised the following important issue of principle. Does A2P1 impose a minimum obligation to provide a child with an education that is effective having regard to his special needs, regardless of the demands that this makes on resources? A argued that it does, and that this mirrors the public law obligation imposed by statute in England and Wales. A argued that for the 18 months he was denied this right, because his special needs were not met. A also made an alternative argument. He said that A2P1 entitled him to such facilities as were available in the 18 month period, even if these were not adequate to meet his special needs, and that there had been a failure to provide these. The appeal was dismissed. A majority of three to two Justices (Lords Clarke, Phillips and Brown) held that on the principal issue it was not arguable that A2P1 gave A an absolute right to education that met his special needs during the 18 months. A full trial could not be allowed to proceed on that basis. The time taken to find a school that met these needs was attributable to limitation of resources. Even if the delay had been attributable in part to administrative shortcomings, this would not have amounted to a breach of A2P1. On the alternative argument, a different majority, (Lord Phillips, Lady Hale and Lord Kerr) held that A might have been able to establish a breach of A2P1 at a full trial in the form of a failure to provide educational facilities that were available that would have mitigated the consequences of the failure to meet As special needs during the 18 months. However a majority (Lord Phillips, Brown, Kerr and Clarke) held that it would not be right to extend the one year time limit to enable A to bring his claim. He is unable to pursue his claim at a full trial.
The central issue in this appeal is whether the respondent was precluded from making an order depriving the appellant of his British citizenship because to do so would render him stateless. This turns on whether he was considered as a national by Vietnam under the operation of its law (article 1(1) of the 1954 Convention relating to the Status of Stateless Persons). Alternatively, the appellant argues that the decision was disproportionate under European Union law. The appellant was born in Vietnam in 1983. In 1989 his family came to the UK, claimed asylum and were granted indefinite leave to remain. In 1995 he acquired British citizenship. The appellant took no steps to renounce his Vietnamese nationality. On 22 December 2011 the Home Secretary deprived him of his British citizenship under section 40(2) of the British Nationality Act 1981 because she suspected that the appellant was involved in terrorist activities. Vietnamese officials have since declined to acknowledge that Mr Pham is a national of Vietnam. He appealed against the respondents decision to the Special Immigration Appeals Commission (SIAC) on various grounds, including that he had lost his Vietnamese citizenship and therefore the decision made him stateless, contrary to section 40(4) of the 1981 Act. On a preliminary hearing on this issue, SIAC allowed the appeal on the basis that in practice it was the Vietnamese executive who made nationality decisions, and Mr Pham would not have been considered to be a Vietnamese national by the executive on 22 December 2011 had it been asked at that point. The Court of Appeal allowed the Secretary of States appeal and held that Mr Pham was a Vietnamese national on the relevant date under the text of Vietnamese laws. The Supreme Court unanimously dismisses the appeal and remits to SIAC to decide the remaining issues in the appeal. Lord Carnwath gives the lead judgment. Lord Mance, Lord Sumption and Lord Reed give concurring judgments. Lord Neuberger, Lady Hale and Lord Wilson agree with Lord Carnwath, Lord Mance and Lord Sumption. Lord Carnwath observes that the question under article 1(1) is not necessarily to be decided solely by reference to the text of the nationality law of the state in question. to the governments practice, even if not subject to effective challenge in the courts. However, even on the broad interpretation suggested by the UN High Commissioner for Refugees in its guidance, there is no evidence of a decision or practice of the Vietnam government which treated the appellant as a non national by operation of its law. Nor in any event was there evidence of a decision that was effective at the date of the Home Secretarys decision of 22 December 2011; unlike a court, the decision of the executive cannot take effect retrospectively. [34 38] On the further issues of EU law, in the judgment of the Court of Justice of the European Union in Rottman [2010] ECR I 1449, the Court did not explicitly state that a Member States decision as to the acquisition or loss of national citizenship, without any cross border element, is outside the scope of EU law. [48] Lord Carnwath observes that this raises issues of general importance; however, the European point was not properly before the court for decision in this appeal as the preliminary issue defined by SIAC was confined to the question of statelessness. [55 56] Lord Carnwath sees force in criticisms of some of the reasoning in Rottman. The issue would need to be considered by the domestic courts before it would be appropriate to consider a reference to the CJEU. However, before that stage is reached it is important that the tribunal of fact, SIAC, should first identify the respects in which a decision on these legal issues might be necessary for disposal of the case, including how the EU requirement of proportionality would differ in practice in the present case from proportionality under the European Convention on Human Rights, an issue already before SIAC, or from applying domestic law principles. [58 59] Lord Carnwath, Lord Mance and Lord Sumption agree that in this case, the nature and intensity of review may not differ whether under domestic law or EU law. [59 60, 98, 109 110] As to whether EU law offers greater procedural safeguards than domestic law, Lord Carnwath states that it is impossible to judge in the abstract what practical effect that might have and this is best considered by SIAC. [59 61, 100] Lord Mance agrees it is unnecessary at this stage to resolve the dispute about EU law. [71] It is very arguable that there are under the Treaties jurisdictional limits to EU competence in relation to the grant or withdrawal by a Member State of national citizenship. [84] A national court must ultimately decide for itself what is consistent with its domestic constitutional arrangements, including what jurisdictional limits exist on the competence of EU institutions. [90] Lord Mance further notes that proportionality could in principle be an appropriate standard of review at common law for a decision removing a status as fundamental as citizenship. [98] Lord Sumption adds that a different test for EU or human rights issues than for domestic issues produces arbitrary distinctions which depend on which source of law is invoked as a ground of challenge: in the present case, it would be rather unsatisfactory to apply a proportionality test to the decision so far as it affects Mr Phams EU citizenship but not his British citizenship. [104 105] Lord Reed notes that proportionality as a general ground of review of administrative action is distinguishable from proportionality as a basis for scrutinising justifications for interferences with legal rights. In the first sense, the domestic test of reasonableness has been held not to be identical to proportionality in EU or human rights law. Nevertheless, the tests may sometimes yield the same outcome. [112 116] As to the second sense, in a number of cases concerned with statutory powers to interfere with important common law rights, the court has interpreted the powers as subject to implied limits, adopting in substance a requirement of proportionality, though less formally structured than that under the Human Rights Act 1998. [118 119] Given the fundamental importance of citizenship, arguably the power to remove it should be subject to that implied limit; Lord Reed reserves his view on this as it was not argued. [120]
RTS specialises in the supply of automated machines for packaging and product handling in the food and consumer goods industry. Mller, a well known leading European dairy product supplier, entered into discussions with RTS regarding automating its product re packaging process. While negotiations were continuing, and before the terms of the contract between them had been agreed, the parties decided to start work on the basis of a letter of intent and the understanding that ultimately terms would be finalised. However, no final contract was ever signed. A dispute later arose between the parties in relation to the delivery by RTS of certain equipment to Mller. The main issue to be decided by the Supreme Court was whether the parties entered into a contract following the expiry of the letter of intent and, if so, the terms of that contract. At the trial of preliminary issues in the High Court, the judge held that after the expiry of the letter of intent and by no later than 29 June 2005, there was a contract: the parties had reached full agreement on the work that was to be done for the price they had already agreed. The judge held that the contract was based on limited terms and did not include the final draft version of certain terms known as the MF/1 conditions (Mllers standard contract conditions). RTS appealed the judges conclusions. The Court of Appeal unanimously allowed the appeal and made a declaration that no contract came into existence after termination of the letter of intent. The Supreme Court unanimously allows the appeal. In doing so, it reaches a different conclusion from both the High Court and the Court of Appeal finding that although there was no formal contract, Muller and RTS did reach a legally binding agreement and that that agreement contained wider terms than the limited terms found by the judge. The order of the Court of Appeal is set aside and the court declares that (1) the parties reached a binding agreement on or about 25 August 2005 on the terms agreed on or before 5 July (as subsequently varied on 25 August), and (2) that that binding agreement was not subject to contract. The judgment delivered by Lord Clarke is the judgment of the court to which all of its members contributed. The Supreme Court identified the relevant principles to be applied (paragraphs [44] [55]). It identified three possible conclusions that were open to it: (1) there was no contract between the parties (as held by the Court of Appeal); (2) there was a contract between the parties on the limited terms found by the judge; or (3) there was an agreement between the parties on some other wider terms (paragraph [56]). In relation to the first possibility, it is unrealistic to suppose that the parties did not intend to create legal relations. It was common ground that the parties had agreed the price, which must have formed part of a contract between them. As the parties accepted that the letter of intent expired and was not revived, the contract containing the price must be some other agreement (paragraphs [57] [58]). In relation to the second possible conclusion, it is relevant that the parties treated the agreement of 25 August as a variation of the agreement that they had reached by 5 July. It does not make commercial sense to hold, as the judge did, that the agreement between the parties contained some but not all of the terms agreed by 5 July (paragraphs [59] [67]). In considering the third possibility, two questions arise: (i) whether the parties intended to be bound by what was agreed or whether there were further terms which they regarded as essential or which the law regards essential in order for the contract to be legally enforceable, and (ii) whether the parties departed from the original understanding or agreement that it was to be subject to contract (paragraph [68]). In answer to (i), the parties had reached essential agreement by 5 July. None of the issues remaining after that date were regarded by the parties as an essential matter which required agreement before a contract could be binding (paragraphs [69] [84]). As for (ii), it is possible for an agreement subject to contract or subject to written contract to become legally binding if the parties later agree to waive that condition. The court holds that in this case on or by 25 August the parties had agreed to waive the subject to contract provision. Any other conclusion makes no commercial sense (paragraphs [85] [87]). The court notes that the case demonstrates the perils of parties agreeing that work should proceed before a formal written contract is executed. The moral of the story is to agree terms first and start work later (paragraph [1]).
In this appeal, the Supreme Court is asked to decide whether findings of fact made by the General Court of the European Union (the General Court) are binding in subsequent domestic proceedings, under the EU principle of absolute res judicata. The appellants (collectively known as Servier), developed and manufactured the drug Perindopril, which is used to treat cardiovascular diseases including high blood pressure. Perindopril falls within the class of medicines known as angiotensin converting enzyme inhibitors (ACE inhibitors). The respondents, who are the claimants in the domestic proceedings, are the national health authorities of England, Wales, Scotland and Northern Ireland. Between May 2011 and September 2012, the claimants issued proceedings in England and Wales which alleged that Servier had: (i) breached article 101 of the Treaty on the Functioning of the European Union (TFEU) and/or Chapter 1 of the Competition Act 1998 (the 1998 Act) by entering into anticompetitive agreements with potential generic manufacturers and/or suppliers; and (ii) abused its dominant position in the market contrary to article 102 TFEU and/or Chapter 2 of the 1998 Act. The claimants contend that this allegedly unlawful conduct has delayed the entry of cheaper generic versions of Perindopril onto the UK market, which has, in turn, caused the claimants to suffer substantial financial loss. Serviers conduct relating to Perindopril was investigated by the European Commission (the Commission). On 9 July 2014, the Commission issued a decision which found that Servier had infringed articles 101 and 102 TFEU. Servier appealed to the General Court seeking the annulment of the Commissions decision. The General Court judgment upheld all but one of the Commissions findings of infringement of article 101 TFEU, but found that Servier had not infringed article 102 TFEU. This was because the relevant product market was not limited to Perindopril but extended to ACE inhibitors generally, and Servier did not have a dominant position in that wider market. Both the Commission and Servier have appealed to the Court of Justice of the European Union (CJEU). As there are significant overlaps, the domestic proceedings cannot proceed to a final trial until the EU proceedings have been resolved. However, in October 2016, Servier was granted permission to plead that the claimants failed to take reasonable steps to encourage switching from the prescription of Perindopril to cheaper generic ACE inhibitors. Servier asserts that, even if liability and causation are established, the claimants damages should be reduced or extinguished: (i) because the claimants failed to mitigate their loss; (ii) for contributory negligence; and (iii) because the losses claimed are too remote. It was determined that there should be a trial of preliminary issues relating to this argument. Servier argued that certain findings in the General Court judgment in particular concerning the extent to which Perindopril can be substituted for other ACE inhibitors are binding on the domestic courts in the preliminary issues trial. However, both the High Court and the Court of Appeal held that none of the findings relied on by Servier constituted res judicata for these purposes. Servier appealed to the Supreme Court. It claimed that the point of law is uncertain, not acte clair, and that the Supreme Court should therefore refer the question to the CJEU under article 267 TFEU. The Supreme Court unanimously dismisses Serviers appeal. It holds that the General Court findings Servier relies on are not binding in the domestic proceedings, and declines to make a reference to the CJEU. Lord Lloyd Jones gives the judgment, with which all members of the Court agree. The EU principle of absolute res judicata only applies to judicial decisions which have become definitive, either after all rights of appeal have been exhausted or after the time limits for exercising those appeal rights have expired. The General Courts findings are not yet definitive, and may never become definitive, because they may be reversed or rendered redundant in the appeal pending before the CJEU. The findings are not, therefore, binding in the domestic proceedings under the EU principle of absolute res judicata. A reference to the CJEU is unnecessary to decide the issues in this case [31 32]. The Court nevertheless sets out its views on the underlying issues of law, in the hope that they might assist at later stages of the domestic proceedings [32]. The leading authority on the EU principle of absolute res judicata is P&O European Ferries (Vizcaya) SA and Diputacin Foral de Vizcaya v Commission (Joined Cases C 442/03P and C 471/03P) [2006] ECR I 4845 [33 37]. This explains that, where the EU courts have annulled a Commission decision on substantive as opposed to procedural grounds, the substance of that judgment becomes binding on all the world, not just on the parties. This ensures stability of legal relations, because it means that a matter which has been definitely settled by judicial decision cannot be referred to the courts by different parties for reconsideration [38]. The purpose of the EU principle of absolute res judicata is to prevent the annulling judgment from being called into question in subsequent proceedings. This purpose provides the key to the principles scope and applicability [38, 42]. Absolute res judicata gives dispositive effect to the judgment itself. It therefore extends to the essential reasons for the judgment (or ratio decidendi), not just to the outcome set out in the operative part [39 40]. Only those aspects of the judgment which explain why the Commission decision has been annulled form part of the ratio decidendi, because those are the aspects which must be respected to prevent the annulling judgment from being called into question later on [42]. The General Court judgment annuls the Commissions finding that Servier had infringed article 102 TFEU, on the basis that the Commission was wrong to conclude that the relevant product market was limited to Perindopril, as opposed to all ACE inhibitors. The General Court made a number of findings of fact in this regard, including those Servier relies on. Accordingly, if the General Court judgment becomes definitive and it can be shown that the relevant findings were an essential basis of that judgment, it would not be possible to challenge those findings in later proceedings which sought to contradict the General Courts conclusions on the relevant product market within article 102 TFEU [46]. It is not necessary to treat the General Courts findings as binding in any other legal context. If the CJEU upholds the General Court judgment that Servier did not infringe article 102 TFEU, the claimants will no longer pursue their article 102 claim. In any case, at present, the domestic proceedings do not concern the relevant product market for the purposes of that article. Instead, Servier relies on the General Courts findings to support its defence based on mitigation of loss flowing from alleged anti competitive agreements contrary to article 101 TFEU. The General Courts findings cannot be detached from the authority of the annulling judgment and deployed in this wholly different context [48]. Servier contends that the General Courts findings are binding in any EU law proceedings which raise the same factual issues [47]. The Supreme Court rejects this argument because it is not supported by the EU or domestic case law [49 60]. This is not surprising, because it would be inconsistent with the purpose of the principle of absolute res judicata [49]. Serviers proposed approach also raises practical difficulties because it has no workable defined limits. More generally, if it is confined to the context of the consequences of an annulling judgment, the principle of absolute res judicata promotes legal certainty, the effective judicial control of EU institutions and the maintenance of the EU legal order. However, once freed from this restriction, it could operate in way that is arbitrary and unjust, binding persons not party to the original dispute in a wholly different legal context in a way which would be inconsistent with the principles of a fair trial [61]. The claimants claims in the domestic proceedings do not call into question or undermine the General Court judgment or its consequences in any way, nor do they contradict the General Courts decision as to what needs to be done to comply with EU law. The Supreme Court is therefore satisfied to the standard of acte clair that the EU principle of absolute res judicata does not apply [62].
Sustainable Shetland (SS) challenged a consent for a large windfarm in the Central Mainland of Shetland granted under s.36 of the Electricity Act 1989 on 4 April 2012 by the Scottish Ministers. SS alleged that the Ministers had failed to take proper account of the Birds Directive (2009/147/EC) (particularly articles 2 and 4(2)) in respect of the whimbrel, a protected migratory bird. By Article 2 Member States must take measures to maintain the population of wild birds species at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or adapt them up to that level. Article 4(1) requires special conservation measures to be taken in respect of species mentioned in Annex I of the Directive and Article 4(2) requires similar measures for regularly occurring migratory species not listed in Annex I, which includes whimbrel. Pursuant to this duty the Fetlar Special Protection Area (SPA) had been designated. Under Article 4(4), in respect of SPAs Member States shall take appropriate steps to avoid pollution or deterioration of habitats or disturbances of the birds, and outside SPAs they shall also strive to avoid pollution or deterioration of habitats. The whimbrel in Shetland represent around 95% of the UK population and a 2009 survey showed they are in decline. The application was accompanied by an Environmental Statement (ES). Scottish National Heritage (SNH) made objections, including on impact on the whimbrel. In response the developers submitted a new Addendum to the ES dealing in detail with likely effects on whimbrel. It included a Habitat Management Plan (HMP) with proposed habitat management actions e.g. to control predators. The SNH maintained their objections in respect of whimbrel, specifically referencing the Birds Directive. In their decision letter the Scottish Ministers considered various representations (including from SNH) and stated that they had had regard to their obligations under EU environmental legislation and to the potential for environmental impact in particular on species of wild birds. In a section headed Whimbrel the letter discussed the respective submissions on the subject. The estimate of 3.7 annual collision deaths was regarded as very small in the context of 72 108 annual deaths from other causes. The Ministers were not satisfied that the estimated impact of the development on whimbrel was significant, and considered that the potential beneficial effects of the HMP could reasonably be expected to provide counterbalancing positive benefits. In any case if, despite the HMP, the estimated negative impact on the species were to remain, the Ministers considered that the level of impact was outweighed by the benefits of the project, e.g. tackling climate change. The letter also stated that the HMP represented currently the sole opportunity to try to improve the species conservation status and that without the windfarm there currently appears to be no prospect of any significant work being undertaken to reverse the decline of the whimbrel in the UK. Conditions on the consent would ensure monitoring of the effects of the development and the success of mitigation measures. SSs challenge was upheld by the Lord Ordinary on other grounds but she indicated that, if necessary, she would have upheld the challenge under the Directive. The Inner House unanimously allowed the Ministers appeal. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the only substantive judgment, with which the other members of the court agree. The Ministers concluded that even without mitigation the impact on whimbrel was not significant. [27] Although the decision letter did not mention the Directive as such, the detailed consideration given to SNHs advice leaves no serious doubt that it was taken into account. In the context of this proposal the Ministers duty was not to establish the precise scope of Article 2 duties to determine an appropriate level for the whimbrel but to determine whether to grant consent, taking account of all material considerations, of which the Directive formed part. [30 32] If there had been evidence that the development might prejudice the fulfilment of the Ministers duties under the Directive that would have required consideration. However, the appellants suggestions were unsupported by the evidence, and had not been raised by anyone (including SNH) in their representations on this proposal. The investigations conducted in connection with the windfarm proposal had highlighted the present status of the whimbrel. There was no reason to think that SNHs omission to call for designation of further SPAs or other special measures under article 4(2) reflected any misunderstanding of the law or material facts. [33 35] In any event the Ministers did have regard to improving the conservation status of the whimbrel, and were entitled to have regard to the limited anticipated impact of the proposal, combined with the prospect of the HMP improving their conservation status. [36] It is clear from the context of the relevant passage that reference to the benefits of the project as balancing considerations was a fall back position which would only come into play if the primary reasoning were not accepted. Interpretation of Article 2 raises some difficulties, one of which is the precise role of the economic factors there referred to. Another is the obligation of member states in relation to setting an appropriate level for the maintenance of different species. Since Article 2 applies to wild birds of all kinds it seems unlikely that it was intended to require an equally prescriptive approach in all cases, by contrast with the more specific measures required for the particular species protected by Article 4. The need for a reference to the CJEU may arise in a case in which the resolution of these issues is necessary for a decision; this is not such a case. [38 39]
These appeals concern the circumstances in which a prisoner serving a life sentence or an indeterminate sentence of imprisonment for public protection (IPP), who has served the minimum period specified for the purposes of retribution and deterrence (the tariff), and whose further detention is justified only if it is necessary for the protection of the public, should be awarded damages for delay in reviewing the need for further detention following the expiry of the tariff. They are also concerned with the quantum of such damages. Since 1997, legislation has required judges to impose life sentences on a wider range of offenders than was previously the case. In addition, IPPs were introduced in April 2005. It is for the Parole Board of England and Wales (the Board) to decide whether to direct the release of a life or IPP prisoner whose tariff has expired. The prisoners case must first be referred to the Board by the Secretary of State for Justice (the Secretary of State). The increase in the number of life prisoners and the introduction of IPP sentences resulted in an increase in the Boards workload, but its resources were not increased. This resulted in delay in the consideration of post tariff prisoners cases. That delay has implications under the Human Rights Act 1998 (the 1998 Act), which gives effect to Article 5 of the European Convention on Human Rights (the Convention). Article 5(1) requires that detention must throughout its duration remain causally connected to the objectives of the sentencing court. In relation to post tariff prisoners, that objective is the protection of the public. In order to comply with Article 5(4), the Board has to review the necessity for the continued detention of post tariff prisoners speedily upon the expiry of their tariff and at reasonable intervals thereafter. The 1998 Act also provides that the remedies for a violation of a Convention right include damages. Mr Faulkner was sentenced in 2001 to life imprisonment for a second offence involving grievous bodily harm. Mr Sturnham was convicted of manslaughter in 2007 and given an IPP sentence. In each case, there was a delay in the holding of a hearing before the Board after the tariff had expired, due to administrative errors for which the Secretary of State was responsible. Both men were eventually released following Board hearings, but Mr Faulkner was twice recalled to prison in respect of allegations of which he was acquitted, and remains in custody. Each sought judicial review of the failure by the Board and the Secretary of State to conduct a review of his detention speedily, as required by Article 5(4). Mr Faulkner was unsuccessful in the High Court, but the Court of Appeal held that the Secretary of State had breached Article 5(4), that Mr Faulkner would have been released 10 months earlier than he was but for that breach, and that the Secretary of State should therefore pay him 10,000 in damages. In Mr Sturnhams case, the High Court held that there had been a breach of Article 5(4) due to a delay of 6 months, that he had been caused anxiety and distress by the delay, but that there was no prospect that he would have been released any earlier had the hearing taken place speedily. The Secretary of State was ordered to pay him 300, but that award was quashed by the Court of Appeal. In Mr Faulkners case, the Board appeals to the Supreme Court on the ground that the award of damages was excessive. Mr Faulkner cross appeals on the ground that the award was inadequate and that his imprisonment during the period of delay constituted false imprisonment at common law or a violation of Article 5(1). Mr Sturnham seeks permission to appeal against the Court of Appeals decision to quash the award of damages to him. The Supreme Court allows the Boards appeal in Mr Faulkners case, reduces the damages awarded to him to 6,500, and dismisses his cross appeal. The Court grants Mr Sturnham permission to appeal and allows his appeal. Lord Reed gives the lead judgment, with which Lord Neuberger, Lord Mance and Lord Kerr agree. Lord Carnwath delivers a concurring judgment. Mr Faulkners argument that the detention of a life prisoner constitutes false imprisonment if it continues beyond the point at which the prisoner would have been released if a hearing had been held in accordance with Article 5(4) must be rejected. That detention is still authorised by statute, and is therefore lawful until the Board directs release [16, 86]. Nor was Mr Faulkner the victim of a violation of Article 5(1). Such a violation requires exceptional circumstances warranting the conclusion that continued detention has become arbitrary, which were not present in Mr Faulkners case [17 23, 86]. On the question of the award of damages under the 1998 Act, the courts should be guided primarily by the principles applied by the ECtHR, which may be inferred from any clear and consistent practice of that court. The quantum of such awards should broadly reflect the level of awards made by the ECtHR in comparable cases brought by applicants from the UK or other countries with a similar cost of living [39]. The courts should resolve disputed issues of fact in the usual way even if the ECtHR in similar circumstances, due to the nature of its role, would not do so [39, 82]. Where it is established on the balance of probabilities that a violation of Article 5(4) has prolonged the detention of a prisoner past the point at which he would otherwise have been released, damages should ordinarily be awarded. The amount of such damages will be a matter of judgment, reflecting the facts of the case and having regard to guidance from the ECtHR and the national courts in comparable cases [75]. Pecuniary losses should be compensated in full [53, 70]. Though relevant in some circumstances, it will not ordinarily be appropriate to take into account as a mitigating factor that a claimant was recalled to prison following his eventual release [83]. Nor should damages be awarded merely for the loss of a chance of earlier release [82], or adjusted according to the degree of probability of release if the violation of Article 5(4) had not occurred [84]. Appellate courts do not ordinarily interfere with an award of damages simply because they would have awarded a different figure if they had tried the case. However, as the Court is in this case being asked to give guidance on the appropriate level of awards, and having regard to awards made by the ECtHR in other cases and to the fact that the liberty enjoyed by a person released on licence is precarious and conditional, the Court considers that an award of 6500 would adequately compensate Mr Faulkner [87]. Even where it is not established that an earlier hearing would have resulted in earlier release, there is a strong presumption that delay which violated Article 5(4) has caused the prisoner frustration and anxiety. Where such a presumption is not rebutted, an award of damages should be made, though on a modest scale [53, 67 68]. No such award should be made in cases where the frustration and anxiety were insufficiently severe to warrant an award, although that is unlikely to be the case where the delay was of around three months or more [66]. Following that approach, and having regard to ECtHR authorities, the award of 300 to Mr Sturnham was reasonable in his case [97]. Lord Carnwath concurs with the reasoning and conclusions in Lord Reeds judgment, but suggests a more selective approach to ECtHR authorities. He suggests focusing on those cases which explicitly decide points of principle, and eschewing those which are simply assessments of the facts [104 127].
Six individuals were involved in road traffic accidents involving vehicles whose drivers were insured by the appellant insurance company, Haven Insurance Company Limited (Haven). They all entered into conditional fee agreements (CFAs) with the respondent solicitors firm, Gavin Edmondson Solicitors Limited (Edmondson). Edmondson notified the claims via the online Road Traffic Accident Portal (the Portal), in accordance with the Pre action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the Protocol). Under this scheme, the solicitors lodge the details of the claim on the Portal, the insurers respond by admitting or denying liability, and then, if liability is admitted, the amount of the damages are negotiated, with recourse to a court hearing if the amount cannot be agreed. Under the Protocol, the insurer is expected to pay the solicitors fixed costs and charges direct to the solicitors. In this case, however, shortly after the claims were logged on the Portal, Haven made settlement offers direct to the claimants, on terms which did not include any amount for the solicitors costs. Haven told the claimants that they could pay the claimants more, and more quickly, by that route, than by going through the Portal. All the individuals eventually accepted these offers, and cancelled their CFAs with Edmondson. This practice by Haven has been repeated in many other cases, which are not before the court. Edmondson claimed against Haven for the fixed costs which it should have been paid under the Protocol. Specifically, Edmondson sought enforcement of the solicitors equitable lien. This is a form of security for the payment of fees owed by the client for the successful conduct of litigation, paid out of the fruits of that litigation. Edmondsons claim was dismissed at first instance. The Court of Appeal allowed their appeal, holding that, even though the claimants did not have a contractual liability for the firms charges, which meant that the traditional equitable lien claim failed, the remedy could be modernised to allow the solicitors to recover from the insurers their fixed costs that should have been paid under the Protocol. The Supreme Court unanimously dismisses the appeal. Lord Briggs gives the lead judgment, with which the rest of the Court agrees. Edmondson are entitled to the enforcement of the traditional equitable lien against Haven, as the client owed a contractual duty to pay the solicitors charges. However, the equitable lien should not have been modernised in the manner undertaken by the Court of Appeal. The solicitors equitable lien: the existing law As the early cases demonstrate, the solicitors equitable lien was developed to promote access to justice. It enables solicitors to offer litigation services on credit to clients who, although they have a meritorious case, lack the financial resources to pay up front for its pursuit [1], [33 34]. The equitable lien depends upon (i) the client having a liability to the solicitor for his charges; (ii) there being something in the nature of a fund in which equity can recognise that the solicitor has a claim (usually a debt owed by the defendant to the solicitors client which owes its existence to the solicitors services to the client); and (iii) something sufficiently affecting the conscience of the payer at the time of payment, either in the form of collusion with the client to cheat the solicitor or notice or knowledge of the solicitors claim against or interest in the fund [35 37]. Construction of the CFA does the client have any contractual liability to pay the solicitors charges? The client care letter, which explained that the solicitor would be able to recover its costs from the losing side if the claimants won, so that the claimants would not need to put their hands in their own pockets, did not mean that the claimants were not contractually liable for the solicitors fees. It merely limited the recourse from which Edmondson could satisfy that liability to the amount of its recoveries from the defendant, and it both preserved and affirmed the clients basic contractual liability. This was a sufficient foundation for the lien to operate as a security for payment, on a limited recourse basis [40 44]. Did Haven have notice of Edmondsons lien? In all the cases before the court, the requirement that the settlement debts must owe their creation to Edmondsons services provided to the claimants under the CFAs was satisfied on the facts. Edmondsons actions in logging the claim on the portal contributed to the settlement in two ways. First, it supplied the details of the claim to the insurer, and second, it demonstrated the claimants serious intention to pursue the claim, and ability to do so with the benefit of a CFA [45 46], [59 63]. Once a defendant or his insurer is notified that a claimant in a road traffic accident case has retained solicitors under a CFA, and that the solicitors are proceeding under the Protocol, they have the requisite notice and knowledge to make a subsequent payment of settlement monies direct to the claimant unconscionable, as an interference with the solicitors interest in the fruits of the litigation. In this case, Haven had notice of the lien because they knew that each of the claimants had retained Edmondson under a CFA, and also knew that Edmondson was looking to the fruits of the claim for recovery of its charges [48 50]. As such, the lien could be enforced against Haven by requiring it to pay the fee amounts in the CFAs direct to Edmondson, but only up to the amount of the agreed settlement payments [65]. To that limited extent the order made by the Court of Appeal needed to be varied. The re formulation of the equitable lien by the Court of Appeal It is not strictly necessary to address this issue in view of the decision on the traditional principle above, but the correctness or otherwise of the Court of Appeals reformulation of the principle has been extensively argued, and the Law Society has intervened to support it [51 52]. There are insuperable obstacles to extending the principle to cases where, although there is no contractual liability for the charges, the Protocol is breached. This includes the fact that the Protocol is purely voluntary and created no debt or other relevant legal rights at all. Whilst equitable remedies are flexible, they still operate according to principle. One of the principles of the equitable lien is that the client must have a responsibility for the solicitors charges. There is no general principle that equity will protect solicitors from any unconscionable interference with their expectations in relation to recovery of their charges [53 58].
Under section 12A of the Theft Act 1968 the offence of aggravated vehicle taking is committed where a person has committed the basic offence of taking a vehicle without authority, and owing to the driving of the vehicle, an accident occurred by which injury was caused to any person (s12A (2) (b)). If the injury is fatal, the offence carries a maximum of 14 years imprisonment. On 23 June 2012, the appellant and another man called Marriott took a van belonging to Marriots employer, without the latters consent. While driving it, he collided with a scooter on a bend in a narrow country lane. The driver of the scooter was killed, and the appellant was later found to be over the drink drive limit and uninsured. The appellant was charged jointly with Mr Marriott with aggravated vehicle taking contrary to s12A of the Theft Act 1968 and with causing the death of the scooter driver whilst uninsured contrary to s3ZB of the Road Traffic Act 1988. The Crown accepted that there was no fault in the manner of the appellants driving. A Not Guilty verdict was therefore directed on the Road Traffic Act count, in accordance with the decision in R v Hughes [2013] WLR 2461. The judge held that fault also had to be proved in relation to the accident on the aggravated vehicle taking count; a decision which the Crown appealed. The Court of Appeal allowed the appeal, relying on R v Marsh [1997] 1 Cr App R 67, in which it was held that no element of fault was required in the offence of aggravated vehicle taking. But it certified a question of law of general public importance for consideration by the Supreme Court, namely Is an offence contrary to s12A (1) and 2(b) of the Theft Act 1968 committed when, following the basic offence and before recovery of the vehicle, the defendant drove the vehicle, and without fault in the manner of his driving the vehicle was involved in an accident which caused injury to a person. The Supreme Court unanimously allows the appeal, holding that the driving must have been at fault for a person to be convicted of aggravated vehicle taking under s12A of the Theft Act 1968. Lord Sumption gives the judgment. The reasoning in R v Hughes cannot be distinguished, because the offences under s12A(2)(b) of the Theft Act 1968 and s3ZB of the Road Traffic Act 1988 are both drafted in terms which require a direct causal connection between the driving and the injury. [20 22; 30]. Strict liability is typically imposed where the enactment is regulatory or quasi criminal. Aggravated vehicle taking under s12A is neither: it is a serious crime, exposing defendants to the possibility of much longer maximum sentences. It imposes strict liability only to the extent that anyone who was party to the taking of the vehicle (and in the immediate vicinity at the time of the injury) commits the offence, whether or not he was driving at the time. The appellants driving explained how the vehicle came to be in the place where the accident occurred, but cannot be said to have caused it [23 29]. The test is as set out in R v Hughes: there must be at least some act or omission in the control of the car which involves some element of fault, whether amounting to careless/inconsiderate driving or not, and which contributes in some more than minimal way to the death [30; 32 3]. This summary is provided to assist in understanding the Courts decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: http://supremecourt.uk/decided cases/index.html
The appellants (the trustees) are the trustees of the Inter Vivos Trust of the late William Strathdee Gordon (the trust). The trust owns farmland comprising three fields (a grazing field, a 40 acre field and a 50 acre field) which were acquired due to their long term development potential. Each field was let out under separate leases at various times to a farming partnership. By 2003, the leases for all three fields were agricultural holdings for the purposes of the Agricultural Holdings (Scotland) Act 1991. In 2003, the trustees instructed a firm of solicitors (the predecessor firm to the respondents) to serve on the farming partnership notices to quit the three fields at the term of 10 November 2003. Thereafter, due to defects in the notices relating to the 40 acre field and the 50 acre field, the solicitors served further notices to quit in respect of the three fields dated 8 November 2004 requiring removal by 10 November 2005. The tenant did not give up possession of the fields on 10 November 2005. On the same day, the solicitors wrote to the trustees to withdraw from acting for the trust. The trustees then instructed another firm of solicitors who applied to the Scottish Land Court to seek removal of the tenant. By 17 February 2006, at the latest, the trustees had incurred material expense in instructing the new firm. On 24 July 2008, the Scottish Land Court gave judgment which refused to give effect to the notices to quit relating to the 40 acre and 50 acre field as the notices were inaccurate in their description of both the tenant and the relevant lease. As a result, both the 40 acre and the 50 acre field remain subject to leases which are agricultural holdings, thus preventing development. Under the Prescription and Limitation (Scotland) Act 1973 (the 1973 Act), where an obligation has subsisted for a continuous period of five years after the appropriate date, and no claim is made, the obligation ceases. Section 6(3) of the 1973 Act provides that, in cases of contractual breach, the appropriate date is the date when the obligation became enforceable. Under s11(1) of the 1973 Act, an obligation arising from a breach of contract becomes enforceable on the date when loss, injury or damage occurred. Section 11(3) qualifies this by specifying that where the creditor is not aware, or could not with reasonable diligence have been aware, that loss, injury or damage has been caused, an obligation becomes enforceable when the creditor first became so aware. On 17 May 2012, the trustees commenced legal action against the respondents. The respondents contended that any obligation on them to make reparation to the trustees as a result of the defective notices had expired because the trustees had not raised the action within five years of the date when the trustees had suffered loss which was upon service of the notices on 8 November 2004 or, alternatively, when the tenant failed to quit the land on 10 November 2005. The trustees argued that they were first aware of their loss when the Scottish Land Court issued its decision on 24 July 2008. The Outer House upheld the respondents plea of prescription. The Inner House refused the trustees appeal. It held that s11(3) of the 1973 Act postponed the start of the prescriptive period only when the damage was latent by requiring that the creditor should have actual or constructive knowledge of the occurrence of damage or expenditure, which was viewed as an objective fact. The prescriptive period ran from the time the trustees incurred liability for legal fees notwithstanding that they didnt then know that their application to the Scottish Land Court would fail. The Supreme Court unanimously dismisses the trustees appeal. Lord Hodge gives the lead judgment with which the other Justices agree. In Morrison v ICL [2014] UKSC 48, the Supreme Court determined that, in terms of s11(3) of the 1973 Act, the creditor needed to be aware only of the occurrence of the loss or damage and not of its cause [17] but in that case the Court was not required to address the question raised by this appeal i.e. whether under s11(3) the creditor must be able to recognise that he or she has suffered some form of detriment before the prescriptive period begins. This appeal raises the question of whether s11(3) starts the prescriptive clock when the creditor is aware that he or she has spent money (e.g. on a professional advisor) but does not know that that expenditure will be ineffective [18]. The phrase loss, injury or damage must be interpreted consistently throughout s11 of the 1973 Act. [19 20]. It therefore follows that s11(3) does not postpone the start of the prescriptive period until a creditor of an obligation is aware, actually or constructively, that he or she has suffered a detriment in the sense that something has gone awry which renders the creditor poorer or otherwise at a disadvantage [21]. This approach may be harsh to a creditor where he or she is aware of incurred expenditure but not that it entails the loss. However, the alternative approach suggested by the trustees would create uncertainty and a requirement for awareness of a head of loss would involve knowledge of the factual cause of the loss, which is an interpretation rejected in Morrison [22]. Any understanding on the part of the trustees that the expenditure they incurred in pursuing the claim in the Scottish Land Court would ultimately be recovered from the tenant when their claim was successful was irrelevant. On an objective assessment, the trustees suffered loss on 10 November 2005 when they did not obtain vacant possession. At that moment, the prescriptive period began to run under s11(1) unless it could be postponed by s11(3). There was no postponement under s11(3) because the trustees were aware that they had suffered detriment when they did not obtain vacant possession on 10 November 2005. In any event, they were actually or constructively aware that they had incurred legal expenses to obtain such possession by 17 February 2006. The trustees did not begin proceedings until 17 May 2012. It follows that the respondents obligation to make reparation had by that time prescribed [24]. Whilst this conclusion may lead to hard cases being common, there are live proposals for law reform. Following a Scottish Law Commission report, the First Minister of Scotland announced on 5 September 2017 that the Scottish Government intended to bring forward a Bill to reform the law of prescription in Scotland. It will be for the Scottish Parliament to decide whether the Commissions proposals for reform of the discoverability test in s11(3) of the 1973 Act should be adopted [25].
This appeal raises questions as to the proper construction of provisions of the Conveyancing and Feudal Reform (Scotland) Act 1970 (the 1970 Act) which establish and regulate the form of security over heritable property known as a standard security. In particular, the appeal addresses the circumstances in which a creditor is entitled to eject the debtor from the property over which the security was granted. The Appellants, two married couples, are proprietors and occupiers of their homes, which are subject to a standard security granted by each couple to the respondent bank in 1991. In each case the amount secured was any sum which the husband and wife owed or might owe to the bank, whether jointly or as individuals. In 1992 and 1993, the husbands, who are brothers, undertook to repay to the bank any indebtedness of the two firms in which they were involved. In 1995 the bank wrote to each of the brothers demanding repayment of the amounts which were then overdrawn on current accounts of the firms. When the sums were not paid, the bank took steps which were intended to allow it to sell the couples homes. In particular, in 1998 the bank treated the debtors as being in default and applied for, and was granted, warrant to exercise the powers available to creditors under standard condition 10 in Schedule 3 to the 1970 Act. This was the first time that the wives knew that their homes were at risk of repossession by the bank. The bank then applied to Edinburgh Sheriff Court for an order to eject the couples from their homes. Under section 5 of the Heritable Securities (Scotland) Act 1894 (section 5), however, a creditor can only do so if the proprietor has failed to repay the sum in question after formal requisition. The sheriff declined to grant an order for ejection, on the basis that the bank had not made a formal requisition for payment. The bank appealed to the Court of Session. An Extra Division held that a certificate of default which the bank had lodged in court, in accordance with section 24(2), constituted such formal requisition. The couples appealed to the Supreme Court. The Supreme Court unanimously allowed the appeal and held that the bank is not entitled to the remedies sought. Lord Rodger held that a certificate of default is simply a piece of evidence created for use in proceedings and, contrary to the opinion of the Extra Division, cannot constitute a formal requisition for the purposes of section 5, since that requisition has to be made before any proceedings are begun: [31]. Having observed that service of a calling up notice would satisfy section 5 ([30]), Lord Rodger also rejected the banks argument that, on a proper interpretation of section 24(1) of the 1970 Act, the bank should be treated as if it had served a calling up notice. In Lord Rodgers opinion such an interpretation of section 24(1) would water down an important precondition to the ejection procedure, which was intended as a protection for debtors: [32] [33]. Lord Rodger further held that the language of section 19(1) of the 1970 Act is mandatory, not permissive: [46] [47]. Therefore a creditor, like the bank in this case, who seeks repayment of the debt and, failing repayment, to sell the security subjects must serve a calling up notice: [51]. The bank had not done so and, for that reason also, Lord Rodger would have allowed the appeal. Lord Clarke agreed with Lord Rodger on this point: [85]. Lord Hope said that he agreed with Lord Rodger, but that the decision that the bank had pursued the wrong course when they decided to enforce these securities ran counter to the way the provisions of the Act had been understood and applied for decades: [54]. A certificate of default lodged eight years after raising the action cannot satisfy section 5 because, logically, a formal requisition must occur before any default by the debtor: [63] [64]. Where a creditor seeks discharge of the debt (in whole or in part), the section 19(1) procedure has to be followed and a calling up notice must be served: [73] [74], so that even if the bank had met the requirements of section 5, it would not have been entitled to the remedies sought as it had not served the calling up notice: [75]. Both Lord Rodger and Lord Hope held that a calling up notice and a notice of default are not mutually exclusive and that in certain circumstances a creditor can serve both: [48], [71]. Lord Walker agreed with Lord Rodger and Lord Hope: [76]. Lady Hale held that section 19(1) procedure is mandatory, observing that the policy of requiring a creditor to give notice of its intention to call in the security to all proprietors makes good sense: [80]. Lady Hale also held that the formal requisition requirement under section 5 had not been complied with as the wives did not have notice of the banks repayment demand until the proceedings began and thus were not given an opportunity to remedy their husbands default until it was too late: [81].
On 11 May 2004 an explosion occurred at ICLs factory in Glasgow. Nine people were killed and many others injured, but the present case has no bearing on the claims made by or on behalf of those persons. Morrisons shop was among a number of properties damaged. On 13 August 2009 Morrison began the present proceedings, seeking damages against ICL on the basis that the damage to its shop was caused by ICLs negligence, nuisance and breach of duty [1]. Under section 6(1) of the Prescription and Limitation (Scotland) 1973 Act, an obligation to make reparation is extinguished through the operation of prescription if a claim has not been made or the subsistence of the obligation not acknowledged within five years of the relevant obligation having become enforceable [6 7]. Section 11(1) provides that an obligation to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 as having become enforceable on the date when the loss injury or damage occurred. ICL accept that they had an obligation to make reparation to Morrison, but argue that it prescribed long before the action was raised [63]. Morrison dispute this, relying on section 11(3). It postpones the date from which the prescriptive period begins to run where the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred until a later date [2; 8]. Morrison argue that it was unlikely that, having ascertained that ICLs premises had been released, they could have investigated the cause of the explosion so as to be able to commence legal proceedings before 13 August 2004 [60]. In line with a number of authorities, the case proceeded in the courts below on the footing that under section 11(3) the commencement of the prescriptive period was postponed where the creditor was not aware, and could not with reasonable diligence have been aware, (1) that loss, injury or damage had occurred, and (2) that it had been caused by the breach of a duty owed to him. There was no doubt that Morrison knew damage had occurred on the date of the explosion. In order to establish that they also knew, or could with reasonable diligence have known, at that date or soon after that the explosion had been caused by a breach of duty, ICL relied on the principle expressed in the maxim res ipsa loquitur (the thing speaks for itself) [3]. ICL was successful before the Lord Ordinary, but the Inner House overturned his decision, holding that res ipsa loquitur did not apply. In its appeal to this Court, ICL has been permitted to raise the more fundamental issue of the interpretation of section 11(3) [5]. Lord Neuberger, Lord Sumption and Lord Reed agree that the appeal should be allowed. Lord Hodge and Lord Toulson dissent and would not have allowed the appeal. Lord Reed, with whom Lord Neuberger and Lord Sumption agree, considers that the words caused as aforesaid in section 11(3) are adjectival: they describe the loss with which the provision is concerned, but they do not have the effect of postponing the running of time until the creditor was aware that the loss had been caused by a breach of duty. Properly construed, section 11(3) is concerned with latent damage [15 17]. This is consistent with a natural reading of the provision in its context [19; 47]. If the draftsman had intended to require awareness that the loss had been caused by an actionable breach of duty, before the prescriptive period began to run, then he would have made this clearer [19], as he had done elsewhere in the Act in relation to the limitation period [20 22]. Lord Reed identifies a number of problems which would arise if the creditor had to be aware that there had been a breach of a legal duty owed to him. Prescription would run more or less quickly according to creditors awareness of the law [27]. In what sense could a creditor be aware of a breach of duty in advance of a judicial determination? [28] Describing awareness by reference to the creditors ability to advance a stateable prima facie case, as some recent Scottish decisions had done, would undermine legal certainty and go well beyond the language of the statute [29]. Lord Neuberger concurs, considering that the legislature could reasonably have assumed that in almost every case, five years from the date of loss, would be plenty of time for the creditor to discover all he needs to know to bring proceedings [55]. While careful consideration has to be given to the overturning of an approach followed for many years, Lord Reed points out counsels agreement that parties were unlikely to have been advised to delay initiating proceedings in reliance on the existing authorities. The approach previously followed rests on slender foundations for a matter of such importance, and has not gone unquestioned. The Justices agree that is not settled law [37]. Lord Hodge, with whom Lord Toulson agrees, also disagrees with the interpretation previously followed by the Scottish courts, but considers that section 11(3) should be construed as meaning that for time to begin to run there needs to be actual or constructive awareness of (i) more than minimal loss and (ii) its factual cause through an act or omission, but not (iii) that it is due to a breach of duty [87; 95]. He notes the Scottish Law Commissions 1989 recommendation (not implemented) that the legislation should be amended to require knowledge (a) that the loss, injury and damage was attributable in whole or in part to an act or omission and (b) of the identity of the defender [68]. All members of the Court agree that res ipsa loquitur has no application on a proper interpretation of section 11(3), and the majority agrees with Lord Hodges observations on that subject [37; 97 99]. In the light of the decision in this case, Lord Hodge urges that fresh consideration be given to the 1989 recommendations of the Scottish Law Commission.
This appeal concerns complex statutory provisions relating to corporation tax on financial transactions known as repos. These provisions have now been replaced. The general interest of the appeal lies in the approach to be taken to deeming provisions in statutes, namely those which create statutory hypotheses. A repo is a financial transaction under which shares or securities are sold at one price and are later repurchased by the seller at a different price, fixed in advance. Although in legal theory a sale and repurchase, in economic substance a repo is a secured loan by the buyer to the seller. The payment of the purchase price by buyer to seller is the advance of the loan; the shares or securities act as security for the loan; and the repurchase price is the repayment of the loan. A dividend or instalment of interest may become payable during the period of the repo. In a gross paying repo, the contract will provide for the interim holder (i.e. the buyer under the repo) to pay that dividend or interest over to the seller. Such a payment is, for tax purposes, called manufactured interest. In a net paying repo, the dividend or interest is retained by the interim holder, and the repurchase price adjusted to take account of the receipt. The Appellant (DCC) and a Bank entered into five consecutive net paying repo transactions in respect of UK government gilts. For the purposes of this case, these were treated as one composite transaction. The Bank sold gilts to DCC for 812m. During the 18 day period when DCC held the gilts, interest of 28.8m (payable half yearly) was received. The Bank repurchased the gilts for 785m. The Finance Act 1996 (the 1996 Act) made major changes in the taxation of interest for corporation tax purposes. Companies are now chargeable to corporation tax on the profits and gains from their loan relationships. In terms of section 84(1) of the 1996 Act, the credits and debits to be brought into account in respect of a companys loan relationships shall be the sums which, in accordance with an authorised accounting method, and when taken together, fairly represent . all interest under the companys loan relationships. Because of the approach of the tax legislation, the repos gave rise to three loan relationships. The question in this appeal was what debits and credits should be brought into account for DCC in respect of three loans relationships. They were: (1) the actual loan relationship between the UK government and the holder of the gilts. The payment of interest under the gilts created a credit in DCCs favour, as the holder of the gilts. (2) a deemed loan relationship between DCC (as lender) and the Bank (as borrower). Section 730A of the Income and Corporation Taxes Act 1988 (the 1988 Act) provided that the difference between the sale price and the repurchase price was to be treated as interest paid by the repurchaser (the Bank) on a deemed loan from the interim holder (DCC). This deemed payment gave rise to a credit for DCC. (3) a deemed loan relationship between the Bank (as lender) and DCC (as borrower) under which DCC was treated as making a payment of deemed manufactured interest: section 737A(5) of the 1988 Act & 97(2) & (4) of the 1996 Act. This deemed payment gave rise to a debit for DCC. The parties agreed that the second loan relationship created a credit to DCC of 1.8m (i.e. the repurchase price of 785m plus the gilt interest of 28.8m minus the purchase price of 812m.) There was no agreement as to the credit in respect of the first loan relationship (the interest on the gilts received by DCC) and the debit in respect of the third loan relationship (the payment of deemed manufactured interest deemed to have been made by DCC). The Special Commissioner and High Court reached different results. By a majority, the Court of Appeal concluded that the answer was credit 28.8m, debit 28.8m. DCC appealed to the Supreme Court. It argued that the answer was credit 2.9m; debit 28.8m, which would produce an overall debit. That would be to DCCs advantage, as it could set this against group profits to reduce the group overall tax bill. The Supreme Court unanimously dismisses the appeal, but adopts different reasoning to the Court of Appeal. It holds that the credit in respect of the interest on the gilts is 2.9m. The purpose of the deemed payment of manufactured interest by DCC being to cancel out that receipt and to allow it to be taxed as income in the hands of the Bank, the debit for that payment was also 2.9m. Lord Walker gives the judgment of the Court. Lord Walker examines the history of the tax treatment of repos. Under the regime prior to the 1996 Act, in the simple case where no gilt interest was payable during the period of the repo, the interim holder was treated as having made a loan of the sale price to the seller and was taxed on the interest he received on the loan, namely the difference between the repurchase price and the sale price. This corresponded to the economic reality of a repo. In a net paying repo, where interest was received by the interim holder during the period of the repo, the interim holder was deemed to make a payment representative of that interest to the seller: [14] [19]. There was a need for symmetry between these two payments. They were intended to cancel each other out, so that the buyer could be taxed on the repo as if it had made a secured loan at interest, and also to allow the gilts interest to be taxed as income of the seller: [26]. The 1996 Act effected a major change in the taxation of loan interest for corporation tax. Interest was to be computed in accordance with an authorised accounting method, in this case an accruals basis: [7], [23]. It was reasonable to expect that, when effecting this change, Parliament intended to preserve rather than to destroy the essentials of the existing provisions: [33]. Applying an accruals basis of accounting, DCCs credit in respect of interest on the gilts was 2.9m: the total payment of 28.8m accrued over a 6 month period, and DCC held the gilts for only 18 days: [30], [32], [44]. DCC submitted that applying an accruals basis of accounting to the deemed third loan relationship, the appropriate debit was 28.8m. No other result was possible, because it would mean that the balance of that payment vanished into the ether. Lord Walker emphasises that it is important when interpreting a deeming provision not to take the hypothesis further than is warranted: [40]. The payment which section 737A(5) of the 1988 Act deems DCC to make is said to be representative of the interest on the gilts received during the repo period. Section 97(2)(a) of the 1996 Act provides that this deemed payment is to be treated as interest paid under a hypothetical loan relationship. It was unwarranted to assume that this hypothetical loan relationship lasted no longer than the repo period, so that the entire payment needed to be treated as accruing during the 18 days during which DCC held the gilts. The interest on the gilts accrued during a period of six months but DCCs interest in the gilts lasted only 18 days: [42]. Its receipt of interest was therefore apportioned. The debit under a hypothetical relationship under which DCC was making a payment representative of that interest should also be a time apportioned sum, with the apportionment carried out in the same way: [43].
The appellants are employed as teachers at the respondent sixth form college [1]. They are paid an annual salary on a monthly basis [15]. Their contracts of employment incorporate terms relating to working time from a collective agreement known as the Red Book [2]. The Red Book provides that teachers will be required to work up to 195 days a year of directed time which includes teaching and other duties as directed by the Principal. In addition to directed time, a teacher is required to work for an unspecified amount of undirected time, defined as such reasonable hours as may be needed to enable [the teachers] to discharge their duties effectively, including, in particular, the marking of students work, the writing of reports on students, the preparation of lessons, teaching material and teaching programmes and such other duties as may reasonably be required [14 16]. The appellants regularly performed undirected duties outside of the normal term time hours, i.e. during evenings, weekends and/or days of annual leave [20 21]. On 30 November 2011, the appellants participated in a full day of lawful strike action. The Red Book provides that when sixth form teachers go on strike their employer can withhold their pay [2]. The respondent made deductions from the appellants pay at a rate of 1/260 of their annual pay, 260 being the number of weekdays in a calendar year [2]. The appellants brought proceedings in the County Court alleging the respondent was in breach of contract. They argued that the respondent was only entitled to deduct 1/365 of their annual pay, pursuant to section 2 of the Apportionment Act 1870 (the Act), which provides that all. annuities. shallbe considered as accruing from day to day, and shall be apportionable in respect of time accordingly. The Act defines annuities to include salaries [2 5]. Before the trial commenced, another case involving the same issue and very similar facts was decided in favour of the sixth form college in the High Court. The parties therefore agreed for final judgment to be entered in favour of the respondent. The appellants were granted permission to appeal directly to the Court of Appeal, which dismissed the appeal [6 7]. It found that section 2 did not imply a principle of equal daily accrual but a daily accrual at a rate gleaned from the construction of the contract. Elias LJ thought in this case the rate should be 1/195; 195 being the number of days of directed time. However, as some work done in undirected time was not necessarily linked to directed time, he accepted that the respondents approach of relating the work to the total number of annual working days was a sensible and acceptable principle [42]. The Supreme Court allows the teachers appeal. Lord Clarke, with whom the other justices agree, gives the lead judgment. The Act is intended to address the problems which arise in the context of periodic payments which are entire indivisible payments. The appellants salaries are such payments; the contracts do not provide expressly or by necessary implication for their salaries to paid to staff pro rata in respect of divisible obligations to perform work on each day of directed time. The Act is therefore applicable to their contracts [9 11]. The use of the word considered in section 2 of the Act shows that the section is a deeming provision, which deems that payments are to accrue day by day at an equal rate. Where an employment contract is an annual contract, it must therefore be apportioned on a daily basis over 365 days, yielding a daily figure of 1/365 [24, 30, 34, 37]. If the employment contract was other than an annual contract, then the rate would no doubt be different [48]. Section 7 of the Act provides that the Act will not apply where it is expressly stipulated that no apportionment shall take place [4]. This means that the principle of equal daily apportionment will apply unless the contract in clear terms addresses it and says it should not. Where the language of the contract is clearly inconsistent with this principle this will also amount to an express stipulation for the purposes of section 7 [38 40]. There is nothing in the appellants contracts which stipulates for any apportionment other than apportionment on a calendar day basis. The Court of Appeals approach assumes that working days are limited to days on which directed duties are carried out [28 29]. However, the appellants are paid a salary to perform the duties referred to in their contracts and there is no suggestion that some of those are paid and some unpaid. Given the wide scope of the responsibilities of teachers, none of the appellants are able to carry out all of their work during directed time, therefore the appellants carry out much of their work in undirected time outside of the normal college day on evenings, weekends and days of annual leave. While there is a relationship between directed work and undirected work, much undirected work is important in its own right and will not necessarily be directly linked to the directed time in the sense that a failure to work for the day will lead to a proportionate reduction in the undirected work done. This is clear from the vast variety of Professional Duties identified in the Red Book under the heading of Other Activities and not Teaching [18 20, 44 46]. Therefore, in the appellants case, section 2 of the Act deems that their salaries accrue at an equal daily rate and this is not excluded by section 7. The respondent was therefore only entitled to make deductions from the appellants pay at a rate of 1/365 of their annual salary [47 49].
The issue in this appeal is whether a local authority (ZCC) should be ordered to disclose social work records to the parties in proceedings concerning a child (A), which would reveal the identity of a young woman (X) who has made allegations that she suffered sexual abuse from As father (F) when she was a child. The parents of A separated when she was a baby. A lives with her mother (M) and F had unsupervised contact with her. When ZCC became aware of Xs allegations, which had been reported to ZCC by others, it approached M and advised her that she should take steps to protect A from the risk of sexual abuse by F. It did not tell M who had made the allegations, nor the details of what was alleged, but said they regarded them as credible. M applied to vary the contact arrangements so as to restrict Fs contact with A to supervised contact. F denies that he has sexually abused anyone. The court directed that ZCC should disclose the information in its possession in relation to Xs allegations against A to M and F. ZCC applied to the court for the order to be discharged on the grounds of the severe distress and emotional harm which the removal of her anonymity would cause X to suffer. Medical evidence provided to the court from the psychiatrist treating X indicated that her physical health had deteriorated to the point of being life threatening as result of stress; that disclosure of the records would be potentially detrimental to her health and that being required to participate in the contact proceedings would be immensely stressful for her, even with measures taken to protect her as a vulnerable witness. Peter Jackson J in the High Court held that the records should not be disclosed. In his view disclosure was unlikely to achieve anything valuable and it would be oppressive and wrong to compel X to give evidence at a subsequent hearing. The Court of Appeal reversed this decision and ordered disclosure, on the ground that the question of whether X should give evidence would arise for decision at a later stage. By the time of the appeal hearing in the Supreme Court, inadvertent disclosure of Xs identity had been made by ZCC to M and to the Guardian appointed to act on As behalf, but not to F. The Supreme Court unanimously dismisses the appeal. Lady Hale, with whom the other justices agree, gives the only judgment. The court was required to reconcile the irreconcilable. It was submitted on behalf of X that the impact of disclosure on her would be so severe as to violate her right not to be subjected to inhuman or degrading treatment protected by article 3 of the European Convention on Human Rights (ECHR), or at the very least interfere with her right to a private life under article 8. On the other side, As right to be protected from abuse also potentially engaged article 3, and restricting contact interfered with the right to family life under article 8 on the part of A, M and F. In addition, all three of the parties to the contact proceedings A, M and F were entitled to the right to a fair trial of those proceedings protected by article 6. Both article 3 and article 6 rights are absolute. ZCCs records enjoy public interest immunity from disclosure because of the public interest in encouraging members of the public to come forward to help the authorities to protect children, whether witnesses or the victims themselves [15]. The immunity is not absolute, and has to be balanced against the public interest in a fair trial. In children cases, the court may exceptionally take into account material which has not been disclosed to the parties, if disclosure would harm the child, but there was little or not risk of harm to A in this case[21]. But the common law principles have been affected by the Human Rights Act 1998 and the court now has to take account of the interests of third parties whose rights under the ECHR might be violated by disclosure [24]. This was not a case where Xs confidence could be preserved without harming others. Her allegations have to be properly investigated and tested so that A can either be protected from any risk of harm which F may present to her or can resume her normal relationship with him. If this was an ordinary public interest immunity claim, therefore, there would be no question where the balance of public interest would lie [30]. The impact on X meant that the states negative duty to avoid subjecting her to inhuman treatment in breach of article 3 had to be taken into account [31]. However, the context in which this treatment takes place affects the severity of its impact, and here not only was the state acting in support of some important public interests, but X was currently under specialist medical practitioners who would do their utmost to mitigate any further suffering which disclosure would cause her. Thus disclosure alone would not violate Xs rights under article 3 [32]. The court still had to balance Xs rights to a respect for her private life with the interests in disclosure. Courts had no power in ordinary civil proceedings to adopt any form of closed material procedure, which would restrict disclosure of the material to a judge and special advocate for the parties, and even if there was a greater latitude in children cases, the arguments against making such an inroad into the normal principles of a fair trial remained very powerful. Moreover in a case such as this F could not effectively challenge the allegations without a minimum of information which would inevitably disclose Xs identity [34]. The only possible conclusion was that the fair trial and family life rights of A, M and F were a sufficient justification for the interference with the privacy rights of X [35]. It did not follow, however, that X would have to give evidence in person in these proceedings. Disclosure might be enough to resolve matters either way. If a hearing was required, up to date medical evidence would be obtained for X and measures to protect her from courtroom confrontation could be considered. If she was too unwell to cope with oral questioning the court might have to do its best with the record of what she has said previously, perhaps supplemented by written questions put to her in circumstances approved by her doctor. The only concern of the court in family proceedings was to get at the truth [36].
European Arrest Warrants (EAWs) have been issued for the Appellants extradition to Poland, where they are wanted for the purposes of serving sentences of imprisonment. The Appellants extradition to Poland was ordered pursuant to the EAWs, and they have appealed against the orders on the grounds that the EAWs are defective under section 2(6)(c) of the Extradition Act 2003. This requires that an EAW in a conviction case contains particulars of any other warrant issued in the Category 1 territory for the persons arrest in respect of the conviction. Various domestic summonses or warrants were issued in Poland unsuccessful attempts to find and arrest the Appellants there, before the EAWs were issued. The Appellants case is that such domestic summonses or warrants required to be particularised in the EAWs. The High Court dismissed their appeals and certified two questions: (1) Is an EAW defective for the purposes of section 2(6)(c) of the Extradition Act 2003 if it does not also give particulars of domestic warrants issued in the category 1 territory to enforce that judgment or order within the issuing state? (2) Does the term any other warrant issued in the category 1 territory for the persons arrest in respect of the offence in section 2(6)(c) of the Extradition Act 2003 only require the European arrest warrant to include the conviction of the requested person, or does it, following Poland v Wojciechowski [2014] EWHC 412 (Admin), require the particularisation of the decision that required the requested person to serve an immediate sentence of imprisonment and was the decision following which it could be said that the requested person was unlawfully at large? The Supreme Court unanimously dismisses the appeal. Lord Mance gives the leading judgment, with which the other members of the Court agree. Lord Neuberger gives a short concurring judgment. Although the EU Framework Decision, on which the provisions of section 2 of the Extradition Act 2003 are based, does not explicitly distinguish between accusation and conviction cases, in practice there are significant differences in the bases on which EAWs in each category of case will rest [23 24]. In an accusation case, an EAW will normally be based on a domestic arrest warrant whereas in a conviction case, the natural basis of an EAW will be an enforceable judgment [25 26]. Where there exists an enforceable judgment, there is no reason why there should necessarily be any domestic warrant and, if there is, there is no obvious reason why it should be required to be evidenced in the EAW [26]. A domestic warrant may be required in a conviction case where a person is at large when convicted, has absconded, and is wanted for sentencing, and might in such circumstances be regarded as constituting the basis of any EAW issued to secure his surrender for sentencing [27]. But, where a person has been sentenced to an immediate sentence of imprisonment and is due to be in prison but has absconded, there is no obvious reason why there should be any domestic warrant at all or why, if there is one, it should be required to be evidenced in any EAW issued to secure the offenders return to serve his sentence [29]. The circumstances of the present appeals involve sentences of imprisonment which did not take immediate effect. Only the first and third EAWs issued in relation to Mr Sas are presently relevant. As regards the conviction the subject of the first EAW, Mr Sas was free until he lost his appeal, whereupon he was summonsed to report to detention, which he failed to do. A court order later issued to secure his attendance was irrelevant to the enforceability of the sentence, and could not constitute a warrant for the purposes of section 2(6)(c), and did not therefore need to be particularised in the EAW [31]. As regards the conviction the subject of the third EAW relating to Mr Sas, Mr Sas was given an immediate sentence of imprisonment but granted conditional release which was revoked when he breached the conditions of his release. When he failed to surrender, a domestic warrant was issued for his arrest [33]. As regards the conviction the subject of the EAW relating to Mr Goluchowski, the sentences of imprisonment passed were suspended, but ordered by the court to be served when he broke certain conditions. In these circumstances, both Appellants were due to attend prison without more as a result of court orders, and only when they failed to obey those orders were any domestic court orders, summonses or warrants issued to secure attendance at the relevant correction facility [32]. Those summonses or warrants are therefore irrelevant to the EAWs, did not need mentioning in them and did not constitute warrants under section 2(6)(c) of the 2003 Act [34]. It was not necessary for the EAWs to contain evidence of the decisions resulting in suspension of Mr Goluchowskis original sentence and subsequent activation of it, nor of Mr Sass conditional release and the subsequent revocation of that [35, 42 44]. On the face of the EAWs, details are given of judgments which by themselves required the Appellants to begin immediate service of a sentence [36]. Though they do not contain details of every judicial decision by virtue of which the sentence has become enforceable, to require such details would (i) mean that an EAW should set out a quite complex history of proceedings whereas box (b) of the prescribed form of EAW contemplates a single reference, (ii) run counter to principles of mutual confidence on which the EAW regime is based, and (iii) overlook the fact that it is always open to an executing state to request more information from the requesting state, as the UK seems to have done in these cases [43]. But a final decision on the extent of the details required is unnecessary since the processes by which the judgments became enforceable is clear from the subsequently obtained information, and EU caselaw establishes that an otherwise valid EAW is not to be treated as invalid or ineffective merely because the full history is not contained in the EAW itself [44]. Even if a reference to the activating decisions should, strictly speaking, have been made in the EAWs alongside the reference to the judgment as enforceable, this cannot mean, under European law or the Extradition Act 2003, that the EAWs should be treated as incapable of being executed [45].
The appellants are the executors of Mrs Beryl Coulter, who died in Jersey on 9 October 2007, leaving her residuary estate on trust for charitable purposes (the Coulter Trust). The appellants were domiciled in Jersey and the will specified that the trust was to be governed by Jersey law. The estate included substantial assets in the United Kingdom. In October 2010, the appellants retired as trustees (but not as executors) and were replaced by a UK resident trustee. The will was amended to make the proper law of the Coulter Trust the law of England and Wales. In 2014, the Coulter Trust was registered as a charity under English law. In 2013, Her Majestys Revenue and Customs (HMRC) determined that Mrs Coulters gift to the Coulter Trust did not qualify for the relief from inheritance tax in respect of gifts to charities provided by section 23 of the Inheritance Tax Act 1984. This was because section 23 limited relief to trusts governed by the law of a part of the United Kingdom, the Coulter Trust was governed by the law of Jersey at the date of Mrs Coulters death, and Jersey was not a part of the United Kingdom for the purposes of section 23. The appellants appealed against HMRCs determination on the basis it is incompatible with article 56 of the Treaty Establishing the European Community (EC) (now article 63 of the Treaty on the Functioning of the European Union (TFEU)), which prohibits restrictions on the free movement of capital between EU member states, and between member states and third countries. HMRC argues that article 56 does not apply here because a movement of capital between the United Kingdom and Jersey should be regarded as an internal transaction taking place within a single member state. The Court of Appeal accepted the appellants submission that Jersey is to be regarded as a third country for the purposes of article 56, but decided that the restriction of section 23 to trusts governed by the law of part of the United Kingdom was nevertheless justifiable under EU law. The issues arising in this further appeal are: (1) whether a movement of capital between the United Kingdom and Jersey should be regarded as an internal transaction taking place within a single member state for the purposes of article 56; and (2) if not, whether the refusal of relief under section 23 in respect of the gift to the Coulter Trust is justifiable under EU law. The Supreme Court unanimously allows the appeal. Lord Reed and Lord Lloyd Jones give the judgment, with whom all members of the Court agree. Article 56 prohibits all restrictions on payments or the movement of capital between member states, and between member states and third countries. It is common ground between the parties that article 56 applies to gifts to charities and that Jersey is not a member state. The issue therefore turns on whether Jersey is to be regarded as a third country [7]. The Bailiwick of Jersey is a Crown Dependency which, along with the other Channel Islands, enjoys a unique relationship with the United Kingdom through the Crown [8]. Jersey is not an independent state in international law; the UK government is responsible for its international relations and has the power to extend to Jersey the operation of a treaty concluded by the United Kingdom [10]. Article 29 of the Vienna Convention on the Law of Treaties 1969 provides that a treaty is binding upon each party in respect of its entire territory unless a different intention is expressed [11]. Article 299(1) EC (now article 355 TFEU) makes express provision for the territorial scope of EU law [13]. Protocol 3 to the Treaty of Accession 1972 provides that the free movement of goods applies to the Channel Islands [14]. However, other rules of EU law do not apply in Jersey, including the EU rules on free movement of capital [15]. Decisions of the Court of Justice of the European Union (the CJEU) provide a systematic and consistent approach to this issue. The question of whether a territory is to be regarded as a third country is context specific and will depend on whether, under the relevant Treaty of Accession and supplementary measures, the relevant provisions of EU law apply to that territory [35]. The decision of Prunus SARL v Directeur des services fiscaux (Case C 384/09) [2011] I ECR 3319, in which the CJEU held that the British Virgin Islands were to be treated as third countries, is determinative of the issue in the present case [36]. Jersey is to be considered a third country for the purpose of a transfer of capital from the United Kingdom [37]. Accordingly, EU rules on the free movement of capital do apply to transfers of capital between the United Kingdom and Jersey, and it is accepted that the refusal of relief under section 23 is a restriction on that free movement. The remaining question is therefore whether the restriction is justifiable under EU law [38]. On its face, section 23 does not impose any restriction on the free movement of capital and is therefore compliant with article 56 [50]. The only restriction is that imposed by the judicial gloss placed on the words now found in section 989 of the Income Tax Act 2007 by the House of Lords in Camille and Henry Dreyfus Foundation Inc v Inland Revenue Comrs [1956] AC 39 (Dreyfus) a restriction which, when incorporated into section 23, has the effect of confining relief under that provision to trusts governed by the law of a part of the United Kingdom and subject to the jurisdiction of the UK courts. There can be no doubt that the Dreyfus gloss on section 989, as applied to section 23, is incompatible with article 56. It is plain that the restriction of relief from inheritance tax to trusts governed by the law of a part of the United Kingdom cannot be justified under EU law [51]. Article 56 is directly applicable and must be given effect in priority to inconsistent national law, whether judicial or legislative in origin. The Dreyfus gloss on section 989 cannot be applied to section 23 in situations falling within the scope of article 56. Since it is undisputed that the Coulter Trust satisfied the conditions at the time, it follows that it qualifies for the relief [52].
This appeal concerns the defence of illegality. The Supreme Court is asked to decide whether the appellant, Ms Henderson, can claim damages for loss she has suffered as a result of her conviction for her mothers manslaughter from the respondent, Dorset Healthcare University NHS Foundation Trust (Dorset Healthcare). Ms Henderson suffers from paranoid schizophrenia or schizoaffective disorder. In August 2010, she was under the care of the Southbourne community mental health team, which was managed and operated by Dorset Healthcare. On or around 13 August 2010, Ms Hendersons condition began to deteriorate. On 25 August 2010, she stabbed her mother to death whilst experiencing a serious psychotic episode. Ms Henderson was convicted of manslaughter by reason of diminished responsibility. In her criminal trial, the judge said that there was no suggestion that Ms Henderson should be seen as bearing a significant degree of responsibility for what she had done. The judge sentenced Ms Henderson to a hospital order under section 37 and an unlimited restriction order under section 41 of the Mental Health Act 1983. She has remained in hospital ever since, and is not expected to be released for some time. Ms Henderson brought a negligence claim against Dorset Healthcare, seeking damages for personal injury and other loss and damage. Dorset Healthcare admitted liability for its negligent failure to return Ms Henderson to hospital when her psychiatric condition deteriorated. It accepted that, if it had done this, the tragic killing of Ms Hendersons mother would not have taken place. However, it argued that Ms Hendersons claim is barred for illegality, because the damages she claims result from: (i) the sentence imposed on her by the criminal court; and/or (ii) her own criminal act of manslaughter. Similar claims for damages to those made by Ms Henderson were held to be irrecoverable by the House of Lords in Gray v Thames Trains Ltd [2009] UKHL 33; [2009] AC 1339 (Gray). The recoverability of the damages claimed was, therefore, ordered to be tried as a preliminary issue. The High Court judge determined the preliminary issue in favour of Dorset Healthcare, and the Court of Appeal dismissed Ms Hendersons appeal. Both the High Court and the Court of Appeal held that the facts of Ms Hendersons claim are materially identical to those in Gray, which was binding upon them. Ms Henderson appealed to the Supreme Court. The appeal raises the question of whether Gray can be distinguished and, if not, whether it should be departed from, in particular in the light of the more recent Supreme Court decision concerning illegality in Patel v Mirza [2016] UKSC 42; [2017] AC 467 (Patel). The Supreme Court unanimously dismisses Ms Hendersons appeal, and holds that her claim against Dorset Healthcare is barred by the illegality defence. Lord Hamblen gives the judgment, with which all members of the Court agree. Ms Hendersons appeal raises three main issues [32]. Issue 1: Can Gray be distinguished? In Gray, the House of Lords held that Mr Grays negligence claim was barred by the defence of illegality because the damages he sought resulted from: (i) the sentence imposed on him by the criminal court; and/or (ii) his own criminal act of manslaughter [36]. The courts below held that the facts of Ms Hendersons and Mr Grays claims are materially identical, so Ms Hendersons claim is barred for illegality for the same reasons as Mr Grays [30 31]. However, Ms Henderson argues that the reasoning in Gray does not apply or can be distinguished, because Gray concerned a claimant with significant personal responsibility for his crime. In contrast, in Ms Hendersons criminal trial, the judge said that there was no suggestion that Ms Henderson should be seen as bearing a significant degree of responsibility for what she had done [82]. The Court rejects Ms Hendersons argument and finds that Gray cannot be distinguished. The crucial consideration in Gray was that the claimant had been found to be criminally responsible for his conduct, not the degree of personal responsibility which that reflected [83 86]. Lord Phillips reserved judgment in Gray on whether the illegality defence would apply to a case where the claimant did not bear significant personal responsibility for their crime, but this was not the view of the majority [79 81]. Issue 2: Should the Court depart from Gray? In Patel, the Supreme Court held that the proper approach to the illegality defence at common law was one based on a balancing of public policy considerations rather than a reliance based approach [61]. The majority held the underlying policy question to be whether allowing recovery for something which is illegal would produce inconsistency and disharmony in the law and so cause damage to the integrity of the legal system. In assessing whether the public interest would be harmed in that way, the court should consider a trio of considerations, namely: stage (a) the underlying purpose of the illegality in question, and whether that purpose would be enhanced by denying the claim; stage (b) any other relevant public policy on which denying the claim may have an impact; and stage (c) whether denying the claim would be a proportionate response to the illegality [66 68, 113]. With regard to the application of Patel, the Court confirms, first, that it concerned common law illegality rather than statutory illegality [74]; secondly, that although it concerned a claim in unjust enrichment, the Courts decision provides guidance on the proper approach to the common law illegality defence across civil law generally [76]; and thirdly that the principles identified in Patel are derived from the pre existing case law and earlier decisions on the illegality defence remain of precedential value, unless they are incompatible with the Courts reasoning in Patel [77]. Ms Henderson contends that the Court should depart from Gray on three grounds. The first ground is that the reasoning in Gray is incompatible with the approach to illegality adopted by the Supreme Court in Patel. The Court finds, however, that the essential reasoning in Gray is consistent with Patel, and so remains good law [89 96]. The second ground is that Gray should not apply where the claimant has no significant personal responsibility for the criminal act and/or there is no penal element in the sentence imposed on them by the criminal court [97 103]. The Court rejects this argument because allowing a claimant to recover damages for loss that results from: (i) the sentence imposed by the criminal court; and/or (ii) an intentional criminal act for which the claimant has been held to be criminally responsible would give rise to inconsistency that is damaging to the integrity of the legal system. The criminal under the criminal law would become the victim under the civil law [106]. Requiring the civil court to assess whether or not a civil claimant has a significant degree of personal responsibility for their crime would create a clear risk of inconsistent decisions being reached in the criminal and civil courts [108]. In any case, it is unclear why significant personal responsibility is the appropriate threshold, and how the civil courts should decide whether a claimant meets that threshold [110 111]. There may be some exceptional trivial or strict liability offences which do not engage the illegality defence. However, the serious criminal offence of manslaughter by reason of diminished responsibility is not one of those exceptions [112]. The third ground is that Ms Hendersons claim would be allowed under the trio of considerations approach in Patel [113 116]. With regard to the trio of considerations, the Court confirms first that they should usually be capable of being addressed as a matter of argument and at a level of generality that does not make evidence necessary [115]; secondly, that they involve a balancing between policy considerations arising under stages (a) and (b) and that stage (c) relates to proportionality and factors specific to the case rather than general policy considerations [116 120]; thirdly, that, where they arise, it is appropriate to give great weight to the policy considerations that a person should not be allowed to profit from his own wrongdoing and that the law should be coherent [121 122]; fourthly, that where the policy considerations come down firmly against denial of the claim it will not be necessary to consider stage (c) and proportionality [123]; and fifthly, that in relation to proportionality, centrality and the closeness of the causal link between the illegality and the claim will often be factors of particular importance [124]. In relation to stage (a), the policy reasons which support denial of Ms Hendersons claim include the consistency and public confidence principles identified in Gray [119, 125 126]. They also include: (i) the gravity of her criminal offence; (ii) the public interest in the proper allocation of NHS resources; (iii) the very close connection between her claim and her offence; and (iv) the public interest in deterring, protecting the public from and condemning unlawful killing [127 129]. Although a claimant in Ms Hendersons position may not be deterred from unlawful killing by being deprived of a civil right to compensation, there may well be a broader deterrent effect in a clear rule that unlawful killing never pays. Any such effect is important given the fundamental importance of the right to life. To have such a rule also supports the public interest in public condemnation and due punishment [130 131]. In relation to stage (b), the policy reasons relied upon for allowing Ms Hendersons negligence claim do not begin to outweigh those which support the denial of the claim. In particular, as Gray makes clear, the resulting inconsistency in the law is such as to affect the integrity of the legal system and the underlying policy question identified in Patel is accordingly engaged [137]. In relation to stage (c), the four factors relevant to proportionality identified in Patel do not show that denial of the claim would be disproportionate [138 143]. It follows that the trio of considerations approach in Patel does not lead to a different outcome in Ms Hendersons case [144]. Gray should therefore be affirmed as being Patel compliant and should be applied and followed in similar cases [145]. Issue 3: Can Ms Henderson recover damages for any of the heads of loss she has claimed? The Court answers this question no. Ms Henderson cannot claim damages for loss of liberty or for loss of amenity during her detention in hospital because these heads of loss result from the sentence imposed on her by the criminal court. The other heads of loss cannot be recovered because they result from Ms Hendersons unlawful killing of her mother [148]. It would be inappropriate for the Court to subvert the operation of the Forfeiture Act 1982, which prevents Ms Henderson from recovering her full share of her mothers estate [149].
This case concerns a secure weekly tenancy of a house granted to a husband and wife, Mr and Mrs Sims, as joint tenants, by Dacorum Borough Council. A secure periodic tenancy can only be brought to an end by a landlord by obtaining and executing a court order for possession. By contrast, there is no such restriction on the ability of a tenant to exercise a common law right to bring a periodic secure tenancy to an end by serving a notice to quit on the landlord. Following the decision of the House of Lords in Hammersmith and Fulham LBC v Monk [1992] Ac 478 (Monk), a periodic tenancy held by joint tenants may be validly brought to an end by only one of the joint tenants serving a notice to quit on the landlord. Under the terms of the tenancy agreement in this case it was specifically provided in clause 100 that, if either of the joint tenants wished to terminate their interest in the tenancy, they were required to terminate the full tenancy. Clause 101 provided that Dacorum would then decide whether the other joint tenant could remain in the property or be offered more suitable accommodation. Mr and Mrs Sims separated, and Mrs Sims served a notice to quit on Dacorum. Dacorum therefore contends that the secure tenancy has come to an end, and Mr Sims must vacate the house. Monk was decided before the Human Rights Act 1998 was enacted. Mr Sims contends that his right to a private and family life under Article 8 of the European Convention on Human Rights and his right peacefully to enjoy his possessions under Article 1 of the first protocol to the Convention would be wrongfully infringed if Dacorums claim were to succeed. The issue in this appeal is therefore whether the eviction of Mr Sims would be a wrongful infringement of his rights either: The Supreme Court unanimously dismisses the appeal. Lord Neuberger (with whom the other Justices agree) gives the only judgment. In his written case and oral submissions, counsel for Mr Sims retreated from the suggestion that the Supreme Court should revisit the decision in Monk, but maintained that the effect of that decision in the present case infringed Mr Sims rights under Article 8, or under A1P1 Article 1 of the first protocol to the European Convention of Human Rights [14 19] (1) under Article 1 of the first protocol to the Convention (A1P1); or (2) under Article 8 of the Convention. Under A1P1, everyone is entitled to peaceful enjoyment of his possessions and nobody should be deprived of his possessions except in the public interest and subject to conditions provided for by law [14]. Clause 100 provided that the tenancy could be determined by one only of the tenants and Clause 101 provided that if that occurred, Dacorum could decide to permit him to stay in the house. In this case, Mrs Sims determined the tenancy in accordance with clause 100 and Dacorum did consider whether to let Mr Sims remain in accordance with clause 101 and decided not to let him do so. The way in which Mr Sims was deprived of his property was thus specifically provided for in the agreement which created the property, that is, his interest in the tenancy. He lost this property right as a result of the bargain that he himself made. [15 16]. In these circumstances, the only arguments Mr Sims could raise would be either (1) that clause 100 is irrational or so unreasonable as to offend the right to enjoy the property concerned or (2) that Dacorum unfairly or irrationally operated clause 101. However, clause 100 is consistent with the common law principle in Monk, and the effect of clause 100 is mitigated by clause 101. The effect of Monk for a joint tenant in Mr Sims position is harsh. However, when one of two joint periodic tenants serves a notice to quit, someones interest has to suffer; if the position were otherwise than it is under Monk, there would be a harsh result for the other joint tenant or for the landlord [17]. The Deputy District Judge considered Dacorums operation of clause 101, and concluded that procedurally Mr Sims had been accorded ample opportunity to present his case and that Dacorum had carefully considered the position and had fully reviewed its own decision. In light of the Deputy District Judges conclusions of primary fact, she reached the only appropriate conclusion she could have reached, namely that Dacorums operation of clause 101 was reasonable. In these circumstances, Mr Sims case based on A1P1 fails. [18 19]. Article 8 of the European Convention of Human rights [20 25] Under Article 8.1 of the Convention, everyone is entitled to respect for his private life [and] his home and Article 8.2 provides that there should be no interference by a public authority with the exercise of this right save if is in accordance with the law, necessary in a democratic society, and in the interests of the economic well being of the countryor for the protection of the rights or freedoms of others [20]. Mr Sims was entitled to raise the question of the proportionality of Dacorums pursuit of the claim for possession of the house in light of previous decisions of the House of Lords and Supreme Court. However, proportionality does not assist Mr Sims. The Deputy District Judge carefully assessed Dacorums decision making process and she was plainly correct that it was lawful and proportionate to make an order for possession in this case [21]. Service of the notice to quit put at risk Mr Sims enjoyment of his house which had been his family home for many years. However, Mr Sims Article 8 rights were accorded full respect, given that (1) his tenancy was determined in accordance with agreed contractual terms, (2) he received the benefit of clause 101, (3) under the Protection from Eviction Act 1977 he could not be evicted with a court order, (4) the court would have to be satisfied that Dacorum was entitled to evict him, and (5) the court could not make such an order without permitting him to raise a claim that it would be disproportionate to evict him[22 23]. Accordingly, Mr Sims case cased on Article 8 fails [24 25].
The issue in this appeal is the proper approach of the courts when a defendant to a claim for possession of his home raises a defence of unlawful discrimination by the landlord, contrary to the Equality Act 2010 (the EA); in particular, whether such defences may be dealt with in the same way as defences alleging a breach of the rights to respect for the home protected by Article 8 of the European Convention on Human Rights. The appellant is a 47 year old man. He has chronic and severe mental ill health amounting to a disability for the purposes of the EA. He became homeless in 2010 and under the Housing Act 1996 the local housing authority was under a duty to secure accommodation for him. That duty would cease if he refused an offer of suitable accommodation elsewhere. The appellant was placed in a flat in a building in Glastonbury leased by the respondent housing association and numerous attempts were made to find an acceptable home for his permanent occupation over the next nine months. He refused them all so in April 2011 the local authority notified him that the duty to house him had been discharged. The respondent served notice on him to quit the flat and issued a claim for possession. The appellants defence was that a possession order would (i) amount to disability discrimination and (ii) breach his Article 8 rights, and it was supported by medical evidence of his vulnerability and need for intensive therapy. During the course of the proceedings the local authority came under a duty to house him again after the appellant made a fresh homelessness application in December 2011. The duty ended after he was offered, but refused, an offer of a property in the same road as the flat, in which he was still living. The respondent applied to reinstate the proceedings and a preliminary hearing took place in June 2013 in the Bristol County Court to decide whether or not the appellant could raise his defence. The judge took the same approach to both grounds and held summarily that neither defence was arguable. The appellants appeals from this decision were dismissed in the courts below. In May 2014 the freeholder of the building in which the appellant has his flat served notice to quit on the respondent. The respondent is therefore now in breach of its legal obligation to give vacant possession of the flat so that the building can be sold. The Supreme Court unanimously dismisses the appeal. Lady Hale, Lord Neuberger and Lord Wilson give substantive judgments stating the applicable principles and holding that the judge misdirected himself in adopting the same approach to the defence of disability discrimination as to the alleged breach of Article 8. However, for the reasons given by Lord Wilson, supervening events mean that the matter should not be remitted to the court below, as an order for possession is now inevitable. A complaint of disability discrimination under s 15 EA in response to an eviction raises two key questions: (i) whether the eviction is because of something arising in consequence of the complainants disability; and (ii) whether the landlord can show that the eviction is a proportionate means of achieving a legitimate aim [18]. A court considering whether an eviction is proportionate when a defence under Article 8 is raised can assume that an order would meet the legitimate aims of vindicating a local authoritys property rights and of enabling the authority to comply with its statutory duties in the allocation and management of the housing stock available to it. In virtually every case there will be a strong case for finding that the possession order would be a proportionate means of achieving those aims. Thus as a general rule the defence should be considered summarily and only be allowed to proceed if it crosses the high threshold of being seriously arguable [20 22, 52]. The substantive right to equal treatment protected by the EA is different from and extra to the Article 8 right: it applies to private as well as public landlords; it prohibits discriminatory treatment, for example, by evicting a black person where a white person would not be evicted; and it grants additional rights to disabled people to reasonable adjustments to meet their particular needs. It cannot be taken for granted that the aim of vindicating the landlords property rights will almost invariably make an eviction proportionate: the protection afforded by s 35(1)(b) EA is plainly stronger than that given by Article 8 [31, 55 58]. The burden will be on the landlord to show that there were no less drastic means available and that the effect on the occupier was outweighed by the advantages [34]. Summary disposal may still be appropriate, but not in cases where a claim is genuinely disputed on grounds that appear to be substantial, where disclosure or expert evidence might be required [36, 60]. In the appellants case, the judge misdirected himself and adopted the wrong approach. He should have undertaken the proportionality assessment himself in relation to each defence, and he wrongly regarded this exercise as the same for the discrimination defence as for the Article 8 defence [38]. There was no point however in allowing the appeal and remitting it to the county court. The notice to quit that has since been served by the freeholder of the building means that the respondent is in breach of its legal obligations and leaves the freeholder unable to proceed with the proposed sale [71]. The appellants disability has also caused him to refuse undeniably suitable accommodation in the same street and there is no evidence that he has embarked on the therapy that is said to be necessary to allow him to accept the need for change [74]. These supervening events mean that a possession order would be inevitable. It would be unjust to the respondent and the freeholders and no kindness to the appellant to prolong matters further [41, 75 76].
This appeal relates to the UKs ability to deport the appellant, a Zimbabwean citizen, who, while lawfully resident here, has committed serious crimes. He seeks to challenge the order for his deportation by reference to article 3 of the European Convention on Human Rights (the Convention), which provides: No one shall be subjected to torture or inhuman or degrading treatment or punishment. He is HIV positive and wishes to argue that if deported to Zimbabwe he would be unable to access the medication which he receives in the UK and which prevents his relapse into full blown AIDS. The appellant was born in Zimbabwe in 1987. He came to the UK in 2000 and was later granted indefinite leave to remain. He was convicted of battery and a deportation order was made against him. He was detained pending deportation but was released. He was then convicted of offences including possession of a firearm and ammunition and sentenced to further imprisonment. While in prison, he applied to the Secretary of State to revoke the deportation order. He invoked his right to respect for private and family life under article 8 of the Convention and argued that his medical condition was relevant. His evidence was as follows. He had been diagnosed as HIV positive. He had later undergone antiretroviral therapy (ART), initially with a drug that caused intolerable side effects but later with another drug, Eviplera, which had improved his condition without significant side effects. Whether he could access ART in Zimbabwe was doubtful; without it, he would be prey to infections which could lead to his death. After considering the evidence, the Secretary of State refused to revoke the order. The appellant appealed to the First tier Tribunal and then the Upper Tribunal, relying each time on article 8. He conceded that, in the light of the House of Lords decision in N v Secretary of State for the Home Department [2005] UKHL 31, [2005] 2 AC 296, his appeal could not succeed by reference to article 3. Before the hearing in his appeal to the Court of Appeal, the Grand Chamber of the European Court of Human Rights (the ECtHR) delivered its judgment in Paposhvili v Belgium [2017] Imm AR 867. The appellant formed the view that the judgment had expanded the scope of application of article 3 in cases like his and decided to seek a rehearing before a tribunal at which he could rely on it instead of article 8. He conceded in the Court of Appeal, however, that it was bound by the N case, even if that had become out of step with the ECtHRs case law as a result of Paposhvili. The Court of Appeal duly dismissed his appeal. He now appeals to the Supreme Court, asking it to depart from the N case by reference to Paposhvili and to remit his application for rehearing by reference to article 3. The Supreme Court unanimously allows the appeal. It remits the appellants claim under article 3 to be heard by the Upper Tribunal (and, if practicable, by a panel including its President) on up to date evidence properly directed to the substantive and procedural requirements set out by the Grand Chamber of the ECtHR. Lord Wilson gives the only judgment, with which the other Justices agree. In D v United Kingdom (1997) 24 EHRR 423, the ECtHR held that to remove a man who was on his deathbed to a state where no care was available for him would violate article 3; and it referred to the exceptional circumstances and compelling humanitarian considerations in his case [14]. In the N case, the House of Lords considered the ECtHRs decision in this case and others like it concerning article 3. It held that the test in such cases was whether the applicants illness had reached such a critical stage that it would be inhuman to deprive him of the care he was receiving and to send him to an early death in the receiving state, unless there was care available there to enable him to meet it with dignity [15 17]. In N v United Kingdom (2008) 47 EHRR 39, the ECtHR held that, although there might be other very exceptional cases in which the humanitarian considerations are equally compelling to those in the D case, a high threshold for violation of article 3 should be maintained [18]. In Paposhvili, the ECtHR reconsidered what those other very exceptional cases were. It held (at para 183) that they should now be taken to include cases in which there were substantial grounds for believing that the applicant, while not at imminent risk of dying, would face a real risk in the receiving country of being exposed either to a serious, rapid and irreversible decline in health resulting in intense suffering, or to a significant reduction in life expectancy [22]. According to the Court of Appeal in the present case, the test for violation of article 3 following Paposhvili is no longer whether death is imminent in the removing state, but whether intense suffering or death is imminent in the receiving state because treatment is unavailable there [29]. The Court of Appeal was, however, mistaken in taking the ECtHRs phrase, a significant reduction in life expectancy, to mean the imminence of death [30]. But what does the phrase mean? Significant here means substantial: only a substantial reduction in life expectancy would reach the level of severity required by article 3. In addition, a reduction in life expectancy to death in the near future is more likely to be significant than any other reduction [31]. In Paposhvili, the ECtHR also set out requirements (at paras 186 to 191) for the procedure to be followed in relation to applications under article 3 to resist return by reference to ill health [23, 32]. One requirement is for the applicant to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if removed, he or she would be exposed to a real risk of being subjected to treatment contrary to article 3. That is a demanding threshold for the applicant. His or her evidence must be capable of demonstrating substantial grounds for believing that it is a very exceptional case because of a real risk of subjection to inhuman treatment. He or she must put forward a case which, if not challenged or countered, would establish a violation of the article [32]. If the applicant presents evidence to that standard, the returning state can seek to challenge or counter it. Paposhvili states that, in doing so, the returning state must dispel any doubts raised by the evidence; but any doubts here should be read to mean any serious doubts [33]. The court should only refuse to follow a decision of the ECtHR in highly unusual circumstances, and there is no question of the courts refusing to follow Paposhvili. In the light of that judgment, the court should now depart from the decision of the House of Lords in the N case [34]. The appellant first raised his article 3 claim in the Court of Appeal and, having accepted that it could not succeed at that level, he did not present evidence to support it. It was inappropriate for the Court of Appeal to extract medical reports from the evidence submitted in support of his article 8 claim, which did not address the Paposhvili requirements [36]. The court should not now determine whether the reports cross the threshold required of an applicant under article 3 following Paposhvili. The proper course is to allow the appeal and to remit the article 3 claim to be heard on up to date evidence [37].
AMT Futures Limited (AMTF) is incorporated in the United Kingdom and is based in London. It provides services as a derivatives broker for clients who wish to trade in derivatives and who are referred by introducing brokers. Among AMTFs former clients were people domiciled in Germany, Austria, Switzerland or Belgium and who were introduced to AMTF by independent brokers based in Germany. AMTF charged its clients commission for its service and paid commission to the introducing brokers. Some of AMTFs former clients, who were dissatisfied with the financial results of their transactions, commenced legal proceedings in Germany against both the introducing brokers and AMTF seeking damages under the German law of delict. The claim against the introducing brokers was that they had given bad investment advice or had failed to warn of the investment risks. The claim against AMTF was that it had encouraged the brokers to behave as they did by paying them commission and had therefore breached a duty in tort which it had owed to the former clients to prevent any transactions being undertaken contrary to their interests. AMTF challenged the jurisdiction of the German court. AMTF estimates that by August 2013 it had spent over 2 million on investigating the claims, legal costs and settlement costs. The contracts between AMTF and its former clients contained clauses which provided that English law would govern the rights and obligations of the contracting parties and the construction of their contract and that the English courts would have exclusive jurisdiction in legal proceedings relating to the contract. AMTF asserts that the former clients have breached their contracts by raising legal proceedings against it in Germany and asserting rights under the German law of delict. AMTF has raised legal proceedings against the former clients, seeking damages for breach of contract in the High Court in London. AMTF alleges that MMGR, a German company which carries on business as a firm of lawyers in Germany, induced the former clients to issue proceedings against AMTF in Germany in breach of the exclusive jurisdiction and applicable law clauses in their contracts with AMTF. AMTF commenced proceedings in the High Court in London against MMGR, based on the English law tort of inducing breach of contract and seeking both damages and injunctive relief to restrain MMGR from inducing clients to bring further claims in Germany. The question in the appeal is whether the English courts have jurisdiction under Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Judgments Regulation) to hear AMTFs claim against MMGR. AMTF argued that the English courts had jurisdiction under article 5.3 of the Judgments Regulation. Article 5.3 provides that jurisdiction will be established in matters relating to tort, delict or quasi delict, in the courts for the place where the harmful event occurred or may occur. It argued that the harm it suffered was the deprivation of the contractual benefit of dispute resolution in England under English law and therefore the harmful event occurred in England. AMTF also argued that a special rule should apply for the purposes of article 5.3 when the tort of inducing breach of contract occurred in the context of an exclusive jurisdiction clause. Foreseeability would be achieved by locating the harm in the jurisdiction of the contractually adopted court. AMTF requested a reference be made to the Court of Justice of the European Union (CJEU) seeking guidance on whether article 5.3 establishes the jurisdiction of the English courts in such circumstances. The Supreme Court unanimously dismisses AMTFs appeal. Lord Hodge gives the judgment, with which the other Justices agree. The aim of the Judgments Regulation is to prevent parallel proceedings between courts of different member states and thereby avoid or limit irreconcilable judgments and non recognition of judgments [11]. Derogations, including article 5.3, from the general rule under article 2 which confers jurisdiction on the courts of the defendants domicile must be restrictively interpreted to achieve this aim [13]. Article 5.3 requires the court to identify where the relevant harm occurred. That is straightforward in this case as, unlike the cases which required the CJEU to develop special rules, it is possible readily to identify one place where the harm occurred [24]. The raising of the German proceedings was the event which gave rise to the damage for the purposes of article 5.3 [25]. The direct harm which AMTF suffered from the alleged tort was the expenditure occasioned by the German proceedings. Thus the place where the harmful event occurred was Germany. Article 5.3 is not concerned with consequential loss such as the loss of focus on the appellants business in London [27]. It would be contrary to CJEU jurisprudence for the court to craft a special rule for the tort of inducing breach of contract where the contractual clause which has been breached is an exclusive jurisdiction clause [28]. It is the occurrence of the direct and immediate harm which is the connecting factor in article 5.3 and which creates the benefits of foreseeability and the sound administration of justice. Those benefits are not themselves connecting factors and a claimant cannot merely invoke those benefits to justify the establishment of a ground of jurisdiction under the Judgments Regulation [29]. A focus on the accessory nature of the tort of inducing breach of contract does not assist [30]. The fact that a claim in tort is connected with a contractual claim has not led the CJEU to elide the grounds of jurisdiction in matters relating to a contract with those in matters relating to tort [31]. Nor does the inconvenience of separating the resolution of the contractual claims against the former clients from the pursuit of the claims against MMGR assist [30]. That inconvenience is the price of achieving the legal certainty and foreseeability which are among the principal aims of the Judgments Regulation [35]. CJEU Reference The circumstances which have caused the CJEU to develop special rules to interpret article 5.3 in order to identify the place where the harmful event occurred do not arise in this case, in which there is no difficulty in locating where the relevant harm has occurred [38]. Recent CJEU case law does not suggest that the court has moved away from the principles and approach underpinning the Judgments Regulation [40]. The matter is acte clair and no reference is mandated [43].
This appeal concerns the use of a closed material procedure (CMP) in the Supreme Court. A CMP involves the production of material which is so confidential and sensitive that it requires the court not only to sit in private, but to sit in a closed hearing. At a closed hearing, the court considers the material and hears submissions about it without one of the parties to the appeal seeing the material or being present, although that partys interests are protected, at least to an extent, by the presence of special advocates who make such submissions as they can on behalf of that party. A CMP also involves the court at least contemplating giving a judgment, part of which will be closed and not be seen by one of the parties or the public. Pursuant to various provisions of the Counter Terrorism Act 2008 (the 2008 Act), the Treasury made the Financial Restrictions (Iran) Order 2009 (the 2009 Order), which Parliament subsequently approved. The 2009 Order effectively shut down the United Kingdom operations of Bank Mellat (the Bank) and its subsidiary. Section 63 of the 2008 Act gives any party affected by such an order the right to apply to the High Court to set it aside. The Bank made such an application. The Government took the view that some of the evidence relied on by the Treasury to justify the 2009 Order was of such sensitivity that it could not be shown to the Bank or its representatives. In the High Court, Mitting J accepted the Governments case that justice required that the evidence in question be put before the court and that it had to be dealt with by a CMP. The hearing before him was partly in open court and partly at a closed hearing. Mitting J handed down an open judgment, in which he dismissed the Banks application, and a shorter closed judgment, which was seen by the Treasury, but not by the Bank, and is not publicly available. In the Court of Appeal, the appeal was heard largely by way of an open hearing. However, there was a short closed hearing at which the closed judgment of Mitting J was considered. The Court of Appeal dismissed the Banks appeal in an open judgment, and while it referred in general terms to the closed material in that open judgment, the Court of Appeal found it unnecessary to give a closed judgment. Before the Supreme Court, the Banks appeal was divided into two issues. The first issue concerned the use of a CMP in the Supreme Court. The second issue concerned the Banks appeal against the Court of Appeals decision to approve Mitting Js upholding of the 2009 Order. This judgment is on the first issue. A second judgment is given on the second issue: see Bank Mellat v Her Majestys Treasury (no. 2) [2013] UKSC 39. The Supreme Court decides (i) by a majority of six to three (Lord Hope, Lord Kerr and Lord Reed dissenting), that it is possible for the Supreme Court to adopt a CMP on an appeal, (ii) by a majority of five to four (Lord Hope, Lord Kerr, Lord Dyson, and Lord Reed dissenting), that it was appropriate to adopt a CMP in this appeal. Lord Neuberger gives the judgment of the majority on both (i) and (ii). Closed material procedures in the Supreme Court Section 40(2) of the Constitutional Reform Act 2005 (the 2005 Act) provides that an appeal lies to the Supreme Court against any judgment of the Court of Appeal. That must extend to a judgment which is wholly or partially closed. It would appear to be implicit in the notion that an appeal can be brought against a closed judgment that the appellate court can consider the closed judgment, and, at least at first sight, that could only be done at a closed hearing. That view is reinforced once one considers the other alternative courses of action, all of which are patently unsatisfactory [38] [42]. The notion that the Supreme Court has power to take such a course is reinforced by section 40(5) of the 2005 Act, which gives the Court the power to determine any question necessary for the purposes of doing justice [37]. Therefore, the Supreme Court can conduct a CMP where it is satisfied that it may be necessary to do so in order to dispose of an appeal [43]. It follows that the Supreme Court has the power to entertain a CMP on appeals against decisions of the courts of England and Wales on applications brought under section 63 of the 2008 Act [47]. Where a CMP has been adopted at first instance and in the Court of Appeal, for the Supreme Court to entertain an appeal without considering the closed material would, at least in many cases, not be doing justice, either in the sense of fairly determining the appeal, or in the sense of being seen fairly to determine the appeal [44]. The minority consider that Parliament has not conferred the power to conduct a CMP on the Supreme Court [78],[134]. For the Supreme Court to conduct a CMP would be contrary to the fundamental principle of the common law right to a fair trial [103],[138]. There is a strong presumption that Parliament does not intend to interfere with the exercise of fundamental rights, and it will be understood as doing so only if it does so expressly or by necessary implication [105],[135]. In the 2008 Act, Parliament introduced a CMP for the High Court, the Court of Session, and the Court of Appeal, but did not introduce such a procedure for the Supreme Court [125]. It is inconceivable that it was intended that the Supreme Court should have the power to carry out a CMP while leaving it bereft of the structure and safeguards which were deemed essential for those courts in which such a hearing is expressly permitted [116]. There are alternatives to CMPs in the Supreme Court, and choices to be made in relation to them, which are appropriately made by Parliament after full consideration [137]. Closed material procedure in this appeal Despite strong suspicions that nothing in Mitting Js closed judgment would have any effect on the outcome of the appeal, the majority decided to grant the Treasurys request to hold a CMP to consider it. This was because they could not be sure, without seeing the closed judgment and listening to submissions on it, whether the closed judgment would have any effect on the outcome of the appeal, and there seemed to be a real risk of justice not being seen to be done to the Treasury if the Supreme Court did not proceed to hold a closed hearing [64]. Having held a closed hearing, it turned out that there had been no point in the Supreme Court seeing the closed judgment, because there was nothing in it which could have affected the Supreme Courts reasoning in relation to the substantive appeal on the 2009 Order [65] [66]. Several conclusions can be drawn from this experience, which should be considered by any appellate court considering whether to adopt a CMP and by any advocate considering inviting an appellate court to take such a course [67] [74],[89] [97]. The minority consider that the Treasury fell far short of what was needed to show that a CMP was necessary in this case [90],[130],[139],[145]. This was because (i) the Court of Appeal did not find it necessary to refer to the closed judgment in any detail [91], (ii) there was no closed ground of appeal in this case [92], and (iii) the Treasury failed to indicate how looking at the closed judgment would assist in the disposal of the appeal [93] [96]. A CMP should be resorted to only where it has been convincingly demonstrated to be genuinely necessary in the interests of justice [128],[140]. If the Court strongly suspects that nothing in the closed material is likely to affect the outcome of the appeal, it should not order a closed hearing [144].
These appeals concern the making of orders for possession of a persons home in favour of a local authority. The issue is whether, in circumstances where the occupier is not a secure tenant, the court that makes the order must consider the proportionality of making it. Most residential occupiers of property owned by local authorities are secure tenants under the Housing Act 1985. This restricts the circumstances in which they can be evicted. Certain types of tenancy, however, are excluded from that regime. The case of London Borough of Hounslow v Powell involved one such type: accommodation provided under the homelessness regime in Part VII of the Housing Act 1996. In order to regain possession of such accommodation, domestic law requires only that the local authority must give notice to quit and obtain a court order. Ms Powell, as a homeless person to whom the local authority owed a duty to provide accommodation, had been given a licence to occupy property under Part VII. Rent arrears of over 3,500 accumulated and the local authority issued a claim for possession of the property. The court hearing the claim made an order requiring Ms Powell to give up possession. The cases of Leeds City Council v Hall and Birmingham City Council v Frisby involved a second type of non secure tenancy: introductory tenancies entered into under Part V of the Housing Act 1996. This type of tenancy is designed to provide an initial period of probation. It remains introductory for a period of one year, after which it becomes secure unless the introductory tenancy has been terminated. If the local authority decides to terminate the introductory tenancy the tenant is entitled to a review of that decision, but once the relevant procedures have been gone through section 127(2) of the 1996 Act provides that the court shall make a possession order. Mr Hall and Mr Frisby had both been granted introductory tenancies, by Leeds and Birmingham City Councils respectively. Allegations were made against them of noise nuisance and anti social behaviour. The local authorities served notices indicating their intention to seek possession, which were upheld on review. In possession proceedings the courts found in favour of the local authorities. The three occupiers appealed to the Court of Appeal. They argued that Article 8 of the European Convention on Human Rights, which provides that Everyone has the right to respect for his home, required that the court hearing the possession proceedings must be able to assess the proportionality of making the orders against them. As the court did not do this, there was a breach of their Article 8 right. The Court of Appeal dismissed the appeals and the occupiers appealed to the Supreme Court. The Supreme Court unanimously holds that a court must have power to consider the proportionality of making possession orders under the homelessness and introductory tenancy schemes. In the cases of Powell and Hall the Court allows the appeals and, having considered the facts in the case of Frisby, it dismisses his appeal. Lord Hope and Lord Phillips give judgments. These cases were a sequel to the case of Manchester City Council v Pinnock [2010] UKSC 45. There the Supreme Court held that Article 8 of the European Convention on Human Rights requires that a court, which is being asked to make a possession order against a person occupying under the demoted tenancy scheme in Part V of the Housing Act 1996, must be able to consider whether it would be proportionate to do so. The present cases raised the question of whether that principle applied to the homelessness and introductory tenancy schemes and, if so, how cases of this kind should be dealt with in practice by the courts. The Court held that the principle from Pinnock applied to the homelessness and introductory tenancy schemes: in all cases where a local authority seeks possession of a property that constitutes a persons home under Article 8, the court must be able to consider the proportionality of making the order. [3] The Court then set out general guidance on meeting this requirement. A court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and has crossed the high threshold of being seriously arguable. The threshold will be crossed in only a small proportion of cases. The question then will be whether making an order for possession is a proportionate means of achieving a legitimate aim. Two legitimate aims should always be taken for granted: the making of the order will (a) vindicate the authoritys ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. The authority is not required to plead in advance any more particularised reasons or to advance a positive case that possession would accord with the requirements of Article 8: such a requirement would collapse the distinction between secure and non secure tenancies. Where the local authority has a particularly strong or unusual reason for seeking possession, however, it is entitled to ask the court to take that reason into account and it should plead the reason if it wishes the court to do so. If a court entertains a proportionality argument, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order sought. [33] [49] On the face of it, section 127(2) of the Housing Act 1996 gives the court no discretion in the case of an introductory tenancy. But this does not prevent the court considering proportionality. Given that lawfulness is an inherent requirement of the procedure for seeking a possession order, it is open to the court to consider whether that procedure has been lawfully followed in respect of the defendants Article 8 rights. [56] Section 89 of the Housing Act 1980, however, does restrict the courts discretion as to the period for which the taking effect of the order can be deferred. The section provides that a court making a possession order cannot postpone the date for possession for more than fourteen days or, in the case of exceptional hardship, six weeks. The Supreme Court held that the mandatory language of the section prevents a court allowing a longer period to comply with the requirements of proportionality. There was, however, no indication that proportionality requires a longer period and therefore no reason to declare section 89 incompatible with Article 8. [64]
Between 1954 and March 1959 Percy McDonald attended Battersea power station in the course of his employment as a lorry driver for a firm known as Building Research Station to collect pulverised fuel ash. Between 1954 and January 1957 he was at the power station approximately twice a month but this fell to about twice every three months from January 1957. While at the power station as a casual visitor Mr McDonald went into areas where asbestos dust was generated by lagging work. The lagging work involved mixing asbestos powder with water in order to make a paste, as well as sawing preformed asbestos sections and stripping off old asbestos lagging. Mr McDonald was diagnosed as suffering from mesothelioma in July 2012 and sadly died at the beginning of February 2014. His widow, Edna McDonald, took his place as respondent in the appeal. The National Grid Electricity Transmission Plc (National Grid) is the successor body to the occupiers of the power station. At trial, Mr McDonald alleged that those occupiers had been in breach of their statutory obligations under regulation 2(a) of the Asbestos Industry Regulations 1931 (the 1931 Regulations) and section 47 of the Factories Act 1937 (the 1937 Act). He also brought claims in negligence against the successors to his former employers and National Grid, but these claims were dropped before the matter came to the Supreme Court. The trial judge dismissed all Mr McDonalds claims. On appeal, the Court of Appeal allowed Mr McDonalds appeal under the 1931 Regulations but dismissed his appeal under the 1937 Act. National Grid appeals to the Supreme Court in the first appeal and Mr McDonalds representative cross appeals in the second appeal. The Supreme Court dismisses National Grids appeal and dismisses the cross appeal. On the appeal, the decision was by a majority of three (Lord Kerr gives the lead judgment and Lady Hale and Lord Clarke give concurring judgments) to two (Lord Reed, with whom Lord Neuberger agreed). On the cross appeal, the decision was by a majority of four to one, with Lady Hale in the minority. On the first appeal, the majority conclude that the 1931 Regulations apply to all factories and workshops processing asbestos, not just those dealing with asbestos in its raw, unprocessed condition. The clear wording of the Regulations indicated this, focusing as they did on the processes in question rather than the nature of the industry. [27, 98, 116] The Secretary of State made these Regulations to counteract the harm that could be done by the manipulation of asbestos rather than focusing on any particular setting where this might happen [96, 117]. The mixing of asbestos during lagging work at the power station fell within the meaning of paragraph (i) of the Preamble to the 1931 Regulations. The Secretary of State was alive to the risk posed by mixing asbestos in settings other than a narrowly defined manufacturing context [49, 124]. Lady Hale points out that this interpretation of mixing was compatible with Cherry Tree Machine Co Ltd v Dawson sub nom Jeromson v Shell Tankers (UK) Ltd [2001] EWCA Civ 101, which the Supreme Court unanimously approves in this case [100]. Lord Kerr holds that a worker in a factory or workshop where processing of asbestos took place was within the scope of the 1931 Regulations, even if not mixing asbestos himself or directly employed by the occupiers of the premises where asbestos was being mixed. The Secretary of State made these Regulations under section 79 of the Factory and Workshop Act 1901 (the 1901 Act), which empowered him to afford protection to workers not involved in the asbestos processing. The risk of injury which these Regulations sought to protect against arose from inhalation of dust or fumes. There was therefore no logical reason to exclude those who were liable to exposure despite not working directly with asbestos [53]. Lady Hale concludes that liability under the 1901 Act is imposed on occupiers (rather than employers) to protect people in the premises they occupied, therefore the question was whether a person was employed in the power station, not whether he was employed by the occupier [103 104]. Lord Clarke deems that Mr McDonald was in a real sense working for the purposes of the power station and agrees with Lord Kerr [127]. Lord Reed, with whom Lord Neuberger agrees, undertakes an extensive review of the background to the 1931 Regulations. They would dismiss the appeal on the grounds that the 1931 Regulations are not engaged as they are intended to apply solely to asbestos processing within the asbestos industry. They hold that the Regulations were penal legislation which should be construed narrowly [158]. Lord Neuberger, Lord Kerr, Lord Clarke and Lord Reed would dismiss the cross appeal. They agree that, while the rest of the statutory criteria are met, there is no sufficient evidence to rebut the Court of Appeals conclusion that Mr McDonald had failed to establish that a substantial quantity of dust had been given off by the mixing process, as required by section 47(1) of the 1937 Act [90, 209]. Lady Hale would allow the cross appeal on the grounds that there is evidence upon which it could be determined that a substantial quantity of dust had been given off [108 109].
This appeal concerns the order in which claims made by an insured exhaust layers of insurance cover under a programme of professional liability insurance. Black and Veatch Corp (BV) is a firm of architects and engineers incorporated in Delaware, USA. BV purchased a programme of professional liability insurance containing various layers. The programme provided for a self insured retention of US$10 million per occurrence and US$20 million in the aggregate, as well as for a deductible of US$100,000 per claim (or US$250,000 in the case of remedial work under a special endorsement). Above the self insured retention and deductible, BV had a primary layer of insurance cover underwritten by the insurer Lexington. This primary layer was for US$5 million per claim excess of the self insured retention and deductible. The Lexington policy required BV to have paid the amount of the deductible and self insured retention prior to the Company indemnifying the Insured under the terms and conditions of this Policy. Above this primary layer was a so called PI tower consisting of three differently sized layers of excess insurance, providing in total a further US$55 million of cover. The excess policies covering these layers were underwritten by the appellant, Teal Assurance, which is BVs captive insurer, and reinsured with independent reinsurers not involved in these proceedings. The policies constituting the PI tower were worldwide in scope. Finally, BV had a US$10 million layer of top and drop insurance. It was again underwritten by Teal and was reinsured with the respondents. Unlike all the underlying policies, it excluded US and Canadian claims. Each excess layer policy, including the top and drop, was expressed to be subject to the same terms and conditions as the underlying Lexington policy and to drop down to continue as the underlying policy as and when the policy or policies underlying it were exhausted. Each also provided by clause 1 that liability to pay under it shall not attach unless and until the Insurers of the Underlying Policy(ies) shall have paid or have admitted liability or have been held liable to pay, the full amount of their indemnity inclusive of costs and expenses. During the relevant insurance year, BV notified 27 claims, four of which have a value in excess of US$1 million. Two of these four are US or Canadian claims; the other two claims are non US/Canadian claims. To maximise the cover available to its associate BV, Teal wishes to ensure that the non US/Canadian claims are met from the top and drop policy, irrespective of when BVs liability was ascertained. It maintains that BV can present or it can pay the US/Canadian claims first, and that, thereafter, when the PI Tower cover is exhausted, it can recover the other non US/Canadian claims under the top and drop policy, and pass them on to the respondent reinsurers. It maintains that the order in which BVs liability for claims or expenses was ascertained is irrelevant as a matter of general law and/or under the specific terms of the primary and excess policies. The Court of Appeal rejected Teal/BVs interpretation. The CA held that the claims should be met in the order in which BVs liabilities and expenses were ascertained. Teal appeals to the Supreme Court. The Supreme Court unanimously dismisses Teals appeal. Lord Mance gives the Courts judgment. The ascertainment by agreement, judgment or award, of the insureds liability to a third party, or the incurring by the insured of expenses, within the scope of a liability policy gives rise to a claim under the policy. This is turn exhausts the policy cover either entirely or pro tanto [17]. The Supreme Court rejects the appellants submission that liability insurance is as a matter of principle only exhausted pro tanto when the insurer either admits liability or meets the claim. The appellants analysis could lead to the insured having causes of action or recoverable claims which together exceed the limit of the cover. This would make no sense as an insurer is only liable up to the limit of the cover [16 18]. An insured can decide not to notify a claim to its insurer, or can withdraw or abandon a claim which it has notified. The insurance will not then be exhausted by that claim, and the next claim will be recoverable in the ordinary course under the insurance. That is different from what BV and Teal propose, namely to continue with claims, whilst adjusting their priority [19]. The requirement under the Lexington policy that BV have paid the amount of the deductible and the self insured retention prior to Lexington indemnifying the insured under the terms and conditions of the policy does not literally require BV to have made monetary disbursements. Instead the term paid is better understood as a measure of liability incurred [20 21]. Otherwise the present liability insurance would not provide the insured with indemnity to meet the threat of insolvency which might result from third party claims [21]. Even if the term paid does require BV to make monetary disbursements prior to being indemnified this does not mean that BV can alter the order in which claims are met by the insurance programme simply by choosing to make an earlier disbursement in respect of a later ascertained liability or expense [22]. Under the terms of the primary policy Lexington, and under the terms of each excess policy Teal, are liable for claims in the order that BV incurred ascertained expenses or third party liability up to the policy limit [23 and 25 26]. Clause 1 of the excess policies cannot alter this. It defines when liability arises, not the claims in respect of which liability arises [25 26]. It provides that liability only attaches under each excess policy in turn as and when the underlying insurers pay or admit or are held liable in respect of BVs ascertained expenses or third party liability [26]. As and when this occurs, each excess policy drops down to continue as if it were the primary policy [27]. This also constitutes the commercially more sensible interpretation [29 31].
Mr Mandalia came to the UK from India in 2008 to study. His visa was due to expire on 9 February 2012 and on 7 February 2012 he applied to the UK Border Agency (the Agency) for a visa extension in order to study accountancy [1]. To secure an extension, Mr Mandalia needed to satisfy certain requirements for student visas under the points based system set out in the Immigration Rules. In particular, he needed to demonstrate, by the provision of certain documents (including bank statements), that he had held at least 5,400 for a consecutive period of 28 days ending no earlier than one month prior to the date of his application (the 28 day requirement) [2 7]. In his application form, Mr Mandalia confirmed that he held at least 5,400 and submitted a bank statement covering the period from 29 December 2011 to 19 January 2012. The statement was numbered 64 and showed an opening credit balance of 11,090.60, a closing credit balance of 12,071.05, and a lowest intervening balance of 11,018.34. However, as the statement covered a consecutive period of only 22 days, it did not satisfy the 28 day requirement [8 9]. Following an acknowledgment of receipt, Mr Mandalia did not hear from the Agency again until a letter dated 21 April 2012 informing him that his extension application had been refused because of the failure to satisfy the 28 day requirement and that a decision had been made for his removal from the UK [10 11]. Mr Mandalias appeal to the First tier Tribunal (Immigration and Asylum Chamber) was dismissed [13 15]. In the course of those proceedings, the Tribunal was not referred to the Agencys instructions to its caseworkers on handling visa applications (the Process Instruction), which provided a degree of flexibility where an applicant had failed to provide information or evidence. On appeal to the Upper Tribunal, Mr Mandalia successfully challenged the decision to remove him. However, owing to some confusion over his grounds of appeal, the Upper Tribunal did not consider his challenge to the First tier Tribunals decision regarding the refusal of his visa extension application by reference to the Process Instruction [16 17]. Although the Court of Appeal accepted that it had jurisdiction to determine the issue, it dismissed Mr Mandalias appeal [18 20]. The question before the Supreme Court was whether the Agency had acted unlawfully in refusing the visa extension application without first inviting Mr Mandalia to supply a further bank statement(s) in accordance with the guidance set out in the Process Instruction [1]. The Supreme Court unanimously allows Mr Mandalias appeal and quashes the refusal of his visa extension application. Lord Wilson (with whom Lady Hale, Lord Clarke, Lord Reed and Lord Hughes agree) delivers the only judgment. The Court of Appeal did not have the benefit of the analysis of the Process Instruction by either of the specialist immigration tribunals. It was unfortunate that no reference had been made to the Process Instruction before the First tier Tribunal. Mr Mandalia could not be expected to have been aware of it, and the Home Office Presenting Officer clearly failed to discharge his duty to draw it to the Tribunals attention as policy of the Agency which was at least arguably relevant to Mr Mandalias appeal [19]. Legal effect of the Process Instruction The exercise of statutory powers can be restricted by government policy. An applicants right to the determination of an application in accordance with government policy is now generally taken to flow from a principle related to the doctrine of legitimate expectation, but freestanding from it. Individuals have a basic public law right to have their cases considered under whatever policy the executive sees fit to adopt, provided that the policy is a lawful exercise of the discretion conferred by statute. The Process Instruction was a lawful exercise of the power conferred on the Secretary of State under s.4(1) of the Immigration Act 1971. It was also accepted that there was ample flexibility to prevent the Process Instruction from being a fetter on the discretion of caseworkers, and that there were no good reasons for not following the Process Instruction in this case. The only issue is as to the correct interpretation of the Process Instruction, which is a question of law for the Court [29 31]. Interpretation of the Process Instruction The Process Instruction provided that caseworkers should show some limited flexibility in relation to applications from which requisite information or evidence had been omitted [21 22]. In particular, the Process Instruction set out several steps which should be followed when there is missing evidence [23]: Step three provided that, where there was evidence missing from an application which might affect its outcome, further information could be requested from the applicant where either it was established that evidence exists, or [there was] sufficient reason to believe the information exists. One of the examples given in the Process Instruction of where this might apply was where there were bank statements missing from a series [24 26]. Step four provided that [w]here there is uncertainty as to whether evidence exists, benefit should be given to the applicant and the evidence should be requested [27]. It was clear that Mr Mandalias bank statements numbered 62 64 formed a series, and it would be obvious to a caseworker looking at a statement numbered 64 that it formed the last in a series, and that the statement(s) covering the preceding six days were missing from that series (R (Gu) v Secretary of State for the Home Department overruled) [32 33, 37]. Caseworkers were not required to split hairs in construing the Process Instruction, as it stressed the need for flexibility. In particular (a) there was no limit on the amount of information that could be requested from an applicant, (b) bank statements missing from a series were only one example of further evidence which should be requested, and (c) where there was uncertainty as to whether evidence existed, the applicant should be given the benefit of the doubt [34]. Conferred with that degree of flexibility, a caseworker should have followed the Process Instruction by requesting Mr Mandalia to provide the statement(s) which covered the first six days of the 28 day period. The Agencys refusal of Mr Mandalias application was therefore unlawful [35 36].
In 2003 Ms Preston was admitted to full connexion in the Methodist Church and thereupon ordained. She was then stationed at the Taunton Circuit as a probationer and, in November 2005, she accepted an invitation to become the Superintendent Minister in the Redruth Circuit. In 2009, she brought a claim against the Church in an employment tribunal for unfair dismissal. Under section 94 of the Employment Rights Act 1996, only an employee has the right not be unfairly dismissed. Section 230 of that Act defines an employee as someone who has entered into or works under a contract of service or apprenticeship. The question at issue on this appeal is whether Ms Preston was employee. The tribunal held she was not. That decision was, however, reversed by the Employment Appeal Tribunal in a decision subsequently upheld by the Court of Appeal. The Supreme Court allows the appeal by a majority of four to one (Lady Hale dissenting), and restores the order of the Employment Tribunal dismissing Ms Prestons claim. Lord Sumption (with whom Lords Hope, Wilson and Carnwath agreed) gives the main judgment of the Court. The modern authorities made clear that the question whether a minister serves under an employment contract can no longer answered by classifying the ministers occupation by type: office or employment, spiritual or secular. Nor can it be answered by any presumption against the contractual character of the service of ministers. The primary considerations are the manner in which a minister is engaged, and the rules governing his service. This depends on the intentions of the parties and, as with all such exercises any such evidence of the parties intentions falls to be examined against the factual background. Part of that background is the fundamentally spiritual purpose of the functions of a minister of religion [10, 33]. The constitution and standing orders of the Methodist Church showed that [20]: (1) A ministers engagement is incapable of being analysed in terms of contractual formation. Neither admission to full connection nor ordination are themselves contracts. (2) A ministers duties thereafter are not consensual. They depend on the unilateral decisions of the Conference. (3) The stipend and manse are due to a minister by virtue only of admission into full connection or ordination, and while a minister remains in full connection and in active life, these benefits continue even in the event of sickness or injury. (4) The disciplinary rights under the Churchs Deed of Union, which determine the way a minister may be removed, are the same for ordinary members as well as ministers. (5) The relationship between the Church and the minister is only terminable by the Conference or its Stationing Committee or by a disciplinary committee, and there is no unilateral right to resign, even on notice. The ministry described in the constitution and standing orders is a vocation, by which candidates submit themselves to the discipline of the Church for life. Absent special arrangements with a minister, a ministers rights and duties arise from their status in the Churchs constitution and not from any contract [20, 34]. With regard to Ms Prestons ministry, the exchange of letters by which she came to be stationed at Redruth might in other contexts be viewed as contractual. However, the standing orders showed that a circuits invitation is no more than a proposal to the Conferences Stationing Committee that they should recommend the candidate to the Conference for stationing in their circuit. While every effort is made to meet the preferences of circuits and ministers, the decision is reserved to the Conference. It may be delegated only to the President of the Conference, not to the circuit, and then only if the appointment has to be made between Conferences. The relevant relationship is between the minister and the Conference, and the Conference can move a minister from one circuit to another even before the end of the period for which the circuit invited the candidate to serve. There is no fresh relationship with each invitation or with each appointment. Ms Preston was serving as a minister at Redruth not pursuant to the five year relationship envisaged in the exchange of letters, but pursuant to the life long relationship into which she had already entered when she was ordained [23]. Lady Hale (dissenting) held that it would be odd if a minister who was not paid his or her stipend or evicted from his or her manse could not rely upon his or her terms of appointment to enforce the payment or to regain possession. The suggestion that a minister would be a beneficiary under a trust upon which the Church holds its property was inconsistent with the stipend being paid centrally and the Church holding property under numerous different trusts. The Conference controls a ministers remuneration and accommodation. There is a distinction between being a minister and having a particular appointment within it. A minister is assigned to a particular post for a defined period with particular duties, a particular manse and a stipend dependent on the level of responsibility. In any other context, such a post would involve a contract of employment. A prior (non enforceable) commitment to go where you are assigned does not negate a mutual contractual relationship when you are assigned and agree to go to a particular place [48].
The appellants are two taxpayers who invested in and became limited partners of various partnerships in implementation of marketed tax avoidance schemes. The schemes were aimed at accruing substantial trading losses through investment in films. The partnerships claimed that they had suffered such losses in several tax years and claimed relief for film expenditure by taking advantage of tax incentives under section 42 of the Finance (No 2) Act 1992. In the early years of trading, a limited partner could use the provisions of sections 380 and 381 of the Income and Corporation Taxes Act 1998 (ICTA) to set off his allocated share of trading losses of a partnership against his general income for that year, or any of the previous three years of assessment. HMRC did not accept the partnerships claims for relief and initiated enquiries into their tax returns under section 12AC(1) of the Taxes Management Act 1970 (TMA). HMRC disallowed the partnerships claims for expenditure funded by non recourse or limited recourse loans to individual partners and also expenditure paid as fees to the promoters of the schemes. The partnerships appealed. Thereafter, on 22 August 2011, the partnership losses were stated at much reduced levels in a partnership settlement agreement. Between September and November 2011, HMRC wrote to the appellants to intimate that their carry back claims in their personal tax returns would be amended in line with the lower figures for the partnership losses stated in the partnership settlement agreement. The appellants raised judicial review proceedings against HMRCs decisions which were set out in the letters. They assert that HMRC was entitled to enquire into their claims only under Schedule 1A to the TMA and that, because the statutory time limit for such an enquiry had expired, the appellants claims to carry back the partnership losses in full had become unchallengeable. The Upper Tribunal rejected the appellants claim. The Court of Appeal dismissed their appeal. The appellants now appeal to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Hodge gives the lead judgment with which the other Justices agree. Section 42 TMA, unless otherwise provided, has effect in relation to a claim for relief. Section 42(2) provides that, where HMRC has given notice to a person requiring him to make and deliver a tax return, a claim for relief must be included in that tax return. In the case of a partnership, certain types of claim for relief (including the type of claim made in this case) shall be made, where section 42(2) applies, in a partnership return [14 15]. Schedule 1B to the TMA applies where (as in this case) relief is sought for a loss incurred in a later year (Year 2) by carrying it back to an earlier year (Year 1). According to paragraph 2(2) of Schedule 1B, section 42(2) is disapplied to such a claim. This disapplication means that a claim may be made under Schedule 1A notwithstanding that HMRC have required the provision of a tax return [17 20]. Enquiries into claims under Schedule 1A are subject to time limits [21]. The appellants asserted that their claims were governed only by Schedule 1A because they were stand alone and the fact that HMRC did not open an enquiry within the requisite time limit in Schedule 1A means that their claims became unchallengeable. This assertion was incorrect because of the provisions of the TMA which specify what a taxpayer must include in his return [22]. The disapplication of section 42(2) to claims falling within Schedule 1B does not mean that the taxpayer is released from the requirement to make the claim (i.e. a claim for relief involving two or more years) in his tax return in Year 2. Section 8(1) TMA imposes this requirement [20]. Section 8 sets out what a person must produce when given a notice to make and deliver a tax return. Under section 8(1)(a), the person is required to provide information needed for the purpose of establishing the amount to which that person is chargeable to income tax. This will include the persons share of partnership income or losses for the period which falls within the year of assessment [23]. A person must therefore include in the return for Year 2 his share of the losses of a partnership, of which he was a partner, which have been stated in a relevant statement relating to Year 2 [24]. If a taxpayer wished to claim to offset all of his share of partnership losses in Year 2 against his other income in Year 2 by invoking section 380(1)(a) of ICTA, he would have to include that claim in his return for Year 2 [27]. If a taxpayer wished to carry back part of the losses incurred in Year 2 to set off against his liability to income tax in respect of Year 1 by invoking section 380(1)(b) of ICTA, he would also have to make the claim in his return for Year 2. The information required as part of a taxpayers return for Year 2 will include both the relief which is claimed in the return and that which he has already received (for instance, any relief already received under Schedule 1A) as that information is necessary for the purpose of establishing the amounts in which the taxpayer is chargeable to income tax for that year of assessment (section 8(1)) [28 29]. HMRC is empowered to enquire into anything contained in the return, or required to be contained in the return, and was therefore empowered (under section 9A TMA) to enquire into the appellants carry back claims contained in their Year 2 tax returns. HMRC were not required to institute an enquiry under Schedule 1A in order to challenge the appellants claims [30]. HMRC by opening an enquiry into the partnership tax returns were deemed to have opened an enquiry into the partners personal tax returns in respect of Year 2 [32]. The partnerships appealed against the conclusions and amendments made by the closure notices following completion of HMRCs enquiries. The partnership settlement agreement made on 22 August 2011 had the same consequences as if the Special Commissioners (now the First Tier Tribunal) had determined the appeal in the manner set out in the agreement [33]. This deemed decision empowered HMRC to amend the appellants personal tax returns (section 50(9) TMA). Section 59B(5)(b) TMA provides for the payment by the taxpayer of sums payable as a result of such an amendment. Therefore, the amendment of the appellants returns (by letters dated September to November 2011) was lawful and the judicial review challenge fails [35 36]. The decision of the Supreme Court in Cotter v Commissioners for Her Majesty's Revenue & Customs [2013] UKSC 69 gives no support to the appellants in this appeal [37].
The subject of the appeal is an occupational pension scheme known as the Imperial Home Dcor Pension Scheme (the Scheme), which is winding up and has a significant deficit. The appeal is concerned with the dividing line, for regulatory purposes, between defined benefit (normally earnings related) schemes and defined contribution (or money purchase) schemes. The general nature of the distinction is that under a defined benefit scheme (the commonest variety of which is a final salary scheme), the amount of the benefit is not calculated by reference to the amount of the members contributions. Under a money purchase scheme, by contrast, the members and the employers contributions, and the investment return on them, are the measure of the members benefits. There is a variety of techniques by which, under a money purchase scheme, the amount of the contributions by or for a member, and the investment return on them, are mathematically transposed into quantifying the pension that is the primary benefit that the member expects to receive. The Secretary of States case is that some of the techniques (and in particular, those applicable to the voluntary investment planning (VIP) and MoneyMatch benefits under the Scheme) take the benefits outside the definition of money purchase benefits in section 181(1) of the Pension Schemes Act 1993. The essential feature of the definition is that the rate (typically so much a year) or amount (typically a lump sum) of the benefits is to be calculated by reference to contributions made in respect of that member. Section 73 of the Pensions Act 1995 provides a statutory order of priority in the winding up of pensions schemes but it does not apply to money purchase schemes, and it applies only in a limited way to hybrid schemes (under which some but not all of the benefits provided are money purchase benefits). The appeal is of great importance to the current and deferred pensioners interested under the Scheme, since if the Secretary of State is right part of the contributions paid by or in respect of members still in service or entitled to deferred pensions at the date of commencement of the winding up of the Scheme will be used, under the statutory order of priority, to satisfy the rights of those already entitled to receipt of pensions at that date. The three issues before the Supreme Court were: (1) Are MoneyMatch benefits money purchase benefits despite the presence of the Guaranteed Interest Fund (GIF)? (2) If not, are they money purchase benefits to the extent that they are attributable to contributions and credits not allocated to the GIF? (3) Are pensions granted by way of internal annuities money purchase benefits? As regards the first issue, a Scheme members total MoneyMatch contributions were, with three possible exceptions, credited to the GIF. As the actual investment returns on contributions might be less than the guaranteed rate of return this could lead to a deficit in the fund. As regards the third issue, in practice internal annuities were used in relation to VIP and MoneyMatch benefits, so that the members interest was converted into a pension using tables of factors periodically supplied by the Scheme actuaries and paid direct from the Scheme. This internal annuitisation necessarily involves some degree of risk of the resources of the fund proving insufficient to provide all the benefits due, if investment returns are disappointing or annuitants exceed their actuarial life expectations (or both). The proceedings were commenced in 2006 by Bridge Trustees Ltd (the Trustee), the independent corporate trustee of the Scheme. Three members of the Scheme were joined as representative defendants. The appellant Secretary of State was not a party to the first instance proceedings, but was granted leave to intervene in an appeal. The appellants case is that it is fundamental to the scheme of the legislation that money purchase schemes are always fully funded, with no risk of the assets being insufficient to meet the liabilities, and for that reason alone they are excepted from the statutory order of priority. Both the deputy judge and the Court of Appeal concluded that neither the GIF mechanism nor the provision of internal annuities (as opposed to the purchase of annuities from a life office) is incompatible with money purchase benefits. The Supreme Court, by a 4 1 majority, dismisses the Secretary of States appeal on the first and third issues, holding that equilibrium of assets and liabilities is not a requirement of the statutory definition of a money purchase scheme (and similarly for money purchase benefits). The second issue does not arise. Lord Walker gives the leading judgment. Lord Mance gives a separate dissenting judgment. On the first issue, the majority, while accepting that KPMG [2006] 1 WLR 97 was correctly decided on its facts, respectfully differ from the key conclusion reached by Jonathan Parker LJ in para 171 of his judgment in KPMG, that calculated by reference to means calculated only by reference to, in the sense that the benefit in question must be the direct product of the contributions. This interpretation involves reading in the word only, which Parliament did not use (whereas it did use solely in the definition of flat rate benefit). The altered phrase is then explained (in the sense that) by reference to the contributions direct product though the statutory definition makes no express reference to investment return. Still less is there anything in the statutory definition requiring meticulous investigation as to the actual investment return earned over the years by every contribution made in respect of a member. The GIF mechanism did not unhitch a members eventual benefits from that members total contributions. It provided for a yield of guaranteed interest at a modest rate fixed by an objective test, together with the prospect of further bonuses at a modest rate, fixed, again, by an objective test under which the trustees had no discretion. [70] [73] On the third issue, the provision of internal annuities (as opposed to the purchase of annuities from a life office) is not incompatible with money purchase benefits. As the deputy judge put it, the distinction would produce insupportable anomalies. As the Court of Appeal put it, annuity tables based on actuarial calculations are used only at the final stage, when the member retires and the amount earned by his or her defined contributions must be converted from a lump sum into an annuity. That is inescapable under either method of provision, in that actuarial tables will be used, on the advice of actuaries, either by the trustees or by the life office (with the latter building in a profit element). [76] Lord Mance is not persuaded that it is necessary or appropriate to read the 1993 Act (or subsequent legislation) as embracing within the concept of money purchase benefit, to some undefined and unclear extent, liabilities not matched with any specific asset held by the scheme. [94]
Mrs Knauer was employed by the Ministry of Justice as an administrative assistant at Her Majestys Prison, Guys Marsh. In the course of her employment, she contracted mesothelioma, from which she died in August 2009. Her husband, Mr Knauer, made a claim for future loss of dependency under the Fatal Accidents Act 1976. The Ministry of Justice admitted liability for Mrs Knauers death in December 2013. In a hearing before Bean J in July 2014, the parties agreed the annual figure for the value of the income and services lost as a result of Mrs Knauers death, the multiplicand. A dispute arose between the parties as to whether the number of years by which that figure is to be multiplied, the multiplier, should be calculated from the date of death or from the date of trial. The trial judge held that he was bound to follow the approach adopted by the House of Lords in the cases of Cookson v Knowles [1979] AC 556 and Graham v Dodds [1983] 1 WLR 808 and to calculate the multiplier from the date of death. The trial judge made it clear that, absent that authority, he would have preferred to calculate the multiplier from the date of trial in line with the approach recommended by the Law Commission in their report Claims for Wrongful Death (1999, Law Com No 263). Bean J granted a certificate under section 12 of the Administration of Justice Act 1969 to enable Mr Knauer to appeal direct to the Supreme Court. The Supreme Court unanimously allows Mr Knauers appeal. Lord Neuberger and Lady Hale give a joint judgment, with which the other Justices agree. Calculating damages for loss of dependency from the date of death, rather than the date of trial, means that the claimant suffers a discount for early receipt of the money when in fact that money will not be received until after trial, a discount that results in under compensation in most cases [7]. A ruling that damages should be assessed from the date of trial would involve departing from the established law as laid down by the House of Lords in Cookson v Knowles [1979] AC 556 and Graham v Dodds [1983] 1 WLR 808. Therefore, the question is whether this is a case in which the Court should apply the 1966 Practice Statement and depart from precedent [19 22]. The Court has no hesitation in concluding that it should do so in the present case [23]. In the current legal climate, the application of the reasoning in the two House of Lords decisions is illogical and its application also results in unfair outcomes. The most important reason for coming to that view is that there has been a material change in the relevant legal landscape [23]. Cookson v Knowles [1979] AC 556 and Graham v Dodds [1983] 1 WLR 808 were decided in a different era, when the calculation of damages for personal injury and death was nothing like as sophisticated as it is now and the use of actuarial evidence or tables was discouraged [12]. Lord Bridge, in Dodds, outlined two concerns which were said to justify the rule. First, adopting the date of death reduced the need to deal with uncertainties around what would have happened to the deceased between the death and the date of trial. Secondly, were the date of trial to be adopted, this would lead to the anomaly that, the longer the trial were delayed, the more a claimant would be able to recover [13 15]. The Ogden Tables were produced in 1984 and endorsed by the House of Lords in the landmark case of Wells v Wells [1999] 1 AC 354. As the Ogden Tables include fatal accident calculations based on the recommendations of the Law Commission, there is now a perfectly sensible way of addressing the first of Lord Bridges concerns [16 17]. As to the second of Lord Bridges concerns, this is less of an issue due to the respect in which the litigation landscape has been transformed since 1984; under the Civil Procedure Rules 1998, the court is now in a position to set timetables and insist that the parties keep to them. In any event, the proper use of the Ogden Tables makes the concern irrelevant [18]. Another reason why the Court should depart from Cookson and Dodds is that the unfair effect of the rule as set out in those cases, has led courts to distinguish them on inadequate grounds, which means that certainty and consistency are being undermined [8 9, 23].
This appeal concerns a child, S, who was born on 1 April 2000. His father is the appellant, and his mother is the first respondent. The second respondent is a solicitor who was appointed as curator ad litem to S in respect of these proceedings. The issue between the parties is whether the appellant should have contact with section Following the end of their relationship, the appellant and first respondent engaged in protracted family proceedings to determine the issue of contact with section The order giving rise to the appeal is set out in an interlocutor of Stirling Sheriff Court dated 22 January 2010. In a previous interlocutor the appellant had been granted parental rights and responsibilities with respect to S, as well as contact. On 22 January 2010, the sheriff recalled the previous interlocutor and withdrew all contact between the appellant and section On appeal to the Court of Session, the Inner House varied the sheriffs interlocutor so as to restore the appellants parental rights and responsibilities, but otherwise refused the appeal. The present appeal is brought against the decision of the Inner House. The Supreme Court dismisses the appeal. The lead judgment is given by Lord Reed, with whom the other justices agree. Lord Hope adds a brief concurring judgment. The Supreme Court notes that, where an appeal is taken to the Court of Session from the judgment of a sheriff proceeding on a proof, the judgment of the Court of Session is appealable to the Supreme Court only on matters of law: Court of Session Act 1988, section 32(5). The appellants submissions were therefore confined to three points. First, it was argued that the sheriff had failed to address his mind to the appropriate legal framework, specifically section 11 of the Children (Scotland) Act 1995 and the case law providing guidance as to its application. Secondly, it was argued that the sheriffs findings could not reasonably warrant the conclusion which he reached. Thirdly, it was argued that the sheriff had failed to act judicially, and that his decision should not therefore be allowed to stand. In that regard, counsel contended that remarks made by the sheriff betrayed a lack of objectivity and impartiality [9]. In relation to the first argument, it is apparent that the sheriff had in mind the correct test. His findings demonstrate that he treated the welfare of the child as the paramount consideration, and considered whether it was in the childs best interests that an order for contact should be made. In those circumstances, the sheriffs failure to make any explicit reference to section 11 of the 1995 Act, or to authorities, is of no consequence [11 12]. The second argument advanced on behalf of the appellant must also be rejected. Given his findings, the sheriff had a reasonable basis for his conclusion that contact would not be in the childs best interests [14]. There is force in counsels submissions that the greater part of the sheriffs findings are concerned with peripheral matters. This however reflects the evidence which was led on the basis of the pleadings, and the sheriffs obligation to make findings in relation to that evidence [15, 39]. In support of his third argument, counsel submitted that the sheriff had made critical remarks about the appellant and the counsel who represented him, which were expressed in inappropriate language. The characters of the parties were however relevant, to some extent at least, to determining whether the order sought would be in the best interests of the child. They were also the subject of a great deal of evidence. It was therefore appropriate for the sheriff to make findings in that regard [16 17]. Although a judge must be careful to strike the appropriate balance between plain speaking and appropriate restraint, it is only exceptionally that the language used by a judge can give rise to an issue of law which might vitiate his decision. In the present case, the Supreme Court cannot detect an error of law in relation to this matter [17]. As to the criticisms of counsel, a judge is entitled to comment in his judgment on the conduct of counsel appearing before him. It could only be in exceptional circumstances that such criticisms could give rise to an issue of law falling within the jurisdiction of the Court. In the present case, the concerns expressed do not raise such an issue. If however, under current practice, counsel may have neither advance warning of such criticisms nor any opportunity to respond, that is a matter which any fair minded sheriff or judge will bear in mind [18 19]. Before parting with the appeal, the Supreme Court considers it appropriate to comment on the duration of the proceedings and the costs incurred. It makes three observations. First, it questions whether traditional pleadings are the best means of identifying the issues in such cases. It notes that in the Report of the Scottish Civil Courts Review the introduction of an abbreviated form of pleadings, and of judicial control of any procedure for their adjustment or for the provision of further specification, was recommended (in Recommendation 116) [21 29, 40]. Secondly, further consideration might be given to the structure of a sheriffs judgment proceeding on a proof. The judgment will most clearly address the central issue if it focuses directly upon the factors which are relevant to the courts exercise of its discretion. Findings on any relevant facts can be made clear within the ambit of a judgment focused primarily upon the central issue; as opposed to the judgment being divided into findings of fact and law, and a note in which the findings are explained, as currently prescribed [30 33, 41 48]. Thirdly, it encourages the courts to make use of their existing case management powers [33 34, 40]. Finally, the Court notes a lack of clarity as to the role of the curator ad litem in the proceedings, and observes that a number of relevant recommendations were made in the Report of the Scottish Civil Courts Review [35 37].
On 5 August 2009, at 2.29am, Ms Michael dialled 999 from her mobile phone. She told the call handler at the Gwent Police call centre that: her ex boyfriend was aggressive; he had just turned up at her house; he had found her with another man; he had bitten her ear really hard; he then drove the other man home with Ms Michaels car but, before doing so, told her that he would return to hit her; that he was going to be back any minute literally; and, according to the recorded transcript of this conversation, that her ex boyfriend had told her Im going to drop him home and (inaudible) [fucking kill you]. The call handler later gave evidence that she had heard hit you rather than kill you. Gwent Police graded the call G1; it required an immediate response. The call handler immediately called South Wales Police, in whose area Ms Michael lived, and summarised their conversation. No mention was made of a threat to kill. South Wales Police graded the call G2; officers should respond within 60 minutes. Ms Michaels home was five or six minutes from the nearest police station. Ms Michael called 999 again at 2.43am. Following a scream from Ms Michael, the line went dead. South Wales Police were informed immediately and officers arrived at Ms Michaels address at 2.51am. They found that she had been brutally attacked, stabbed many times and was dead. Her attacker subsequently pleaded guilty to murder and was sentenced to life imprisonment. The Independent Police Complaints Commission later seriously criticised both police forces for individual and organisational failures. Ms Michaels parents and children (the Appellants) claimed against the Chief Constables of the Gwent Police and the South Wales Police (the Respondents) for damages in, amongst others, negligence and under the Human Rights Act 1998 pursuant to Article 2 (right to life) of the European Convention on Human Rights (ECHR). The Respondents sought a strike out of these claims or summary judgment. At first instance, HHJ Jarman QC refused to strike out or give summary judgment on these claims. On appeal, the Court of Appeal unanimously held that there should be summary judgment for the Respondents on the negligence claim but, with Davis LJ dissenting, the Article 2 ECHR claim should proceed to trial. The Appellants appealed against the Court of Appeal decision on the negligence claim and the Respondents appealed against the Court of Appeal decision on the Article 2 ECHR claim. The Supreme Court dismisses the Appellants appeal by a majority of 5 2 (Lady Hale and Lord Kerr dissenting) and unanimously dismisses the Respondents cross appeal. Lord Toulson (with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Hodge agree) gives the lead judgment. Lady Hale and Lord Kerr give separate judgments both allowing the Appellants appeal (in dissent) and dismissing the Respondents cross appeal. Lord Toulson asks whether, in the context of police protecting victims from potential future crimes, an exception should be made to the ordinary application of common law principles that a defendant will not generally be liable for harm to a claimant caused by the conduct of a third party [116]. Having surveyed the case law [29] [96], including from abroad, Lord Toulson rejects the arguments that the police owe a duty of care in negligence where: (i) they are aware or ought reasonably to be aware of a threat to the life or physical safety of an identifiable person, or member of an identifiable small group (Interveners Liability Principle); or alternatively, (ii) a member of the public gives the police apparently credible evidence that a third party, whose identity and whereabouts are known, presents a specific and imminent threat to his life or physical safety (Lord Binghams Liability Principle). On the first issue, the Interveners Liability Principle is rejected because: (i) it is hard to see why the duty should be confined to physical injury or death or to particular victims and not others [119] [120]; (ii) it is speculative whether a duty would improve the performance of individual officers in domestic violence cases and it is not in the public interest for police priorities to be affected by the risk of being sued [121]; (iii) it would have potentially significant financial implications for the police and/or public [122]; (iv) it is not necessary to develop the law of negligence to mirror or go beyond what is required by Articles 2 and 3 (right to be free from torture or inhuman or degrading treatment or punishment) ECHR [125] ECHR claims have different objectives from civil actions such as negligence [127]. On the second issue, and in addition to those reasons, Lord Binghams Liability Principle is rejected as it would be unsatisfactory to draw dividing lines according to: (i) who reports the threat; (ii) whether the threat is credible and imminent or credible but not imminent; (iii) whether the whereabouts of the threat maker are known or not; and, (iv) whether the threat was aimed at physical injury or not [129]. It should be for Parliament to determine the existence and scope of such a compensatory scheme [130]. On the third issue, it is untenable that what the call handler said to Ms Michael gave rise to an assumption of responsibility. The call handler gave no promise as to how quickly the police would respond and did not advise or instruct her to remain in her house [138]. On the fourth issue (Article 2 ECHR), whether the call handler should have heard Ms Michael say that her ex boyfriend was threatening to kill her is a question of fact to be investigated at trial [139]. Lord Kerr (dissenting) would have allowed the appeal. There should be recognised a sufficient proximity of relationship, such as to create a duty on the police in negligence, where: (i) there is a closeness of association between the claimant and the defendant, such as where information is communicated to the defendant; (ii) the information should convey to the defendant that serious harm is likely to befall the intended victim if urgent action is not taken; (iii) the defendant might reasonably be expected to provide protection in those circumstances; and, (iv) the defendant should be able to provide for the intended victims protection without unnecessary danger to himself [144]. On these facts, there was clearly a sufficient proximity of relationship between the police and Ms Michael [173]. The general rule that there is no duty to protect others from third party harm is not appropriate for members of a force whose duty it is to provide protection [181]. The fundamental principle that legal wrongs should be remedied outweighs the complete absence of evidence to support the claims of dire consequences if liability was found [186]. Lady Hale (dissenting), supporting the analysis of Lord Kerr, would also have allowed the Appellants appeal. The policy reasons said to preclude a duty in a case such as this are diminished by the fact that the police already owe a common law, positive duty in public law to protect members of the public from harm caused by third parties [195], as well as by the existence of the ECHR claims [196].
The Appellant is the chair of the Chagos Refugees Group. He represents residents of the Chagos Archipelago in the British Indian Ocean Territory (BIOT) who were removed and resettled elsewhere by the British Government between 1971 and 1973 and were prevented from returning. Following earlier proceedings, it remains prohibited under the BIOT Constitution and Immigration Orders 2004, for Chagossians to return to BIOT. In these proceedings the Appellant challenged the decision of the Respondent to establish a marine protected area (MPA) in which there would also be no fishing in April 2010 in BIOT. This led to an end of commercial fishing carried on by Chagossians in the waters surrounding BIOT. The Appellants challenge before the Supreme Court had two limbs: (i) the Respondents decision was motivated by the improper ulterior motive of making future resettlement by the Chagossians impracticable, and (ii) the consultation which preceded the decision was flawed by a failure to disclose the arguable existence, on the part of Mauritius, of inshore fishing rights (i.e. within a 12 mile limit from the BIOT shore). A sub issue within limb (i) concerned the admissibility of a document which formed the core of the Appellants case. The document, which was published by The Guardian on 2 December 2010 and The Telegraph on 4 February 2011, purported to be a communication cable sent on 15 May 2009 by the US Embassy in London to departments of the US Federal Government in Washington DC, to elements in the US military command structure and to the US Embassy in Mauritius. The cable is recorded as having been sent to the newspapers by Wikileaks. It claims to be a record of conversations between employees (Mr Roberts and Ms Yeadon) of the Foreign and Commonwealth Office (FCO) and US officials. In the Administrative Court, permission was initially given to cross examine Mr Roberts on the cable. This was to be on the assumption that the cable was what it purported to be and that it would be open to the Appellant, at the end of the hearing, to submit that it was an accurate record of the meeting and that the Court should rely on it evidentially. Various questions were put to Mr Roberts on that basis. Following further submissions from the Respondent concerning the inviolability of the US missions diplomatic archive under the Vienna Convention on Diplomatic Relations 1961 (VCDR) and the Diplomatic Privileges Act 1964, the Administrative Court reversed its position. The Appellant was no longer able to invite the Court to treat the cable as genuine. Further cross examination of Mr Roberts and Ms Yeadon was to proceed on that basis. The Court of Appeal considered that the cable should have been admissible but that its exclusion before the Administrative Court would not or could not have made any difference to that courts conclusions on improper purpose. The Supreme Court unanimously holds that the cable should have been admitted into evidence before the Administrative Court. Lord Mance and Lord Sumption (with whom Lord Neuberger, Lord Kerr, Lord Clarke, and Lord Reed agree) and Lady Hale write concurring judgments on the issue of the admissibility of the cable. A majority of the Court led by Lord Mance with whom Lord Neuberger, Lord Clarke, Lord Sumption and Lord Reed agree, dismisses the appeal on limb (i). The exclusion of the cable by the Administrative Court could have had no material effect on the outcome regarding improper motive. Lord Kerr and Lady Hale dissent on limb (i) of the appeal. The Court unanimously dismisses the appeal on limb (ii). Admissibility of the Cable In his judgment Lord Mance holds that the cable had lost its inviolability, for all purposes, including its use in cross examination or evidence in the present proceedings [21 and 90]. The inviolability of documents which are part of a mission archive under arts 24 and 27(2) of the VCDR makes it impermissible to use such documents (or copies) in a domestic court of the host country, absent extraordinary circumstances such as state security, or express waiver from the mission state [17 and 20]. This principle is subject to two qualifications: (a) the document must constitute and remain part of the mission archive, and (b) its contents must not have become so widely disseminated in the public domain so as to destroy any confidentiality or inviolability that could sensibly attach to it. Regarding (a), in the present case, once the cable reached the State Department or any other addressee, the copy in their hands became a document in the custody of the US Federal Government and not part of the London Embassy archive. As a matter of probability, the cable was extracted from the State Department or one of the foreign locations to which it had been transmitted. On that basis the cable is admissible [20]. Regarding (b), it is in principle possible for a document to lose inviolability where it comes into the public domain, even in circumstances where the document has been wrongly extracted from the mission. The cable has been put into the public domain by the Wikileaks publication and the newspaper articles which followed, in circumstances for which the Appellant has no responsibility. On that ground, the cable would also be admissible [21]. In his judgment, Lord Sumption concludes that a document is part of the archives of a diplomatic mission when it is under the control of the missions personnel, as opposed to other agents of the sending state, whether directly or by virtue of the terms on which the mission transmitted the document to another governmental entity. The documents origin and contents are irrelevant to that issue [68]. The confidentiality and inviolability of such documents depends not on their subject matter or contents but on their status as part of the archives or documents of a diplomatic mission, protected by art 24 of VCDR [69]. It is the obligation of the receiving state to give effect to that status, which includes preventing its infringement by other parties. Thus, a court as an organ of the state would violate art 24 if it received and used material from the archives of a mission which came into the hands of a third party without authority [70 71]. This is subject to a reservation. Documents obtained from the archives of a mission without authority but which have entered the public domain and are freely available have already had their confidentiality destroyed. A court would not be an instrument of the destruction of its confidentiality by using it in that circumstance [74 75]. The Respondents cross appeal on this issue faces two distinct difficulties (a) the cable did not emanate from the US mission in London and (b) the document has entered the public domain [76]. Lady Hale agrees with both Lord Mance and Lord Sumption that the inviolability of the archives, documents and official correspondence of a mission means that they cannot generally be admitted in evidence under arts 24 and 27(2) of VCDR [124]. However, Lady Hale introduces the qualification to the judgments given by Lord Mance and Lord Sumption that documents emanating from a mission must retain their confidentiality and consequent inviolability in some circumstances, the main purpose of the inviolability rule being to allow the mission to communicate in confidence with the sending government [125]; and that control must include restrictions placed by the sending mission on the further transmission and use of the document, such as markings of confidentiality [126 127]. However, in this case, whatever control was initially exercised over the document, it had found its way into many hands and was lost even before it was put into the public domain by Wikileaks. As such, it was no longer inviolable and should have been admitted in evidence: [127 128]. Improper Motive Lord Mance (with whom Lord Neuberger, Lord Clarke, Lord Sumption and Lord Reed agree) concludes that the Court of Appeal was correct to conclude that the Administrative Courts ruling that the cable was inadmissible had no material effect on the outcome of proceedings and was not a ground for allowing the appeal or for concluding that the motivation for creating the MPA was improper [49]. The appropriate test is whether the admission of the cable for use in cross examination and to weigh against other evidence could have made a difference (however, the precise test must depend on the context, including how well placed the court is to judge the effect of any unfairness) [23 24]. This is in substance how the Court of Appeal approached the issue [24]. The Administrative Court undertook a full and careful review of the genesis and development of, and decision to announce, the MPA and no take zone [24]. Neither further cross examination on the cable, nor the cable itself admitted as evidence, would have led to any different outcome before the Administrative Court [42]. The Administrative Court heard cross examination of Mr Roberts and Ms Yeadon on important passages of the cable [37]. Both gave evidence that was generally and substantially consistent with the cable [39]. The cable is at the very lowest ambiguous as to whether references to resettlement were uttered in circumstances indicating that they had a role in motivating the proposal for an MPA. It seems very unlikely that a British civil servant would have disclosed an improper motivation of this nature, rather than outlining the practical consequences of an MPA which is what would have concerned the Americans [40]. Furthermore, even if Mr Roberts and/or Ms Yeadon did have and voice illegitimate motives for the proposal for an MPA, this was not apparent and there is no conceivable basis for thinking that this affected the ultimate decision to create the MPA, which was taken personally by the Respondent after presentation to him on a basis to which no objection is taken [43 49]. Lord Kerr (with whom Lady Hale agrees) dissents on the issue of improper motive. They would have allowed the appeal and remitted the case on limb (i). They consider that the Court of Appeal should have recognised that there was a substantial possibility that the Administrative Court would have taken a different view of the evidence of Mr Roberts and Ms Yeadon if they had admitted the cable and the case had proceeded to its conventional conclusion [121 and 128]. The correct test to be applied by the Court of Appeal is what might have happened if the cable was admitted in evidence not what would have happened [106 112]. The exclusion of the cable restricted the cross examination of Mr Roberts and Ms Yeadon because it was not possible to challenge their testimony where it was inconsistent, on the basis that the document was genuine [91]. Excluding the cable from evidence also meant that it did not rank as independent material and as a significant counterweight to the FCO witnesses testimony [93]. Further, there was an equally substantial possibility that the Court of Appeal would have concluded that the Respondents decision could be impugned because it was taken on a misapprehension of the true facts and circumstances [121]. Fishing Rights Lord Mance (with whom all of the other Justices agree) considers that permission to appeal should be given on this issue, but the appeal dismissed [50 and 63]. The absence of any mention of Mauritian fishing rights, whether by reference to an undertaking given by the UK Government and preferential treatment of Mauritian registered or owned vessels or evidence about such rights, does not undermine the Governments consultation so as to justify setting it aside. The creation of a no fishing MPA would obviously affect inshore fishing and threaten the livelihood of vessels which had previously been licensed to fish in territorial waters. It was open to Mauritius to raise this objection in response to the consultation, but it did not. It would be inappropriate to treat the consultation process as invalid when the party to whom the rights allegedly belonged had full opportunity to assert them. There is also no reason to believe that the ultimate decision would or could have been any different if the consultation had specifically drawn attention to the possible existence of Mauritian fishing rights [62 and 122]. The UN Convention on the Law of the Sea arbitral tribunals finding that such fishing rights do actually exist and their effect in domestic law, as regards the MPA or no take zone, was not relied on or capable of being relied on before the Supreme Court or relevant to the issues arising [50 57, 63].
This appeal concerns qualified security of tenure enjoyed by business tenants, pursuant to Part II of the Landlord and Tenant Act 1954 (the Act). Section 24(1) of the Act provides a procedure to landlords for contesting the grant of an application for a new tenancy. The ground for opposition in issue on this appeal is that under section 30(1)(f) (ground (f)), which provides as follows: that on the termination of the current tenancy the landlord intends to demolish or reconstruct the premises comprised in the holding, or a substantial part of those premises, or to carry out substantial work on the construction of the building or part thereof and that he could not reasonably do so without obtaining possession of the holding. The premises in issue are the ground floor and basement of 80 Jermyn Street in the St Jamess area of London. The appellant, the tenant, is a textile dealership and consultancy. The appellant occupies the ground floor and basement under an underlease for a 25 year term from 2 January 1989 and uses them as a retail art gallery, showroom and archive. The rest of the building is occupied and managed by the respondent, the landlord, as a hotel. Planning permission is required for any material change of use. On 16 March 2015, the tenant served statutory notices requesting the grant of a new tenancy. On 15 May 2015, the landlord served a statutory counternotice opposing the grant of a new tenancy under section 30(1)(f) of the Act. On 8 June 2015, the tenant applied for an order in the Central London County Court. A preliminary issue raised was whether that ground of opposition was made out. The landlords defence put forward successive schemes reflecting the work it intended to carry out. It was accepted by the landlord that the proposed scheme of works was designed with the material intention of undertaking works that would lead to the eviction of the tenant regardless of the works commercial or practical utility and irrespective of the expense. The third scheme, which was in issue on this appeal: (i) omitted external works which would have required planning permission and (ii) added more extensive internal works, many of which were objectively useless. The estimated cost of the works to the landlord was 776,707 (excluding VAT), plus 324,000 in statutory compensation. It was common ground that the proposed works had no practical utility other than eviction. His Honour Judge Saggerson in the County Court considered that the landlord genuinely intended to carry out the works and that ground (f) was made out. On appeal to the High Court, Mr Justice Jay agreed, but gave permission for a leap frog appeal to this Court (by passing the Court of Appeal). The Supreme Court unanimously allows the appeal, deciding that ground (f) cannot be invoked. Lord Sumption gives the leading judgment, with which Lady Hale, Lady Black and Lord Kitchin agree. Lord Briggs gives a concurring judgment, with which Lady Black and Lord Kitchin also agree. Lord Sumption considers ground (f) requires a firm and settled intention to carry out the scheme of works the landlords purpose or motive is immaterial except to test whether the intention required by section 30(1)(f) exists [16]. It is irrelevant whether a landlords intention is reasonable or whether reasonable changes to the scheme could be made so as to allow the tenants continued possession [15]. This appeal does not turn on the landlords motive or purpose, nor on an objective assessment of the reasonableness of the proposed scheme of works, but on what it is that the landlord must intend if ground (f) is to apply [17]. The reason why the landlords approach cannot satisfy ground (f) is not merely the conditionality of its intention to do the proposed works, but the nature of the condition. Ground (f) assumes that the landlords intention to demolish or reconstruct the premises is obstructed by the tenants occupation. This is exemplified by (i) the words could not reasonably do so without obtaining possession of the holding in section 30(1)(f) and (ii) section 31A, which precludes a finding that ground (f) has been satisfied if the works can reasonably be carried out by exercising a right of entry that the tenant is willing to include in the terms of the new tenancy [19]. It follows that the landlords intention to carry out the works cannot be conditional on whether the tenant chooses to assert his claim to a new tenancy. The intention to demolish or reconstruct the premises must exist independently of the tenants statutory claim to a new tenancy [19]. On the facts, the tenants possession of the premises did not obstruct the landlords intended works and the landlord did not intend to carry them out if the tenant persuaded the court that the works could reasonably be carried out while he remained in possession [19]. The entire value of the proposed scheme lies in removing the tenant and not in any benefit to be derived from reconstruction itself [17]. Although not directly relevant in itself, the landlords motive or purpose may be evidence of (i) his genuine intention to carry out the proposed works and (ii) the conditional character of that intention. Similarly, a lack of utility of works may allow an inference as to the conditional character of the landlords intention [21]. Lord Briggs agrees with Lord Sumption that the appeal should be allowed [24]. He clarifies that the Courts decision does not depart from the rule laid down by the House of Lords in Bettys Cafs Ltd v Phillips Furnishing Stores Ltd (No.1) [1959] AC 20 that whether the landlord had the requisite intention to rely on ground (f) falls to be assessed at the time of the hearing, not at any earlier date [25]. Lord Briggs explains that examining evidence as to the landlords purpose or motive is likely to be a valuable means of testing not merely the genuineness (i.e. honesty) but also the conditionality of the landlords intention, so as to ascertain whether it is in accordance with the statutory objective behind section 30(1)(f) [26 31].
These appeals concern the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points based system of immigration control. Tier 4 deals with the grant of leave to enter or remain in the United Kingdom to migrants to the UK from outside the European Economic Area for the purpose of study. The essential requirement of the Tier 4 scheme was that the migrant should have been sponsored by an educational institution holding a sponsors licence. This requirement was laid down in Part 6A of the Immigration Rules, which dealt with the requirements to be satisfied by migrants applying for leave to enter or remain for the purpose of study. The criteria for licensing sponsors and the duties of sponsors once licensed were not prescribed in the Immigration Rules, but only in the Tier 4 Sponsor Guidance issued by the Secretary of State. Section 3(2) of the Immigration Act 1971 (the Act) provides that the Secretary of State shall lay before Parliament rules as to the practice to be followed in regulating the entry and stay in the UK of persons required under the Act to have leave to enter. Part 6A of the Immigration Rules was laid before Parliament under section 3(2) of the Act, but the Sponsor Guidance was not. New College London was a licensed Tier 4 sponsor until December 2009 when its licence was suspended by the Secretary of State on the ground that it was in breach of its duties as sponsor as set out in the Sponsor Guidance. Its licence was subsequently revoked. West London Vocational Training College applied for Highly Trusted Sponsor status in accordance with the Sponsor Guidance and was refused in August 2012. The effect of that refusal under the terms of the then current Sponsor Guidance was that it could not be a licensed Tier 4 sponsor. Both applicants sought to challenge these decisions by way of judicial review. Both failed in the High Court and in the Court of Appeal. Their case was that, so far as the Sponsor Guidance contained mandatory requirements for sponsors, it had to be laid before Parliament, and that in making decisions by reference to it without having done this, the Secretary of State acted unlawfully. The Supreme Court unanimously dismisses the appeals. Lord Sumption (with whom Lords Hope, Clarke and Reed agree) gives the lead judgment. Lord Carnwath adds a concurring judgment agreeing with the result but differing as to some of the reasoning. The criteria for sponsor licensing contained in the Sponsor Guidance were properly to be described as rules, but they were not required to be laid before Parliament under section 3(2) of the Act because that requirement related only to rules regulating the grant of leave to enter or remain in the UK have to be satisfied by the migrant. The Guidance is directed only to the licensing of sponsoring institutions [23, 26]. If the provisions of the Act do not apply, it does not follow that there is no power to have such a system at all [23, 27]. The statutory power of the Secretary of State to administer the system of immigration control must necessarily extend to a range of ancillary and incidental administrative powers not expressly spelt out in the Act, including the vetting of sponsors [28]. The Act does not prescribe the method of immigration control to be adopted. It cannot have been Parliaments intention that the Secretary of State should be limited to those methods of immigration control which required no other administrative measures apart from the grant or refusal of leave to enter or remain in the UK. Since the Secretary of State is entitled to prescribe and lay before Parliament rules for grant of leave to enter or remain in the UK which depend upon the migrant having a suitable sponsor, then she must also be entitled to take administrative measure for identifying sponsors who are and remain suitable, even if these measures do not themselves fall within section 3(2) of the Act [29]. This right is not unlimited: the Secretary of State cannot adopt measures which are inconsistent with the Act or Immigration Rules or adopt measures which are coercive, infringe legal rights or contravene the general constraints on administrative action imposed by public law. However, the Tier 4 sponsor system was not coercive but voluntary. The rules contained in the Sponsor Guidance were, in reality, conditions of participation and sponsors seeking the advantages of licences could not complaint if they were required to adhere to them. [CA29] Lord Carnwath agreed with the result, but held that the sponsor licensing scheme was an adjunct, not of the immigrant control system in general, but of the specific function of providing entry under section 1(4) of the Act. This provides for the admission of persons not having the right of abode for the purpose of study subject to such restrictions as may be provided by the rules. This leads back to section 3(2) of the Act which prescribes the procedure for making the rules [37]. Lord Carnwath differed as to the practical effect of the decision in respect to New College. The decision did not confer a status which they did not have but revoked an existing licensing, and an order setting aside that decision would have left the existing licence in place. No party had sought to challenge the validity of that original licence [44 6].
The Appellants (Mr and Mrs H) are both British citizens. The United States has requested their extradition under the Extradition Act 2003 to face trial in Arizona on charges of conspiracy and unlawful importation into the United States of chemicals used to manufacture methamphetamine, knowing or having reasonable cause to believe that they would be used for that purpose. The Appellants argue that it would be incompatible with their right to respect for their private and family life under Article 8 of the European Convention on Human Rights for them to be extradited. Mrs H is the mother of six children, of whom the eldest is aged 14 years and the youngest is one year old. Mr H is the father of the four younger children. The Appellants submit that the public interest in giving effect to the extradition request is outweighed by the consequences that this would have for the best interests of their children. Mr H is also the father of two other children, of different mothers. Allegations of sexual abuse of the elder daughter by Mr H when they were living in Arkansas led to her being taken into care for a period of time. Mr H moved to Oklahoma where he could not be prosecuted for offences said to have occurred in Arkansas. In 2004, after Mr H had moved to England and formed a relationship with Mrs H (then Miss S), the High Court in Middlesbrough found that Mr H had indeed sexually abused his eldest daughter on a number of occasions in Arkansas and Texas in 1993 and 1994. It made an order against Mr H that he was to have no contact whatsoever with Miss Ss three elder children. This order was ignored entirely by both Mr H and Miss section The extradition proceedings first came before the sheriff on 31 January 2007 and the Appellants were remanded in custody. They were both released on bail after seven months in custody on 31 August 2007. Mr H was returned to custody on 26 April 2011 after failing to attend a court hearing. Mrs H was again remanded in custody on 29 July 2011 when the Appellants appeals were refused. She was released on bail on 12 August 2011, but Mr H remains in custody. While the Appellants were in custody, the children were looked after by Mrs Hs mother, as well as by other friends and family. Initially following her release, Mrs H visited Mr H in prison with all six children. The number of visits then diminished and only the four younger children now regularly go to the prison with her. The two elder children are reluctant to visit. Within a few weeks of her release from custody, Mr and Mrs Hs relationship broke down. The children were placed on the child protection register in July 2009 as a result of allegations of sexual abuse against Mr H by the nine year old daughter of a neighbour. They were removed from the register in December 2011. But this was on the basis that they would be restored to it if Mr H were to be released from custody and to resume contact with the family. On 29 May 2008 the Scottish Ministers ordered the Appellants to be extradited to the United States. The Appellants appealed to the High Court of Justiciary. The hearing of the appeals was delayed on a number of occasions as a result of changes of legal representation by both Appellants. Mrs Hs appeal was also further delayed by pregnancy complications and the birth of her two youngest children, and by the need for investigations into her mental health. Mr Hs appeal was further delayed by an apparent suicide attempt. The Appellants appeals were dismissed on 29 July 2011. The Supreme Court unanimously dismisses the appeal. The leading judgment is given by Lord Hope. Lord Brown, Lord Mance, Lord Judge and Lord Wilson give short concurring judgments. There is no appeal to this court against the determination of the High Court of Justiciary under the 2003 Act. But the Appellants are entitled to exercise their right of appeal under Scotland Act, as the question whether it could be incompatible with article 8 for them to be extradited raises a devolution issue. So the appeal is competent. The offences that have been alleged against the Appellants are very serious, attracting penalties of up to 20 years imprisonment. The allegation is of a sustained and deliberate course of unlawful conduct, during which the Appellants are said to have sold around $133,000 worth of chemicals to about 400 customers in the United States over a two year period [22 23]. Great weight must be given to the public interest in giving effect to a request for extradition. The more serious offence the greater will be that weight. The approach to Article 8 rights in extradition cases need not be radically different from that adopted in deportation or expulsion cases. Where, as here, the family life of children is involved, the best interests of the children are a primary consideration. The question is therefore: Is the Article 8 right outweighed by the strength of any other considerations? [49]. In view of the likely length of their sentences following conviction, and the lack of certainty as to the possibility of a transfer to prison in Scotland, the prospect has to be faced that in the event of conviction the Appellants are likely to be kept apart from their children, and their children perhaps apart from each other, for a very long time [53]. In relation to Mr H, the childrens family relationship with him has effectively been brought to an end by the breakdown of the parents relationship; the two elder childrens refusal to visit him in prison; the 2004 order that he have no contact with Mrs Hs three elder children; and the placing of all six children on the child protection register from July 2009 to December 2011. The prospect of their ever resuming family life together is remote. The argument that it would be contrary to their best interests for him to be extradited is, at best, very weak. Mr Hs case does not come close to meriting his discharge under section 87(2) of the 2003 Act [53 54]. Mrs Hs case is more difficult. The childrens best interests clearly lie in continuing to live with their mother. There is a risk that they will be taken into care after she is extradited and that, if this happens, they will no longer be able to live together. Resuming family life after a prolonged separation is likely to be very difficult. The gravity of the situation is compounded by the fact that the children are, for practical purposes, now fatherless [57]. On the other hand there is no escape from the fact that the crimes alleged, which were persisted in over a substantial period, are very serious. The interests of justice must be given effect to. It is well established that extradition may amount to a justified interference under Article 8(2) if it is in accordance with the law, is pursing the aims of the prevention of crime or disorder and is necessary in a democratic society. If there are grounds for leniency, or for mitigation of sentence on the grounds of her family circumstances, it is for the authorities in the United States, not for this court, to make that assessment [58 59]. Cases where both parents of young children are at risk of being extradited may be regarded as being of an exceptional character, so the court must be satisfied that the interests of justice cannot be served equally well by prosecuting the parents in this country[60 & 65]. However, there are strong practical reasons for concluding that the United States, where most of the witnesses reside and the degree of criminality involved is best assessed, is the proper place for the Appellants to be tried. Taking all of the relevant considerations into account, it would not be appropriate for the Appellants to be tried here. Nor would it be acceptable for Mrs H not to be prosecuted at all for the crimes with which she has been charged. And it would not be sensible to prosecute Mrs H here while sending Mr H to the United States for prosecution. The proper forum in which both prosecutions should be brought is the United States. The best interests of the children, even when weighed together with Mrs Hs own Article 8 right to respect for her family life with them, are not strong enough to overcome the overwhelming public interest in giving effect to the extradition request [70 71].
The Respondent, Mr Franco Vomero, is an Italian national who has lived in the United Kingdom since 1985. In 1998 his marriage to his British wife broke down, and he moved into accommodation with Mr Edward Mitchell. In 2001, he killed Mr Mitchell. In 2002 he was sentenced to eight years imprisonment for manslaughter. In 2006 he completed the custodial part of his sentence. On 23 March 2007 the Home Secretary decided to deport him under regulations 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006. Regulation 21 gives effect to articles 27 and 28 of Directive 2004/38/EC (Directive). In October 2007 the Immigration and Asylum Tribunal (IAT) dismissed Mr Vomeros appeal against the deportation decision. A Senior Immigration Judge ordered that the IATs determination be reconsidered. On reconsideration, the IAT allowed Mr Vomeros appeal. The Court of Appeal dismissed the Secretary of States appeal against the second IAT determination. The Secretary of State appealed to the Supreme Court. Following an initial hearing of his appeal in 2016, the Supreme Court referred a number of questions to the Court of Justice of the European Union (CJEU). The Supreme Courts reasons for making the reference were explained in a judgment given by Lord Mance. After the CJEU delivered its judgment on 17 April 2018, the Supreme Court held a further hearing on 7 February 2019. The Supreme Court unanimously allows the appeal. Lord Reed, with whom the rest of the Court agrees, delivers the judgment. In the reference, the Supreme Court asked whether a right of permanent residence (RPR) is a prerequisite for enhanced protection against expulsion pursuant to article 28(3)(a) of the Directive, as the Court of Appeal had held. Pursuant to that article, an expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by member states, if they have resided in the host member state for the previous ten years. The CJEU held that RPR is a prerequisite for this, because article 28 provides a graduated scheme of protection, under which the degree of protection reflects the individuals degree of integration into the host member state. [26] In the initial judgment of the Supreme Court, Lord Mance concluded that Mr Vomero had not acquired a right of permanent residence in the UK by the date of the decision to deport him, notwithstanding his many years of residence, because his imprisonment between 2001 and 2006 had the result that he had not resided legally in the UK for a continuous period of five years as at 30 April 2006, which is when the Directive was due to be implemented, or any later date before the decision to deport him. [30] It is now argued on Mr Vomeros behalf that it was wrong for the Supreme Court to conclude that he did not have RPR, because the CJEU observed in the course of its judgment that the question referred to it was based on the premise that he does not have RPR, and that it did not have all the information necessary in order to assess whether the premise was correct. In response, the Secretary of States maintains that Lord Mances conclusion was correct but concedes that it will be open to Mr Vomero to argue that he has acquired a right of permanent residence since the date of the decision to deport him. [31] [32] The proposition which the CJEU said that it was unable to assess, namely that Mr Vomero does not have RPR, is not the same as Lord Mances conclusion, namely that Mr Vomero had not acquired RPR by 23 March 2007. [33] The same is true of the Advocate Generals preliminary observations. [34] The leading authority on the significance of imprisonment in relation to the acquisition of RPR is Onuekwere v Home Secretary (Case C 378/12) [2014] 1 WLR 242, where the CJEU held that periods of imprisonment could not be taken into account for the purpose of calculating the length of the claimants residence in the UK, and interrupted the continuity of such residence. [42] The present case differs from Onuekwere in that Mr Vomero had completed more than five years of continuous legal residence in the UK before he was imprisoned in 2001. However, the period of imprisonment for more than two years which he had undergone by 30 April 2006 prevented him from acquiring a right of permanent residence on that date, in the same way as absence from the UK or being out of work for more than two years would have done, following Secretary of State for Work and Pensions v Lassal (Case C 162/09) [2001] 1 CMLR 31 and Secretary of State for Work and Pensions v Dias (Case C 325/09) [2011] 3 CMLR 40. Accordingly, the necessary period of five years continuous legal residence could not begin any earlier than when he completed the custodial part of his sentence, and five years continuous legal residence had not been completed by the time the decision to deport him was made. [45] It will be necessary for the tribunal, when this case is remitted to it, to consider not only whether Mr Vomero has acquired a right of permanent residence since the date of the decision to deport him, but also whether there still exist grounds of public policy or public security within the meaning of article 28(1) of the Directive on the basis of which his expulsion could be justified. [47]
The parties entered into a joint venture agreement on 29 January 1981. Article 8 provided that any dispute arising from the joint venture should be resolved by arbitration before three arbitrators, each of whom was required to be a respected member of the Ismaili community (the Requirement). The Ismaili community comprises Shia Imami Ismaili Muslims and is led by the Aga Khan. The issue arising on this appeal is whether the Requirement, and/or the arbitration agreement as a whole, became void when the Employment Equality (Religion or Belief) Regulations 2003 (the Regulations) came into force on 2 December 2003, as an unlawful arrangement to discriminate on grounds of religion when choosing between persons offering personal services. The joint venture ended in 1988. The division of the joint venture assets was largely determined by a three man panel appointed in accordance with the arbitration agreement, but some matters remained in dispute. On 31 July 2008 Mr Hashwanis solicitors wrote to Mr Jivraj asserting that a balance of over US$4.4m was due to him and giving notice of his intention to appoint Sir Anthony Colman, a retired judge of the Commercial Court, as an arbitrator. Sir Anthony was not a member of the Ismaili community. Mr Jivraj commenced proceedings for a declaration that his appointment was void as a breach of the Requirement. Mr Hashwani sought an order that Sir Anthony be appointed as sole arbitrator. The High Court (David Steel J) held that the appointment of arbitrators fell outside the scope of the Regulations as they were not employed or, if they were, that the Requirement fell within the exception permitted for genuine occupational requirements which it was proportionate to apply. Had he held that the Requirement was void, he would have held that the arbitration agreement as a whole was void. The Court of Appeal allowed Mr Hashwanis appeal in relation to the Regulations, finding that arbitrators were employed and that there had been unlawful religious discrimination. However, they concluded that the agreement should not be enforced with the Requirement severed from it and, accordingly, Sir Anthonys appointment was invalid (the severance issue). Mr Jivraj appealed to the Supreme Court in respect of the finding that the clause was void by reason of the Regulations. Mr Hashwani cross appealed on the severance issue. The Supreme Court unanimously allows the appeal on the ground that an arbitrator is not a person employed under a contract personally to do work within the meaning of the Regulations, which do not therefore apply. The majority (Lord Phillips, Lord Walker, Lord Clarke and Lord Dyson) also find that the Requirement would have fallen within the exception for genuine occupational requirements if the Regulations had applied. Lord Mance preferred not to deal with this issue as it did not arise in the light of the finding that the Regulations did not apply. The judgment of the majority is given by Lord Clarke. The High Court judge had correctly concluded that an arbitrator was not employed within the scope of the Regulations [22]. He or she fell outside the definition of a worker laid down by the case law of the European Court of Justice and was instead an independent provider of services who was not in a relationship of subordination with the person who received the services [34][40]. The dominant purpose of the contract was not the sole test for determining employment, although it might be relevant in arriving at the correct conclusion on the facts of a particular case [39]. An arbitrator was a quasi judicial adjudicator whose duty was not to act in the particular interests of either party [41]. The dominant purpose of the appointment, insofar as it was relevant, was the impartial resolution of the dispute [45]. The question of whether the Requirement was a genuine occupational requirement for the job for the purposes of the exception in regulation 7(3) of the Regulations did not therefore arise. However, whether a particular religion or belief was a legitimate and justified requirement of an occupation was an objective question for the court [59]. Arbitration was more than the application of a given national law to a dispute and a stipulation that an arbitrator be of a particular religion or belief can be relevant to the manner in which disputes are resolved [61]. In this case, the judge had correctly found that the Ismaili community had demonstrated an ethos, based on religion, for dispute resolution contained within that community [68]. The test was not one of necessity. The parties could properly regard arbitration before three Ismailis as likely to involve a procedure in which parties could have confidence and as likely to lead to conclusions of fact in which they could have particular confidence [70]. The severance issue did not therefore arise [72].
Widowed parents allowance (WPA) is a contributory, non means tested, social security benefit payable to men and women with dependent children, who were widowed before March 2017. Under s 39A Social Security Contributions and Benefits (Northern Ireland) Act 1992 (s 39A) the widowed parent can only claim the allowance if he or she was married to or the civil partner of the deceased. The issue in this appeal is whether this requirement unjustifiably discriminates against the survivor and/or the children on the basis of their marital or birth status, contrary to article 14 of the European Convention on Human Rights (ECHR) when read with either the right to respect for family life under article 8, or the protection of property rights in Article 1 of the First Protocol (A1P1). Ms McLaughlins partner, John Adams, died on 28 January 2014. They were not married but had lived together for 23 years. They had four children, aged 19, 17, 13 and 11 years when their father died. He had made sufficient contributions for Ms McLaughlin to be able to claim WPA, had she been married to him. Her claims were refused by the Northern Ireland Department of Communities. She applied for judicial review of that decision on the ground that s 39A was incompatible with the ECHR. The judge in the High Court agreed and made a declaration that s 39A was incompatible with article 14 read with article 8. The Court of Appeal, however, unanimously held that the legislation was not incompatible with article 14, read with either article 8 or A1P1. Ms McLaughlin therefore appealed to the Supreme Court. The Supreme Court by a majority of 4 to 1 (Lord Hodge dissenting) allows the appeal and makes a declaration that s 39A is incompatible with article 14 of the ECHR read with article 8, insofar as it precludes any entitlement to WPA by a surviving unmarried partner of the deceased. Lady Hale, with whom Lord Mance, Lord Kerr and Lady Black agree, gives the substantive judgment of the majority. Lord Mance, with whom Lady Hale, Lord Kerr and Lady Black agree, gives a short concurring judgment. Lord Hodge gives a dissenting judgment. Article 14 secures the rights and freedoms of the ECHR without discrimination. It raises four, somewhat overlapping, questions: Do the circumstances fall within the ambit of one or more of the Convention rights? A breach of a right is not necessary, but the facts must fall within the ambit of one or more of them. It is clear that denial of social security benefits falls within the ambit of A1P1 [16]. WPA also falls within article 8 as it is a positive measure by the state demonstrating its respect for family life [19]. Has there been a difference in treatment between two persons in analogous situations? In a decision in 2000, Shackell v United Kingdom (App 45851/99), the European Court of Human Rights (ECtHR) ruled inadmissible a complaint that a denial of widows benefits to unmarried surviving partners was discriminatory, holding that marriage conferred a special status and was different from cohabitation. In the present case, however the relevant facet of the relationship is not the public commitment but the co raising of children [26]. The purpose of WPA is to benefit the children. It makes no difference to the children whether or not the couple were married to one another, but their treatment is very different [27]. Lord Mance considers that the reasoning of the ECtHR in Shackell failed to address the clear purpose of the widows benefits in that case, namely to cater for the interests of any relevant child, and Shackell should not therefore be followed by the Supreme Court [49]. Is that difference of treatment on the ground of a relevant status? It is well established that being unmarried is a status for the purpose of Article 14, just as being married can be [31]. Is there objective justification for that difference in treatment? This question depends on whether it pursues a legitimate aim and whether there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved [32]. The promotion of marriage and civil partnership is a legitimate aim [36], and WPA is part of a (small) package of social security measures which privileges marriage and civil partnership [37]. However, it was not a proportionate means of achieving this legitimate aim to deny Ms McLaughlin and her children the benefit of Mr Adams contributions because they were not married to each other. WPA exists because of the responsibilities of the deceased and the survivor towards the children, and its purpose is to diminish the financial loss caused to families with children by the death of a parent [39]. This conclusion is reinforced by the international obligations to safeguard childrens rights, to which the UK is party, which inform the interpretation of the ECHR rights; and it is noteworthy that in most other member states survivors pensions are paid directly to the children irrespective of birth status [41]. Remedy The exclusion of all unmarried couples from receipt of WPA will not always amount to unjustified discrimination, but it will inevitably do so in a legally significant number of cases, which is sufficient to require the court to make a declaration of incompatibility under s 4(2) of the Human Rights Act 1998. It will be for the relevant legislature to decide whether or how the law should be changed [43]. Lord Hodge, dissenting, would have held that the purpose of the provision of WPA is to assist the survivor rather than a benefit for bereaved children [58, 73 78]. The circumstances did not justify departing from the consistent line of authority from the ECtHR confirming the difference of status between marriage/civil partnership and cohabitation [64], so the situations were not analogous [79]. Even had they been, the difference in treatment in the provision of a contributory rather than means tested benefit, not directed to need, was not manifestly disproportionate, but objectively justified [85 87].
This appeal concerns the question whether the power to create criminal offences granted to Her Majestys government by section 1 of the United Nations Act 1946 (the 1946 Act) may only lawfully be exercised at or about the time of the relevant resolution by the Security Council of the United Nations which such order is implementing. At the time of the hearing of this appeal, the appellants, Forsyth and Mabey, were awaiting criminal trial on a number of charges, of which one is an offence of making funds available to Iraq contrary to the Articles 3(a) and 11(4) of the Iraq (United Nations Sanctions) Order 2000 (the Order). As a preliminary issue prior to the trial, the appellants sought to establish that the Order creating the offence of making funds available to Iraq was ultra vires section 1 of the 1946 Act. Section 1 grants power to the government to implement resolutions of the Security Council by an executive order without any parliamentary process. The appellants argument was that such a wide executive power could be justified only if the resolutions of the Security Council were implemented urgently and the power, therefore, must be construed as subject to its being exercised within a very short timescale. In essence, the appellants maintained that unless the power to make an order under the 1946 Act is exercised at or about the same time as the relevant Security Council resolution, that power is lost by the passage of time. The Order in question was made 10 years after the relevant resolution. The appellants lost both in the Crown Court and the Court of Appeal. The matter came before this court on 6 December 2010 when, at the outset of the hearing, the appellants were granted permission to appeal; at the conclusion of the hearing the appeal was dismissed for reasons to be given later. The present judgment contains those reasons. Lord Brown delivered the judgment of the court which held that the power conferred on the government by section 1 of the 1946 Act cannot be restricted by confining its exercise within an artificially restricted timeframe. The suggested analogy between the case of A v HM Treasury which was concerned with proper limits of the content of orders made pursuant to section 1 of the 1946 Act and the present appeal seeking to impose limits upon the time within which the power is properly exercisable is false: [9]. Unlike the case of A, where Hansard needed to be examined to confirm the absence of parliamentary intention to permit fundamental human rights to be overridden, there is no good reason to look behind the actual words of the 1946 Act in this case, and indeed a real risk of breaching parliamentary privilege if one does. Had Parliament intended to confine the order making power to urgent use, one would have expected it to be clearly provided for in the 1946 Act: [10] [11]. Instead, the 1946 Act is entirely silent on the question and indeed provides for a power to vary the existing order without placing any time limitations upon this power of variation: [12]. The history of how the Order in the present case came to be made so long after the UN resolution it was implementing confirms that it would be inappropriate to limit the exercise of the power conferred by the 1946 Act within a restricted timeframe by demonstrating that Security Council resolutions are not simply one off measures requiring immediate implementation by member states which then recede into history: [18].
Section 188(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 (the 1992 Act) requires that employers which propose to dismiss as redundant twenty or more employees at one establishment within a period of 90 days or less have an obligation to consult with the representatives of any employees who may be affected. In order to deal with a budget deficit in the year 2009 2010 the University of Stirling proposed to make up to 140 of its permanent staff redundant. In accordance with section 188(1) of the 1992 Act, it undertook collective consultation with the relevant trade unions, including the University and College Union (the Union). However, it did not consider that it needed to include in the collective consultation process employees who were employed under limited term contracts (LTCs) which came to an end during the consultation period. The Union considered that employees on LTCs should have been included on the grounds that they had been dismissed as redundant and brought four test cases in the Employment Tribunal on this basis. The Employment Tribunal held that the employees in three of the four test cases had been dismissed as redundant for the purpose of the consultation requirement and that the fourth employee had not been dismissed at all. The Employment Appeal Tribunal held that all four of the test case employees had been dismissed, but that none of them had been dismissed as redundant. The Inner House agreed with the Employment Appeal Tribunal. The Supreme Court unanimously allows the Unions appeal and remits the case to the Employment Tribunal for consideration of the remaining issues. The Court considered that the issue of whether employees on LTCs, whose contracts come to an end within the relevant period have been dismissed as redundant depends upon two questions. The first question was whether the expiry and non renewal of an LTC amounts to a dismissal for this purpose. It was common ground between the parties that it did [15]. The second question was whether such a dismissal is for a reason not related to the individual concerned, which is the statutory definition of dismissal as redundant pursuant to section 195(1) of the 1992 Act. The Court held that it was. The fact that the employee had entered into an LTC could not mean that the dismissal was a reason related to the individual. In passing the 1992 Act, Parliament did not intend to narrow the scope of the consultation duty from situations where business ceased or was reduced. Further, Parliament had specifically legislated in order to encompass situations where employees are dismissed and offered new contracts on different terms. If the terms and conditions of employees employment contracts were reasons related to the individual concerned then such business rearrangements would not be covered [20]. The context and content of the duty to consult suggest that it is concerned with the needs of the business as a whole. While being on an LTC might be a criterion for selecting employees for dismissal, it is a collective description rather than a reason relating to the individual concerned [21]. Where an LTC comes to an end, the dismissal is the failure to offer the employee a new contract. The fact that it was an LTC, or even that the employee agreed to it, cannot by itself be a reason for the non renewal. The question is whether the reasons for the failure to offer a new contract relate to the individual or to the needs of the business [22]. A reason relates to the individual if it is something to do with him or something he has done. It is to be distinguished from a reason relating to the employer, such as the need to effect change in the business. The coming to an end of an LTC was a reason related to the employers business, not to the individual concerned [23].
Payment protection insurance (PPI) is sold to borrowers to cover the repayment of specific borrowing on the occurrence of an insured event, such as accidental injury. PPI used to be sold to borrowers as part of a package with the loan itself, with a single premium paid upfront and added to the amount borrowed. A high commission would be paid to intermediaries. Mrs Plevin took out a personal loan through LLP Processing (UK) Ltd (LLP). LLP proposed that she borrow 34,000 from Paragon Personal Finance Ltd (Paragon), repayable in instalments over ten years, and that she take out PPI for five years with Norwich Union, Paragons designated insurer. The PPI premium of 5,780 was payable at the outset and added to the amount of the loan. 71.8% of the premium was taken in commission: LLP retained 1,870 and Paragon retained 2,280. The Financial Industry Standards Association guide which LLP gave to Mrs Plevin told her that commission is paid by the lending company, but she was not told the amount of the commission or the identity of the recipients. Sections 140A to 140D of the Consumer Credit Act 1974 apply to Mrs Plevins loan and PPI. They allow a court to reopen a credit agreement which is unfair because of any of the terms of the agreement or a related agreement, the way in which the creditor has exercised or enforced his rights, or any other thing done (or not done) by, or on behalf of, the creditor (s 140A(1)(c)). Mrs Plevin argues that the relationship between herself and Paragon was unfair under s 140A(1)(c) because of (i) the non disclosure of the commissions and (ii) the failure of anyone involved to advise on the suitability of the PPI for her needs. Insofar as LLP committed these defaults, she says it did so on behalf of Paragon. The Insurance Conduct of Business Rules (ICOB Rules) are the statutory rules which regulate the insurance industry. They do not require insurance intermediaries to disclose commissions to their customers. They do require an insurance intermediary which makes a personal recommendation to a customer to buy an insurance contract to take reasonable steps to ensure that the recommendation is suitable for the customers demands and needs. Both the Manchester County Court and the Court of Appeal held that the non disclosure of the commission by LLP and Paragon and the failure by Paragon to assess the suitability of PPI for Mrs Plevin did not make the relationship unfair, because they were bound to do so by Harrison v Black Horse Ltd [2012] Lloyds Rep IR 521, where the presence or absence of a regulatory duty under the ICOB Rules had been treated as conclusive. The Court of Appeal in this case also held that LLPs failure to conduct a needs assessment of Mrs Plevin, in breach of the ICOB Rules, was something done by or on behalf of Paragon which made its relationship with Mrs Plevin unfair. The Supreme Court unanimously dismisses the appeal, but for reasons different from those given by the Court of Appeal. Lord Sumption delivers the sole judgment. He holds that the non disclosure of the amount of commissions and the identity of the recipients did make Mrs Plevins relationship with Paragon unfair under s 140A(1)(c) of the Consumer Credit Act 1974, but the failure to conduct a needs assessment of Mrs Plevin did not. The case is remitted to the Manchester County Court to decide what if any relief under s 140B should be ordered unless that can be agreed. The non disclosure of the commissions The Court of Appeals decision in Harrison v Black Horse Ltd [2012] Lloyds Rep IR 521 was wrong. The ICOB Rules are hard edged, imposing a minimum standard of conduct applicable in a wide range of situations and providing for damages in the event of breach, whereas s 140A of the Consumer Credit Act 1974 introduces a broader test of fairness which is a matter for the courts judgment and which potentially takes into account a much wider range of factors. They are asking different questions [14 17]. Applying s 140A, Lord Sumption concludes that the non disclosure of the commissions did make the relationship between Paragon and Mrs Plevin unfair. At some point, the commissions may become so large that the relationship cannot be regarded as fair if the customer is kept in ignorance. This case lay far beyond the tipping point. Mrs Plevin would have questioned whether the PPI represented value for money if she had been aware of the commission amounts and might not have taken out PPI at all [18]. This unfairness was the responsibility of Paragon, the only party which knew the size of both commissions [19 20]. Failure to assess the suitability of PPI insurance for Mrs Plevins needs Paragons own failure to conduct their own needs assessment of Mrs Plevin did not make its relationship with her unfair. The absence of a regulatory duty under the ICOB Rules was not conclusive, but it was highly relevant: Paragon could not reasonably be expected to perform a duty which the relevant statutory code assigned to someone else, namely LLP [26]. LLPs failure to conduct a needs assessment of Mrs Plevin could not be treated as something done by or on behalf of Paragon, because LLP was not acting as Paragons agent. The ordinary and natural meaning of the words on behalf of imports agency, and that is how the courts have ordinarily construed them. Nothing in this case demands a broader interpretation. The phrase by or on behalf of suggests that the act or omission must be done by the creditor itself, or by someone else whose acts and omissions engage the creditors responsibility as if the creditor had done or not done it itself. Further, the Consumer Credit Act 1974 makes extensive use of the technique of imputing responsibility to the creditor for the acts or omissions of other parties who are not (or not necessarily) the creditors agents, including in s 140A(3), and when it does so, it does so in clear terms. Finally, there would be no coherent criteria for determining what connection other than agency would be required between the creditor and the acts or omissions causing the unfairness [27 34].
The Appellants are all companies which belong to groups which have UK resident parents and also have foreign subsidiaries, both in the European Union and elsewhere. The purpose of the litigation was to determine various questions of law arising from the tax treatment of dividends received by UK resident companies from non resident subsidiaries, as compared with the treatment of dividends received from subsidiaries within wholly UK resident groups of companies. The provisions giving rise to these questions related to the system of advance corporation tax (ACT) and to the taxation of dividend income from non resident sources under section 18 (Schedule D, Case V) of the Income and Corporation Taxes Act 1988 (ICTA). The relevant provisions have since been amended or repealed, but the problems created by their existence in the past have not gone away. The Appellants case is that the differences between their tax treatment and that of wholly UK resident groups of companies breached article 43 (freedom of establishment) and article 56 (free movement of capital) of the EC Treaty, and that these breaches have caused them considerable loss. A previous reference to the Court of Justice of the European Union (CJEU) held that those principles had, at least in some respects, been breached. The issues in this appeal to the Supreme Court relate to the requirements under both EU and domestic law as to the availability of remedies for such breaches of EU law. It is common ground that two types of restitutionary remedies are available in domestic law in this situation: a claim for restitution of tax unlawfully demanded (under the Woolwich principle), and a claim for tax wrongly paid under a mistake (a DMG claim). EU law requires there to be an effective remedy for monies paid in respect of tax that has been unlawfully charged. In the present case, the Woolwich cause of action was now time barred. The limitation period for DMG mistake claims had been extended by section 32(1)(c) of the Limitation Act 1980 (LA). However, in June 2004, s320 of the Finance Act 2004 was enacted, retrospectively excluding the application of s32(1)(c) in relation to claims based on a mistake of law relating to a taxation matter, where the action was brought on or after 8 September 2003. In July 2007, s107 of the Finance Act 2007 came into force. It excluded the application of s32(1)(c) to any DMG claims brought before 8 September 2003. The Court of Appeal held: that the Woolwich restitution remedy was a sufficient remedy as EU law does not require that there must always be a remedy based on mistake; that the Woolwich restitution remedy met the requirements of EU law and was not affected by sections 320 and 107; that the restitution and damages remedies sought by the Appellants in respect of one part of the claim were excluded by virtue of the statutory provisions for recovery of overpaid tax in section 33 of the Taxes Management Act 1970; and that section 32(1)(c) of the Limitation Act 1980 could be given a wider meaning so as to apply to a Woolwich claim. The Appeal raises the following specific issues: (1) Could Parliament lawfully curtail without notice the extended limitation period under section 32(1)(c) of the Limitation Act 1980 for the mistake cause of action (section 320 FA 2004) and cancel claims made using that cause of action for the extended period (section 107 FA 2007)? In particular: (a) Would a Woolwich restitution remedy be a sufficient remedy for the repayment claims brought on the basis of EU law? (b) Whether or not a Woolwich restitution remedy would be a sufficient remedy, does EU law protect the claims which were made in mistake; and, specifically, did the curtailment without notice of the extended limitation period for mistake claims (section 320 FA 2004) and the cancellation of such claims in respect of the extended period (section 107 FA 2007) infringe the EU law principles of effectiveness, legal certainty, legitimate expectations and rule of law? (2) Are the restitution and damages remedies sought by the Appellants in respect of corporation tax paid under section 18 of the ICTA excluded by virtue of the statutory provisions for recovery of overpaid tax in section 33 of the Taxes Management Act 1970? (3) Does section 32(1)(c) of the Limitation Act 1980 apply to a claim for a Woolwich restitution remedy? (4) Does the Woolwich restitution remedy apply only to tax that is demanded by the Revenue, and not to tax such as ACT which is payable on a return; and, if so, what amounts to a demand? The Supreme Court unanimously dismisses the appeal on issues (3) and (4), and allows the appeal on issue (2). On issue (1), a reference is made to the CJEU for a preliminary ruling under article 267 Treaty on the Functioning of the European Union. Leading judgments are given by Lord Hope, Lord Walker, Lord Sumption and Lord Reed, with shorter judgments by Lord Brown, Lord Clarke and Lord Dyson. Issue (1) The central question in the appeal is whether EU law requires only that the member state must make available an adequate remedy which meets the principles of effectiveness and equivalence, or whether it requires every remedy recognised in domestic law to be available so that the taxpayer may obtain the benefit of any special advantages that this may offer on the question of limitation [13, 38]. The majority of the Court (Lord Sumption and Lord Brown dissenting [123 & 142]) holds that the Woolwich remedy on its own was not sufficient to meet the requirements of effectiveness and equivalence; an effective remedy was also required in the DMG mistake cause of action. The principle of equivalence requires that the rules regulating the right to recover taxes levied in breach of EU law must be no less favourable than those governing similar domestic actions. It must follow, if the means of recovering of taxes levied contrary to EU law are to match those in domestic law, that both remedies should be available [21, 212]. The retrospective application of the section 320 FA 2004 limitation period was therefore not compatible with EU law as it infringed the principles of equivalence and effectiveness, and possibly also the principle of legitimate expectations [15, 22, 115, 135 136, 140, 209, 241]. In relation to s107 FA 2007, the Court unanimously holds that, by 2006, the Appellants had acquired a legitimate expectation that their entitlement to have their DMG claims decided by a court would not be removed from them by the introduction without notice of a limitation period that was not fixed in advance. So it was not lawful for Parliament to cancel claims made using the mistake cause of action for the extended period [15, 22, 115, 125, 129, 140, 203, 209, LR 34 35, ]. Since the Court is divided on the question as to whether EU law requires that both remedies should be available to the Appellants so that they can choose the remedy that best suits their case for reimbursement, the matter is not acte clair. A reference to the CJEU is necessary [23]. Issue (2) The question is answered in the negative. Section 33 can be given an interpretation in conformity with EU law by not construing it as impliedly setting itself up as an exclusive provision. The common law claim in unjust enrichment remains available [119, 205]. The appeal on this issue is allowed. Issue (3) The question is answered in the negative. The extension to the limitation period under section 32(1)(c) should not be read widely so as to apply to Woolwich claims. The Court should not seek to develop the law by broadening the interpretation of an action for relief from the consequences of a mistake [62, 186]. The appeal on this issue is dismissed. Issue (4) The question is answered in the negative. The Woolwich restitution remedy is not limited to tax that is demanded by the Revenue, but is available to cover all sums paid to a public authority in response to (and sufficiently causally connected with) an apparent statutory requirement to pay tax which (in fact and in law) is not lawfully due [79, 174]. The appeal on this issue also is dismissed.
This appeal concerns the arrest and detention of four individuals on 29 April 2011, the day of the wedding of the Duke and Duchess of Cambridge. The appellants were part of a larger group of claimants but it was agreed before the Court of Appeal that their cases should be treated as test cases [1, 3]. The appellants were arrested in separate incidents at various places in central London on the grounds that their arrest was reasonably believed to be necessary to prevent an imminent breach of the peace. They were all released without charge once the wedding was over and the police considered the risk of a breach of the peace had been passed. Their period of custody ranged from 2.5 to 5.5 hours [3]. Complaints regarding the lawfulness of the policy for the policing of the royal wedding and the grounds for, and necessity of, the appellants arrest were dismissed by the Administrative Court and these issues were not in dispute on appeal [5]. The appellants also alleged that their detention violated their rights under article 5 of the European Convention on Human Rights which provides that no one shall be deprived of their liberty save in the certain specific circumstances provided for in subsection (1). The police argued that the appellants detention was lawful under article 5(1)(b), which allows for the lawful detention of a person in order to secure the fulfilment of any obligation prescribed by law, or under article 5(1)(c), which allows for the detention of a person for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so. For the purposes of article 5 a breach of the peace counts as an offence, despite not being classified as an offence under English law [8]. The Administrative Court found that the appellants arrest and detention were lawful under article 5(1)(c). It interpreted the phrase effected for the purpose of bringing him before the competent legal authority as applicable only where the purpose of the arrest was to bring the person before the court on reasonable suspicion of having committed an offence and not where the purpose of the arrest was to prevent a commission of an offence [8]. It felt it was therefore unnecessary to determine whether the arrest was lawful under article 5(1)(b) [9]. The Court of Appeal agreed but for different reasons. In light of the decision of the Strasbourg court in Ostendorf v Germany (2015) 34 BHRC 738, which post dated the decision of the Administrative Court, it read the phrase effected for the purpose of bringing him before the competent legal authority as applying to the whole of article 5(1)(c). However, it inferred that the officers who arrested and detained the appellants appreciated the appellants would not be lawfully detained beyond the point at which it was reasonably practicable to take them before the magistrates court. The appellants had therefore been arrested and detained with the intention of bringing them before the competent legal authority within the meaning of article 5.1(c) [11]. The Supreme Court unanimously dismisses the appeal. Lord Toulson, with whom the other Justices agree, gives the lead judgment. The fundamental principle underlying article 5 is the need to protect the individual from arbitrary detention, and an essential part of that protection is timely judicial control. However, article 5 must not be interpreted in such a way as would make it impracticable for the police to perform their duty to maintain public order and protect the lives and property of others [29]. An appreciation of the reality and practical implications is central to the principle of proportionality embedded in both article 5 and in the common law relating to arrest for breach of the peace [30]. The ability of the police to perform their duty would be severely hampered if they could not lawfully arrest and detain a person for a relatively short time (too short for it to be practical to take the person before a court) [31]. The Strasbourg case law on how such a preventative power can be accommodated within article 5 is not clear and settled and the Strasbourg court in Ostendorf was divided. Whilst the Supreme Court must take into account the Strasbourg case law, the final decision is the Courts [32]. The Court prefers the view of the minority of the Strasbourg court in Ostendorf that article 5(1)(c) is capable of applying to a case of detention for preventive purposes followed by early release [33]. It would be perverse if the law was such that in order to be lawfully able to detain a person so as to prevent their imminent commission of an offence, the police must harbour a purpose of continuing the detention, after the risk has passed, until such time as the person could be brought before a court with a view to being bound over to keep the peace in the future. This would lengthen the period of detention and place an unnecessary burden on police resources [36]. Rather, Lord Toulson reads the phrase for the purpose of bringing him before the competent legal authority as implicitly dependent on the cause for detention continuing long enough for the person to be brought before the court. Early release from detention for preventive purpose will not breach article 5 if the lawfulness of the detention can subsequently be challenged and decided by a court [38]. In respect of article 5(1)(b), the Court also prefers the view of the minority in Ostendorf. A general obligation not to commit a criminal offence or, in this case, a breach of the peace, is not an obligation prescribed by law for the purposes of article 5(1)(b) as it is not concrete or specific enough. Such a general obligation does not acquire the necessary degree of specificity by focusing narrowly on the particular facts or by the person concerned being given a reminder of it in specific circumstances. The police may be required to take action to prevent an imminent breach of the peace where there is insufficient time to give a warning [27, 40].
It is central to each of the appellants claims for asylum that they came from a particular region of Somalia where they were at risk of persecution. In each case, in dismissing those claims, the Secretary of State relied on linguistic analysis to the effect that their mode of speaking was linked to Kenya not Somalia. That evidence came in the form of linguistic analysis reports provided by a Swedish commercial organisation called Sprakab. Those decisions were upheld on appeal to the Upper Tribunal (UT) but reversed by the Inner House which made a number of criticisms of the form of the reports and the reliance placed on them by the Asylum and Immigration Tribunal (AIT). In another case raising similar issues, a special three judge panel of the Upper Tribunal gave guidance on the use of such reports in the future. They endorsed the use of the Sprakab reports, subject to certain safeguards. Their approach was in general supported by the Court of Appeal in RB (Somalia) v Secretary of State for the Home Department [2012] EWCA Civ 277 (RB). The issues for consideration by the Supreme Court are: Whether the immigration judges were entitled to attribute any weight to the Sprakab reports; In what circumstances should witnesses providing evidence in such appeals be granted anonymity; Whether there are any particular rules governing expert evidence tendered in the name of an organisation rather than an individual; To what extent can such evidence be accepted in a form not prescribed by the Practice Directions; and To what extent, and with what effect, can the Upper Tribunal give guidance as to the weight to be given to such reports, or the conclusions to be drawn from them. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the lead judgment, with which Lord Neuberger, Lord Clarke, Lord Hughes and Lord Hodge agree. The Practice Directions contain valuable guidance on the general principles applying to expert evidence. The absence of any specific provision in the Practice Directions for evidence in the form of the Sprakab reports was not in itself a bar to their admission. Where the tribunals were faced with a new form of evidence, of potential value in resolving issues of common occurrence, it was entirely appropriate for the UT to select a suitable case with a view to giving general guidance. The Practice Directions did not have to be rigidly applied. The UT were right in RB to address questions relating to Sprakab, its methodology and the presentation of its reports. Subject to appropriate safeguards, they were entitled to find no objection of principle to the admission of Sprakab reports [34 37]. The AIT has the power to make a direction for anonymity but in respect of an individual expert witness its exercise requires special justification. Sprakabs policy of anonymity would not absolve the tribunal of its duty to examine of itself the evidence said to justify a departure from the normal rule. However, there were valid reasons for taking a less strict view in the present context. This was not anonymous evidence in the ordinary sense. The evidence was advanced, and the expertise claimed, on behalf of an organisation, based on the collaborative work of individuals with different skills within it. There was no doubt about the identity of the organisation, its working methods or the qualifications and experience of those involved in preparing its report. The names of the individuals were available to the tribunal, and could have been made known to the parties if it became necessary to do so, for example to pursue a particular line of cross examination. Subject to appropriate safeguards, and to satisfy themselves that in the circumstances of the particular case no prejudice was caused, the Upper Tribunal were entitled to determine that there was no objection in principle to anonymity [42 43]. For the most part, the general guidance given by the UT was helpful and appropriate but on two aspects the guidance appears unduly prescriptive and potentially misleading. The first is as to the weight to be given to such evidence in future cases. It seems to underplay the importance in any case of the tribunal itself examining such a report critically in the light of all the evidence, and of the reasoning supporting its conclusion. The other concern is similar, relating to the guidance on anonymity. It is important to emphasise that it would remain the duty of the tribunal in any future case to determine what justice requires, in the light of the evidence and submissions made to them [44 50]. In the present cases, there are clear reasons for dismissing the appeals on their own facts. The comments in the reports (upon which the Secretary of State originally relied) on knowledge of country and culture were inadequately supported by any demonstrated expertise of the authors. In some respects the evidence went beyond the proper role of a witness. Expert witnesses should never act or appear to act as advocates. The judge in the UT was entitled to regard the guidance in RB as persuasive on the procedural matters covered by it, but it was no substitute for a critical analysis of the particular reports relied on and of the reasoning of the first tribunal [52 60].
The respondent is a Detective Sergeant with the Metropolitan Police Service (MPS) Extradition Unit. The appellant is the publisher of The Times newspaper and of material on The Times website. On 2 June 2006 the appellant published an article which named the respondent as a detective accused of taking money to disclose confidential extradition information to a security firm, ISC Global (UK). ISCs clients included high profile Russians who were the subject of extradition requests. The respondent was a friend of one of the partners of ISC, Mr Hunter. An ISC insider was said to have identified cash payments totalling 20,000, to a recipient codenamed as Noah in the accounts, which could be a reference to the respondent. The appellant was told of and became interested in this possibility from December 2005. The ISC insider later passed a dossier of information to the MPS and to the appellant. The article quoted a spokesman from the MPS who confirmed that the MPS was conducting an investigation into allegations that a serving officer made unauthorised disclosures of information to another individual in exchange for money. The article reported the denial of wrongdoing issued by the respondent. The MPS had not in fact taken any steps to investigate the allegations before being contacted by the appellant in April 2006. At that point warrants were issued and the respondents home was searched. The respondent was temporarily moved from the Extradition Unit, returning in January 2007. In September 2007 the MPS told the parties that the investigation had finished and that it had made no recommendations of criminal or disciplinary proceedings against the respondent. The respondent issued a claim for libel, complaining that the article meant there were strong grounds to suspect he had abused his position as a police officer. The appellant relied, amongst other defences, on the special defence for publications in the public interest known as Reynolds privilege. The applicability of the defence in the circumstances of this case was determined as a preliminary issue. On 16 October 2009 the judge in the High Court found that the publication of the article in the newspaper (and on the website up to the date the investigation was completed) was protected by Reynolds privilege. This finding was overturned by the Court of Appeal on 13 July 2010. The Supreme Court unanimously allows the appeal and holds that the article was protected by Reynolds privilege. The main judgments are given by Lord Phillips and Lord Mance. Reynolds privilege protects the publication of defamatory matter to the world at large where (i) it is in the public interest that the information should be published and (ii) the publisher has acted responsibly in publishing the information [2]. The present appeal raised three issues of principle in relation to the privilege: how to approach the question of the meaning of the article, whether it was in the public interest to refer to the details of allegations made against the respondent and what verification was required to discharge the requirements of responsible journalism [22 25]. The Supreme Court addressed the issues as follows: Meaning The seriousness of the allegation being made is an important factor in the assessment of where the balance is to be struck between the desirability that the public should receive information and the potential harm caused if the individual is defamed [48]. It is commonplace for Reynolds privilege to be determined as a preliminary issue but this makes it necessary to determine the meaning of the article, which will also be relevant to verification. The sensible way of achieving this is for the parties to agree to trial by judge alone, who can then resolve any dispute as to meaning at the same time [49]. In this case the parties agreed that the meanings of the article for which they respectively contended that there were strong grounds to investigate the respondent or that there were grounds justifying a police investigation were so close that it was not necessary to choose between them for the purposes of the preliminary issue. However, where a publication is capable of bearing a range of meanings, Lord Phillips and Lord Brown thought that a journalist must have regard to the full range when deciding whether to publish and when attempting to verify [51][111]. Public interest The respondent maintained that while the general subject matter of the article police corruption was of public interest, as a matter of principle the publication of the facts giving rise to the allegations being investigated was not [53]. This may be so, but each case will turn on its own facts and on this occasion the publication of such details was justified. The story was of high public importance and the allegations against the respondent were the whole story [68] [119]. They were published with the legitimate aim of ensuring the allegations were properly investigated by the police in circumstances where the journalist had good reason to doubt that they were being [69]. Naming the respondent was also justified as he would be identified in any event by his fellow officers and suspicion should not fall on other members of the Extradition Unit [75] [169]. Lord Mance held that journalistic judgment and editorial freedom were entitled to weight when considering how much detail should be published [170] but any journalist must consider carefully the public interest in doing so when allegations have not been investigated or their accuracy determined [177]. Lord Dyson considered that it was generally likely to be in the public interest to publish the details of allegations of police corruption, provided the test of responsible journalism was met [195]. Verification This was not a case of reportage, where the public interest lies in the fact that an allegation has been made. Here the public interest lay in the content of the allegations and the fact that they might be true. Privilege for this would only attach if the journalist honestly and reasonably believed the published facts to be true [78]. The hard and fast principles relating to the defence of justification do not apply when considering verification. The existence of grounds for suspicion can be based on information from reliable sources or may reasonably be inferred from the fact of a police investigation [80]. In this case the judge found that the supporting facts were true and verified as such [87] [167]. It was reasonable for the journalists to conclude from the police investigation and application for a search warrant that the accusation against the respondent might be well founded. There was a strong circumstantial case against him [98]. The Supreme Court declined to address the question of how, as a matter of principle, the Court of Appeal should approach a challenge to a decision of a trial judge on a defence of Reynolds privilege, in the absence of oral argument on this aspect [100 106]. The outstanding appeal, in relation to the continued publication of the article on the website after the completion of the investigation of the respondent, was adjourned for a further hearing [107].
This appeal considers the impact of fraudulent non disclosure on a financial settlement agreed between a husband and wife on divorce, especially one embodied in a court order. The parties were married in 1993 and separated in 2010. They have three children, one of whom has severe autism and will require care from Mrs Sharland throughout his life. Mr Sharland is an entrepreneur who has a substantial shareholding in a software business, AppSense Holdings Ltd, which he developed. In the financial proceedings between the parties the value and manner of distribution of this shareholding was the principal matter in dispute. Both parties instructed valuers, who produced valuations on the basis that there were no plans for an Initial Public Offering (IPO) of the company. In the course of the trial in the High Court in July 2012, after Mr Sharland gave evidence confirming that there was no IPO on the cards today, the parties reached an settlement by which Mrs Sharland agreed to receive 30% of the net proceeds of sale of the AppSense shares whenever that took place, together with other assets. The judge approved the agreement and a draft consent order was drawn up. Before it was sealed, however, Mrs Sharland became aware that AppSense was being actively prepared for an IPO which was expected to value the company at a figure far in excess of the valuations prepared for the hearing. Mrs Sharland immediately invited the judge not to seal the consent order and applied for the hearing to be resumed. At the hearing of her application in April 2013 the judge found that Mr Sharlands earlier evidence had been dishonest and, had he disclosed the IPO plans, the court would have adjourned the financial proceedings to establish whether it was going ahead. However, by the time of the hearing, the IPO had not taken place and an IPO was not now in prospect. The judge declined to set aside the consent order on the ground that he would not have made a substantially different order in the financial proceedings, applying the decision of the House of Lords in Livesey (formerly Jenkins) v Jenkins [1985] AC 424. The Court of Appeal upheld the judges order (Briggs LJ dissenting) and Mrs Sharland appealed to the Supreme Court. The Supreme Court unanimously allows Mrs Sharlands appeal. The consent order will not be sealed and Mrs Sharlands application for financial relief will return to the Family Division of the High Court for further directions. Lady Hale gives the only judgment. It is in the interests of all members of a family that matrimonial claims should be settled by agreement rather than adversarial battles in court [17]. Such an agreement cannot oust the power of the court to make orders for financial arrangements [18] and does not give rise to a contract enforceable in law [19], but the court will make an order in the terms agreed unless it has reason to think there are circumstances into which it ought to inquire [20]. Allied to this responsibility of the court is the parties duty to make full and frank disclosure of all relevant information to one another and to the court [21]. Family proceedings differ from ordinary civil proceedings in two respects: a consent order derives its authority from the court and not from the consent of the parties and the duty of full and frank disclosure always arises [27]. The consent of the parties must be valid. If there is a reason which vitiates a partys consent there may also be good reason for the court to set aside a consent order. Whether the court is bound to do so is the question arising on the appeal [29]. It is not necessary to decide in this case whether the greater flexibility which the court now has in cases of innocent or negligent misrepresentation in contract law, restricting a victims right to rescind the agreement, should also apply to such misrepresentations or non disclosure in consent orders in civil or family cases. The present case is one of fraud. It would be extraordinary if the victim of a fraudulent misrepresentation in a matrimonial case was in a worse position than the victim of a fraudulent misrepresentation in an ordinary contract case, including a contract to settle a civil claim. Briggs LJ in the Court of Appeal was correct to apply the general principle that fraud unravels all and should lead to the setting aside of a consent order procured by fraud [32]. The only exception is where the court is satisfied that, at the time when it made the consent order, the fraud would not have influenced a reasonable person to agree to it, nor, had it know then what it knows now, would the court have made a significantly different order, whether or not the parties had agreed to it. The burden of establishing this must lie with the perpetrator of the fraud [33]. On the facts of this case it is clear that the judge would not have made the order he did, when he did, in the absence of Mr Sharlands fraud, and the consent order should have been set aside. The judge had misinterpreted Livesey, which had drawn a distinction between triviality and materiality at the date of the order and not at some later date [34]. He had also been wrong to deprive Mrs Sharland of a full and fair hearing of her claims by re making his decision at the hearing of the application on the basis of the evidence then before him [35]. The consent order should not be sealed and the matter should return to the Family Division for further directions [36]. The final part of the judgment discusses the procedure to be followed by parties seeking to challenge the final order of a court in family proceedings. The court retains jurisdiction over a marriage even after it has been dissolved and s 31F(6) Matrimonial and Family Proceedings Act 1984 gives the family court power to vary, suspend, rescind or revive any order by it. It is open to the parties either to make a fresh application or to appeal against the consent order. Lady Hale endorses the observations of Lord Wilson in the judgment in Gohil v Gohil [2015] UKSC 61 on the question of how such applications should be made, while emphasising that the renewed financial remedy proceedings need not start from scratch and the court may be able to isolate the issues to which the misrepresentation or non disclosure relates [37 43].
Section 133 of the Criminal Justice Act 1988 (s 133) provides that the Secretary of State for Justice shall pay compensation when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. It was enacted to give effect to Article 14(6) of the International Covenant on Civil and Political Rights 1966 (Article 14(6)), which the United Kingdom ratified in May 1976. Article 14(6) also refers to a miscarriage of justice. The principal issue in these appeals was the meaning of this phrase in this context; in particular whether compensation should only be given if someone was subsequently shown conclusively to have been innocent of the offence. The three appellants each claimed compensation following the quashing of their convictions for murder by the Court of Appeal. In each case the claim was refused on the ground that the appellant had not shown that a miscarriage of justice had occurred. In Mr Adams case, it was also refused on the ground that he had not shown that his conviction had been reversed by reason of a new or newly discovered fact. Mr Adams was convicted on 18 May 1993 of the murder of Jack Royal. His conviction was referred to the Court of Appeal in 2007 on the ground that incompetent defence representation had deprived him of a fair trial. His representatives had failed to consider unused material provided by the police which would have assisted in undermining the evidence given by the sole prosecution witness. The Court of Appeal found that if this had been done the jury might not have been satisfied of Mr Adams guilt, although he would not inevitably have been acquitted. Mr McCartney was convicted of the murders of Geoffrey Agate and DC Liam McNulty, and Mr MacDermott that of DC McNulty, on 12 January 1979. The sole evidence was their admissions during interviews with the police. They alleged that these had been made after ill treatment and called other witnesses who claimed to have suffered similar treatment from the same group of police officers. The judge rejected their evidence. He had been told that a prosecution brought against one of these witnesses had not been proceeded with. But he was not told that this was because senior officers in the Department of the Director of Public Prosecutions considered that he had been assaulted by police officers to obtain his confession and that a conviction in another case, based on a confession obtained in similar circumstances and involving one of the same officers, had been quashed. The Court of Appeal in Northern Ireland quashed the convictions of Mr McCartney and Mr MacDermott on 15 February 2007 on the ground that this new evidence left it with a distinct feeling of unease about the safety of their convictions. The Supreme Court unanimously dismisses the appeal of Mr Adams and by a majority (Lord Rodger, Lord Walker, Lord Brown and Lord Judge dissenting) allows the appeals of Mr MacDermott and Mr McCartney. The majority hold that a miscarriage of justice has occurred for the purposes of s 133 when a new or newly discovered fact shows conclusively that the evidence against a defendant has been so undermined that no conviction could possibly be based upon it. Miscarriage of justice Miscarriage of justice was a phrase capable of a number of different meanings. It was useful to consider four categories of cases in which the Court of Appeal would quash a conviction on the basis of fresh evidence: Where it showed a defendant was innocent of the crime (category 1) Where it was such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant (category 2) Where it rendered the conviction unsafe in that, had it been available at the trial, a reasonable jury might or might not have convicted the defendant (category 3) Where something had gone seriously wrong in the investigation of the offence or the conduct of the trial resulting in the conviction of someone who should not have been convicted (category 4) [9] The primary object of s133, and of Article 14(6), was clearly to compensate a person who had been convicted and punished for a crime which he did not commit. A subsidiary objective was not to compensate someone who had in fact committed the crime [37]. Category 4 fell outside this purpose as it dealt with abuses of process so shocking that the conviction should be quashed even if it did not put in doubt the guilt of the convicted person [38]. Category 3 was also outside s 133 because the miscarriage of justice had to be shown beyond reasonable doubt. Category 3 would include a significant number who had in fact committed the offences, as an inevitable consequence of a system which required guilt to be proved beyond reasonable doubt [42]. Category 1 cases were clearly covered by s 133. However, the majority (Lord Phillips, Lord Hope, Lady Hale, Lord Kerr and Lord Clarke) held that the ambit of s 133 was not restricted to category 1 as it would deprive of compensation some defendants who were in fact innocent but could not establish this beyond reasonable doubt. A wider scope was plainly intended at the time of the drafting of Article 14(6). Even though it would not guarantee that all those entitled to compensation were in fact innocent, the test for miscarriage of justice in s 133 (in more robust terms than category 2) was as follows: A new or newly discovered fact will show conclusively that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it [55]. A miscarriage of justice in a case of that kind would be as great as it would have been if he had in fact been innocent, because in neither case would he have been prosecuted at all [102]. Four justices dissented on this issue. Lord Judge considered that the words beyond reasonable doubt in s 133 meant that the miscarriage of justice was the conviction and incarceration of the truly innocent [248]. Lord Brown considered that there was no logical or principled dividing line between categories 2 and 3 [274] and the arguments in favour of an interpretation limited to category 1 were compelling [277]. Lord Rodger agreed with Lord Brown, and Lord Walker agreed with Lord Brown and Lord Judge. Application of s 133 to cases involving a retrial An amendment to s 133 (subsection 5A) which referred to a retrial changed the timetable for a claim for compensation. It did not mean that compensation was payable in every case in which a retrial had been ordered and the defendant then acquitted, as was argued by counsel for the intervener Barry George. The same test was to be applied. The amendment allowed for the possibility that something might emerge in the retrial which would require compensation [104]. New or newly discovered fact Lord Phillips (with whom Lady Hale, Lord Kerr and Lord Clarke agreed) held that the phrase new or newly discovered fact should be interpreted generously in accordance with the effect given to Article 14(6) by legislation in Ireland as including facts the significance of which was not appreciated by the convicted person or his advisers during the trial [60]. Lord Hope disagreed, considering that material disclosed to the defence by the time of the trial could not be said to be new and the focus on the state of mind of the convicted person went too far [107]. Lord Judge (with whom Lords Brown, Rodger and Walker agreed) preferred an approach which coincided with the test for admission of fresh evidence before the Court of Appeal, which required a reasonable explanation for the failure to adduce the evidence at the trial. This had been satisfied by Mr Adams in his case [281]. Disposal of the appeals Mr Adams appeal was unanimously dismissed on the ground that his was a category 3 case and did not fall within s 133. The majority allowed the appeals of Mr McCartney and Mr MacDermott as it had been shown conclusively that the evidence against them had been so undermined that no conviction could possibly be based upon it. The minority would have remitted their cases to the Secretary of State for further consideration in the light of the judgment.
This appeal relates to immigration law and the British Nationality Act 1981 (the Act). Pursuant to section 40 (4) of the Act, the Secretary of State for the Home Department (the Secretary of State) cannot deprive a person of his British citizenship on the ground that it is conducive to public good if she is satisfied that it would make that person stateless. Mr Al Jedda came to the UK from Iraq in 1992 and was granted British nationality on 15 June 2000. As a result, because of Iraqi law, he automatically lost his Iraqi nationality. In September 2004 Mr Al Jedda travelled from the UK to Iraq. He was arrested in Iraq the following month by US forces who transferred him into the custody of British forces. Mr Al Jedda was held, without charge, for more than three years. Soon after his release he travelled to Turkey where he currently lives. In judicial review proceedings Mr Al Jedda contended that his internment violated his rights under article 5(1) of the European Convention on Human Rights (right to liberty and security). This was rejected by the UK courts, including the House of Lords. However, the Grand Chamber of the European Court of Human Rights held that his internment had violated his rights under article 5(1). In separate proceedings, initiated in 2006, Mr Al Jedda brought a claim for habeas corpus in which he asserted that his internment had become unconstitutional under Iraqi law. After his release, he re pleaded the claim as one for damages. The claim was dismissed and the Court of Appeal upheld the dismissal. By order dated 14 December 2007, shortly prior to his release from internment, the Secretary of State deprived Mr Al Jedda of British citizenship pursuant to her powers under the Act. This order was preceded by a letter to Mr Al Jedda, dated 12 December 2007, by which the Secretary of State informed him of why she was satisfied that depriving him of British Citizenship would be conducive to the public good. On 11 January 2008 Mr Al Jedda appealed to the Special Immigration Appeals Commission (the Commission), one of his grounds of appeal being that the Secretary of States order would render him stateless and was therefore void. The Commission concluded that Mr Al Jedda had, through an Iraqi law in force between 2004 and 2006, regained Iraqi nationality and would therefore not be rendered stateless by the Secretary of States order. Mr Al Jedda appealed and on 12 March 2010 the Court of Appeal, allowing the appeal, directed the Commission to rehear the issue. On 26 November 2012, the Commission again concluded that Mr Al Jedda had regained Iraqi nationality prior to the date of the Secretary of States order and was therefore not stateless. In the decision under current appeal the Court of Appeal found this second decision to be erroneous in law. The effect of this was that the Court of Appeal had to consider the Secretary of States alternative contention, namely that if, on 14 December 2007, Mr Al Jedda had not been an Iraqi national, it had been open to him to regain it by application and that it had been his failure to make the application, rather than her order, which had made him stateless. The Court of Appeal, rejecting the Secretary of States alternative contention, held that the effect of her order would be to make Mr Al Jedda stateless. The Secretary of State appeals against this decision. The Supreme Court unanimously dismisses the appeal by the Secretary of State. The Court rejects the Secretary of States alternative argument. From a plain reading of the statute and surrounding guidance, it is clear that the question is simply whether the person holds another nationality at the date of the order depriving him of his British citizenship. On the evidence before the Court of Appeal, the validity of the premise upon which the Secretary of State bases her argument, namely that Mr Al Jedda could have applied to the Iraqi authorities for restoration of his nationality, that he had a right to its restoration and that restoration would have been effective immediately, is not clearly established [25]. Even adopting the suggested premise, the Section 40(4) restriction on the Secretary of States power to deprive a person of his British citizenship does not permit her to conduct an analysis of the relative strength of contributing factors. The question is simply whether the person holds another nationality at the date of the order depriving him of his British citizenship [32]. The ability of the Secretary of State to assert that the person in question could quickly and easily re acquire another nationality would create confusion in the application of what should be a straightforward exercise [32]. In section 12 of the Act, a person can renounce British citizenship as long as they have another nationality or, notably, will acquire another nationality. Parliament could have made an analogous provision in section 40(4), preventing a person from being made stateless, for example, in circumstances in which he has no right immediately to acquire the nationality of another state but it did not do so [33]. The Home Office has incorporated, verbatim, parts of 2012 United Nations guidelines on statelessness into its own guidance, dated 1 May 2013, entitled Applications for leave to remain as a stateless person. This stipulates that . An individuals nationality is to be assessed as at the time of determination of eligibility It is neither a historic nor a predictive exercise. The question to be answered is whether, at the point of making [a] determination, an individual is a national of the country or countries in question. Therefore, if an individual is partway through a process for acquiring nationality but those procedures have not been completed, he or she cannot be considered as a nationalSimilarly, where requirements or procedures for loss, deprivation or renunciation of nationality have not been completed, the individual is still a national for the purposes of the stateless person definition. The Secretary of States own guidance helpfully addresses the very issue in question, but unhelpfully to her appeal [34]. An outstanding issue, which is not for this court to resolve [29], relates to the Secretary of States assertion, following the Supreme Court hearing, that she now understands that Mr Al Jedda has a genuine Iraqi passport and a valid grant of Iraqi nationality [27]. Mr Al Jedda responds that the passport to which the Secretary of State refers is a fake one, used by him at the time to travel from Iraq to Turkey in 2008 [28 (a)]. It may be that the Secretary of State will make a further deprivation order on the basis that, given the Iraqi passport, Mr Al Jedda would not be rendered stateless by it. Mr Al Jedda would no doubt dispute this conclusion and may also contend that the Secretary of State is prevented from alleging the validity of the passport at this late stage. The Court does not comment on these possibilities [29].
This appeal concerns the breadth of the ethical investments that the authorities which administer the local government pension scheme (the scheme) are permitted to make. An ethical investment can be defined as one made not, or not entirely, for commercial reasons but in the belief that social, environmental, political or moral considerations make it, or also make it, appropriate. The scheme is an occupational pension scheme under which authoritiesin most cases local authoritiesin England and Wales administer funds separate from their other resources. An authority makes contributions into its fund for its employees, who also make contributions themselves. The scheme provides defined pension benefits for past and present employees. The Public Service Pensions Act 2013 (the 2013 Act) empowers the respondent Secretary of State to make regulations providing for the issue of guidance to authorities on the schemes administration and management (section 3 and para 12 of Schedule 3). The Local Government Pension Scheme (Management and Investment of Funds) Regulations 2016 (the 2016 Regulations), made pursuant to these provisions, require an authority to formulate an investment strategy. This must be in accordance with the guidance and must include the authoritys policy on how social, environmental and corporate governance considerations are taken into account in its investment decisions (reg. 7). The appellants brought a claim for judicial review alleging that two passages in the guidance issued in 2016 by the Secretary of State pursuant to that regulation were unlawful. The first passage states that the Government has made clear that using pension policies to pursue boycotts, divestment and sanctions against foreign nations and UK defence industries are inappropriate, other than where formal legal sanctions, embargoes and restrictions have been put in place by the Government. The second passage states that authorities [s]hould not pursue policies that are contrary to UK foreign policy or UK defence policy. In the High Court the claim was upheld, and the two passages ruled unlawful, on the basis that the issue of them by the Secretary of State exceeded his powers. The Court of Appeal upheld the Secretary of States appeal. The appellants now appeal to the Supreme Court. By a majority, the Supreme Court allows the appeal and restores the High Courts order. Lord Wilson gives the main judgment, with which Lady Hale agrees. Lord Carnwath gives a concurring judgment. Lady Arden and Lord Sales give a joint dissenting judgment. Lord Wilson states that, to determine whether the issue of the guidance under challenge was lawful, the court must analyse the scope of the power conferred by Parliament on the Secretary of State. Pursuant to the decision of the House of Lords in Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (Padfield), it must do so by construing the words by which the power was conferred on him in their context. From the words in their context Parliaments purpose in conferring the power can be identified, and the purpose can be used to shed light on the powers scope [1, 20 22]. Lord Wilson observes that Schedule 3 to the 2013 Act identifies the matters which, in particular, Parliament had in mind when conferring the power, one of which was the administration and management of the scheme [23]. The 2016 Regulations, which can be used to interpret the Act, require the investment strategy to include the authoritys policy on how non financial considerations are taken into account (reg. 7) [24]. The guidance adopts two uncontroversial tests for the taking into account of such considerations: does the proposed step involve significant risk of financial detriment to the scheme and is there good reason to think that members would support taking it? These three legal instruments use words (including administration, management, how considerations are taken into account, and strategy) which, considered in their context, all point in the same direction: that the Acts policy is to identify procedures, and the strategy, which administrators should adopt in the discharge of their functions [25 26]. But in the passages under challenge, the Secretary of State has insinuated into the guidance something entirely different: an attempt to enforce the governments foreign and defence policies by providing that, even when the two tests above have been met, an administrator is prohibited from taking an investment decision if it runs counter to such policies [27]. Lord Wilson suggests that the Secretary of State was probably emboldened to exceed his powers by the misconception that the scheme administrators were part of the machinery of the state and discharge conventional local government functions. This fails to recognise that they have duties which, at a practical level, are similar to those of trustees, and they consider themselves quasi trustees who should act in their members best interests. The Secretary of States claim that contributions to the scheme are ultimately funded by the taxpayer is equally misleading: for the fund represents the contributing employees money, not public money [28 30]. In any event, the Secretary of States inclusion of the two passages in the guidance exceeded his powers. Power to direct how administrators should approach the making of investment decisions by reference to non financial considerations does not include power to direct what investments they should not make [31]. Lord Carnwath notes that, while the scope of the guidance is unclear, it appears to have been intended to preclude authorities who are making investment decisions both from engaging in political campaigns and from taking into account considerations in policy areas reserved for the UK government [36 40]. But the 2013 Act and the 2016 Regulations required any guidance to respect the primary responsibility of the authorities as quasi trustees of the fund [41 42]. The Secretary of State was not entitled, therefore, to make authorities give effect to his own policies in preference to those which they themselves thought it right to adopt in fulfilment of their fiduciary duties [43 44]. Lady Arden and Lord Sales consider that the purposes of the 2013 Act, which implemented the Hutton report, extend to reflecting the public interest and instituting good governance in the reformed public sector pension schemes [47, 69 80]. Guidance as to their management could include establishing the role of the Secretary of State in relation to investment [49]. Following consultation, the guidance related only to decisions based on non financial considerations which are taken to pursue boycotts and disinvestment campaigns against foreign nations [50 55, 82 5]. The Secretary of State had serious concerns that these might undermine foreign policy or trade and might lead to racist behaviour. These were matters for government [53 56]. The schemes were liable to be identified with the British state [58, 87 8]. The power to give guidance is not limited to procedural matters [62, 86, 89]. The leading authorities on the Padfield principle support the approach taken [63 68].
This appeal concerns the question of what is the effective date of termination of a persons employment. The determination of this date is important for a number of purposes. These include the marking of the start of the three month period within which proceedings for unfair dismissal may be taken. In the present case the relevant definition of the term is contained in section 97(1) of the Employment Rights Act 1996, which provides that, in relation to an employee whose contract of employment is terminated without notice, the effective date of termination means the date on which the termination takes effect. The Respondent, Lauren Barratt, was suspended from her employment with the Appellant, a small charitable organisation, because of alleged inappropriate behaviour at a private party. A disciplinary hearing was held on 28 November 2006 which the Respondent attended. At the end of the hearing she was told that she could expect to receive a letter on Thursday, 30 November informing her of the outcome. The Respondent left her home at 8 am on 30 November, however, before any letter arrived. She went to London to see and help her sister, who had given birth a week earlier. She did not return until late on Sunday evening, 3 December. A recorded delivery letter had arrived for the Respondent on 30 November, informing her that she had been summarily dismissed for gross misconduct. She did not read this letter until the morning of Monday, 4 December. The Respondent filed a claim for unfair dismissal and sex discrimination at the Employment Tribunal on 2 March 2007. Depending on the view that one takes of the date on which the Respondents employment was brought to an effective end, her claim was lodged either just within or just outside the period of three months from that date. If outside the period, the Respondent would be unable to maintain her claim to have been unfairly dismissed. The Employment Tribunal held that the unfair dismissal claim was in time. The decision was upheld on appeal by the Employment Appeal Tribunal and also, on a further appeal, by the Court of Appeal. Gisda Cyf appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. It holds that: (1) the effective date of termination of employment is when the employee is informed of the dismissal or when the employee has had a reasonable opportunity of discovering that she has been dismissed; (2) it is correct to include consideration of the behaviour of the employee in an assessment of whether the employee has had a reasonable opportunity to find out about the dismissal. The judgment of the Court is delivered by Lord Kerr. The broader issue in the case was whether the effective date of termination of employment is: (1) when an employee is informed of her dismissal or at any rate when she has had a reasonable opportunity of finding out; or (2) some other time, for example when a letter of dismissal is posted. In deciding that it was the former, the Court looked to the purpose of the 1996 Act. Although conventional principles of contract law may point towards the second of the two options, the appellants argument that conventional principles of contract law should determine the interpretation of section 97 must be rejected. The effective date of termination as defined in section 97 is a statutory construct which is to be interpreted in its statutory context. The interpretation must be guided principally by the underlying purpose of the statute [para 35; 41]. Section 97 is intended to hold the balance between employer and employee but it does not require that both sides be placed on an equal footing. The section is part of a charter protecting employees rights which recognises that employees as a class are in a more vulnerable position than employers. An interpretation that promotes those rights, as opposed to one which is consonant with traditional contract law principles, is to be preferred. An essential part of employees rights is the requirement that employees be informed of any possible breaches of their rights [para 35 37]. In particular, the legislation is designed to allow an employee three months not three months less a day or two to make a complaint of unfair dismissal [para 42]. Indeed, it would not be reasonable for time to begin to run against an employee in relation to his unfair dismissal complaint until the employee knows or, at least, has a reasonable chance to find out that he has been dismissed. It is entirely proper that the time (already short) within which one has the chance to decide whether to bring a claim should not be further abbreviated by complications surrounding the circumstances that someone receives information that she has in fact been dismissed [para 34]. The Court felt that the matter was put beyond doubt by consideration of the interim relief provision in section 128 of the 1996 Act. An application to the Employment Tribunal for interim relief by an employee who complains that he has been unfairly dismissed must be made within seven days following the effective date of termination of employment. If the effective date is taken to mean the date of the employers decision to dismiss or the date of his letter, the seven day period might completely expire before the employee becomes aware of the need to have recourse to it. Parliament could not have intended this [para 44 45]. The narrower issue in the case was whether it was correct to include consideration of the behaviour of an employee in an assessment of whether she has had a reasonable opportunity to find out about her dismissal. The Court, in holding that it was correct to include such consideration, reasoned that there is a need to be mindful of the human dimension in considering what is reasonable to expect of someone facing the prospect of dismissal from employment. To concentrate exclusively on what is practically feasible may compromise what can realistically be expected [para 30].
On 3 May 2006, the vessel Alexandros T sank and became a total loss 300 miles south of Port Elizabeth with considerable loss of life. Her owners were Starlight Shipping Company (Starlight). Starlight made a claim against their insurers, who denied liability on the basis that the vessel was unseaworthy with the privity of Starlight. In response, Starlight made a number of serious allegations against their insurers including allegations of misconduct involving tampering with and bribing of witnesses. On 15 August 2006, Starlight issued proceedings in the Commercial Court against various insurers (the 2006 proceedings). One group of insurers was described as the Company Market Insurers (CMI) and the other group was described as the Lloyds Market Insurers (LMI). Before the hearing, the 2006 proceedings were settled between Starlight and the insurers and the proceedings were stayed by way of a Tomlin Order. In April 2011, nine sets of Greek proceedings, in materially identical form, were issued by Starlight although they were expressed as torts actionable in Greece. The insurers sought to enforce the earlier settlement agreements. Starlight applied for a stay of these proceedings, firstly pursuant to Article 28 then Article 27 of Council Regulation (EC) No 44/2001 (the Regulation) The judge refused to grant a stay under Article 28 and gave summary judgment to the insurers. The Court of Appeal held that it was bound to stay the 2006 proceedings under Article 27, which provides for a mandatory stay, and it was not therefore necessary to reach a final determination of the position under Article 28. Before the Supreme Court, the insurers challenge the correctness of the Court of Appeals conclusion under Article 27 and submit that the judge was correct to refuse a stay under Article 28. Starlight cross appeal on the Article 28 point. Subject to the possibility of a reference to the CJEU on some limited questions, the Supreme Court unanimously allows the CMIs and LMIs appeal. Lord Clarke gives the lead judgment, with which Lord Sumption and Lord Hughes agree. Lord Neuberger agrees adding a short judgment of his own. Lord Mance agrees with the result. Article 27 Article 27 must be construed in its context. The purpose of Article 27 is to prevent the courts of two Member States from giving inconsistent judgments and to preclude, so far as possible, the non recognition of a judgment on the ground that it is irreconcilable with a judgment given by the court of another Member State [23, 27]. In the case of each cause of action relied upon, it is necessary to consider whether the same cause of action is being relied upon in the Greek proceedings. In doing so, the defences advanced in each action must be disregarded [29]. The essential question is whether the claims in England and Greece are mirror images of each other and thus legally irreconcilable [30]. There are three heads of claim in England: indemnity, exclusive jurisdiction and release [32]. None of the causes of action relied upon in the Greek proceedings has identity of cause or identity of object with the CMIs claim for an indemnity. The subject matter of the claims is different. The Greek proceedings are claims in tort (or its Greek equivalent) and the claims in England are claims in contract. As to object, that of the Greek proceedings is to establish a liability under Greek law akin to tort, whereas the object of the CMIs claim is to establish a right to be indemnified in respect of such a liability and to claim damages for breach of the exclusive jurisdiction clauses [34]. The same is true of the CMIs claims in respect of the exclusive jurisdiction clauses in the settlement agreement and/or in the insurance policies [36]. The causes of action based upon an alleged breach of the settlement agreement are not the same causes of action as are advanced in Greece [37]. The same is also true of the claims based on the release provisions in the CMI settlement agreement [40]. The Greek claims are claims in tort and the English proceedings are contractual claims. The factual bases for the two claims are entirely different. Moreover, the object of the two claims is different [41]. The Supreme Court is unanimous that that is the position with regard to the claims for damages for breach of the release provisions in the settlement agreements. However, in so far as the insurers claim declarations, while the majority reaches the same conclusion, Lord Mance reaches a different conclusion on the basis that the claims for declarations in the two jurisdictions are mirror images of each other. The court unanimously decides that, unless the insurers abandon those claims for declarations, the relevant question should be referred to the CJEU for an opinion [59]. In the event, the CMI have now abandoned their claims for declarations based on the release provisions and it is not necessary to refer the question to the CJEU. It follows that the CMIs appeals under Article 27 are allowed. The position of the LMI is essentially the same as in the case of the CMI [55]. If the LMI do the same within the time permitted, their appeals will also be allowed under Article 27. A similar position has been reached in respect of LMIs submission that the appeals under Article 27 should have been rejected by the Court of Appeal as being too late [123]. Article 28 The discretion to stay claims under Article 28 is limited to any court other than the court first seised [74]. On the assumption that the English court is second seised for the purposes of Article 28, the question arises whether the actions should be stayed as a matter of discretion [91]. The circumstances of each case are of particular importance but the aim of Article 28 is to avoid parallel proceedings and conflicting decisions. In a case of doubt it would be appropriate to grant a stay [92]. However, the natural court to consider the issues raised by CMI and LMI is the High Court in England because they raise contractual questions governed by English law and because it is at least arguable that the parties have agreed that they should be decided by the High Court, where the proceedings are more advanced than in Greece [96]. The decision of the judge in refusing a stay under Article 28 is upheld and the cross appeal is dismissed [97, 125].
Sigma Finance Corporation is a structured investment vehicle (SIV) established to invest in certain types of asset backed securities and other financial instruments. Sigma aimed to profit from the difference between the cost of funding its activities and the returns made on its investment portfolio. However, the impact on the financial markets stemming from the sub prime mortgage market in the United States has meant that Sigmas available assets now fall very far short of the amount needed to pay even the secured creditors of the SIV. All of Sigmas assets are secured under a security trust deed (STD) in favour of those of its creditors investing in and through Sigma. The dispute in this case is between various classes of creditors as to the correct application of the STD where Sigma has insufficient funds to satisfy all its creditors and had failed to meet a margin call. The STD provided that in that event there should be a 60 day realisation period during which the trustees should use Sigmas assets to create, so far as possible, two pools of funds relating to its short and long term liabilities. But clause 7.6 of the STD also provided that: During the Realisation Period the Security Trustee shall so far as possible discharge on the due dates therefor any Short Term Liabilities falling due for payment during such period, using cash or other realisable or maturing Assets of the Issuer. The Court of Appeal, by a majority, construed clause 7.6 as meaning that the remaining assets fall to be distributed preferentially to the creditors whose debts fall due during the realisation period, with distribution to be made according to the dates when payment became due. The Supreme Court by a majority of four to one allowed the appeal by other creditors whose debts fell due after the realisation period. The principal judgment was delivered by Lord Mance, with whom Lords Hope, Scott and Collins agreed. Lord Walker dissented for the reasons outlined below). The principles of contractual construction to be applied were well established and required consideration of the basic scheme of the STD. Clause 7.6 appeared in the STD in the context of an assumption that Sigma would retain sufficient assets to cover its secured creditors. It was not intended to deal with a situation requiring the application of priorities between creditors. was improbable that clause 7.6 could be read as extracting from the short term pool debts which fell due during the 60 day realisation period so as to give priority over other creditors. (Paras [9] [10], [12], [13] [17]) It was also improbable that the parties would have contemplated priorities being conferred by the fortuitous timing of debts falling due during the realisation period. Clause 7.6 was an ancillary provision which did not override the trustees absolute discretion as to the manner in which assets were to be realised. No provision would have been made for the fees of the trustee if the Court of Appeal were correct. The reasonable persons understanding of clause 7.6 was aided by a clear basic scheme that debts arising during the realisation period were to be part of the short term pool of creditors with the assets to be distributed equitably amongst all the creditors at the discretion of the trustee. (Paras [21] [22], [25], [32] [33]) Lord Collins added that textual analysis of the type used to interpret tax legislation was not appropriate to a commercial contract. Detailed semantic analysis must give way to common sense. (Paras [35] [38]) Lord Walker dissented. He found that on closer examination the case involved no issue of general public importance. The legal principles were not disputed and the Court should avoid making new contracts for experienced commercial parties. (Paras [42] [46])
The issue in the two appeals relates to the circumstances in which statutory incompatibility will defeat an application by a member of the public to register land as a town or village green (a green) under the Commons Act 2006 (the Act) where the land is held by a public authority for statutory purposes. At issue in the first appeal is land, divided into five areas, adjacent to Moorside Primary School in Lancaster and owned by Lancashire County Council (LCC). A local resident applied to register the land as a green based on 20 years qualifying use. LCC objected on the basis that the land was acquired and remains appropriated for education purposes under LCCs statutory powers as education authority. An inspector appointed by the Secretary of State determined that four of the five areas should be registered. She was not satisfied that the land was in fact acquired and held for education purposes and, even if it had been, there was no good statutory incompatibility defence available to LCC. The inspectors determination was upheld by Ouseley J in the High Court on LCCs application for judicial review. The second appeal concerns a site at Leach Grove Wood in Leatherhead owned by NHS Property Services Ltd (the NHS). An application was made to register the site as a green, relying on use over a period of 20 years. An inspector recommended refusal of registration, but the registration authority, Surrey County Council (SCC), did not accept this and registered the land. On the NHSs application for judicial review in the High Court, Gilbart J distinguished the judgment of Ouseley J and quashed the registration on the basis that SCC had failed properly to consider statutory incompatibility. The appeals were heard together by the Court of Appeal, which upheld the decision to register in both cases. LCC and the NHS appealed to the Supreme Court. By a majority, the Supreme Court allows the appeals in both cases. Lord Carnwath and Lord Sales give the majority judgment, with which Lady Black agrees. Lady Arden gives a partly dissenting judgment and Lord Wilson gives a dissenting judgment. The inspectors finding in the Lancaster case that the land was not acquired and held pursuant to statutory education purposes was inconsistent with the evidence and irrational [33] [34]. Therefore the central issue in both the cases under appeal is the interpretation and application of the statutory incompatibility ground of decision identified in the majority judgment in the Supreme Court in R (Newhaven Port & Properties Ltd) v East Sussex County Council [2015] UKSC 7 (Newhaven) [43]. The majoritys opinion is that Newhaven authoritatively interpreted the Act to mean that where land is acquired and held for defined statutory purposes by a public authority, the Act does not enable the public to acquire rights over that land by registering it as a green where such registration would be incompatible with those statutory purposes [48]. Here there is an incompatibility between the statutory purposes for which the land is held and use of that land as a green and therefore the Act is not applicable [55]. The test set out in Newhaven is not whether the land has been allocated by statute for particular purposes, but rather whether it has been acquired by the public authority pursuant to its statutory powers and is held for the purposes of those powers, where those purposes are incompatible with registration of the land as a green [56]. The reference to acquisition by both voluntary sale and compulsory purchase is significant, since acquisition by voluntary sale will typically involve the exercise of general statutory powers rather than specific statutory provisions framed by reference to the land itself [57]. This construction of the Act is unsurprising; there is no indication that the general provisions in the Act regarding registration as a green were intended to have the effect of preventing use of land held by a public authority for specific public purposes defined in statute [61]. This general point can be made with particular force in relation to land held pursuant to the exercise of statutory compulsory purchase powers, since such powers are created for use in circumstances where there is an especially strong public interest that land should be used for particular purposes, such as is capable of justifying compelling a land owner to sell their land against their wishes [63]. Applying the Act as interpreted in Newhaven, LCC and the NHS can show that there is statutory incompatibility in each case. In the Lancaster case, the rights claimed pursuant to the registration of the land as a green are incompatible with the use of the relevant areas for education purposes, including for example use of them as playing fields or for constructing new school buildings. LCC does not need to show they are currently being used for such purposes, only that they are held for such statutory purposes [65]. Similar points apply in the Surrey case: the issue of incompatibility has to be decided by reference to the statutory purposes for which the land is held, not by reference to how the land happens to be used at a particular point in time [66]. Lady Arden disagrees with the reasoning of the majority. She would have allowed the appeals save that she would have dismissed the appeal in relation to two of the areas of the Lancashire site and remitted the matter to the registration authority in the Surrey appeal [122]. In her view, the fact that a public authority holds land for statutory purposes that are incompatible with the use of the land as a green is not of itself sufficient to make the land incapable of being registered. It must be shown that the land is in fact being, or that it is reasonably foreseeable that it will be, used pursuant to those powers in a manner inconsistent with the publics rights on registration as a green [77]. Lord Wilson dissents from the majority and would have dismissed both appeals [123]. The Acts reach is substantially reduced if land held by public authorities for specified statutory purposes is to be immune from registration as a green that could theoretically be incompatible with those purposes [126]. Newhaven was concerned with statutes that conferred specific duties in relation to particular land. Those specific duties were incompatible with the general provision in the Act which therefore had to give way [131]. In contrast, the present cases involve statutory provisions that confer general powers to acquire and hold unspecified land for education and health purposes and these cannot be said to be incompatible with the provision in the Act [132].
This appeal concerns the nature and content of the doctrine of Crown act of state. The question arises from proceedings brought against the Ministry of Defence and the Foreign and Commonwealth Office (the Government) by a large number of people (the respondents) who claim to have been wrongfully detained or mistreated by UK or US forces in the course of the conflicts in Iraq and Afghanistan. Insofar as the proceedings include claims based on the Iraqi or Afghan law of tort, the Government has (along with other defences) raised the doctrine of Crown act of state. The question of whether the doctrine is applicable in these cases was ordered to be determined as a preliminary issue, before the individual cases are heard by the lower courts. The Government argues that certain acts of high policy committed by a sovereign state are not susceptible to adjudication in the courts (they are non justiciable), but also that Crown act of state is a defence to an action in tort where a foreigner seeks to sue the Government in the courts of this country in respect of certain acts committed abroad, pursuant to UK policy in the conduct of its foreign affairs. The respondents argue that the doctrine of Crown act of state is only a narrow rule of non justiciability for acts of high policy in the conduct of foreign relations, which does not extend to decisions made to detain or transfer particular individuals. In the High Court, Leggatt J held that the claims were justiciable, but declared that the Crown act of state doctrine provided a defence to the tort claims. The Court of Appeal allowed the respondents appeals. It held that the doctrine provided a tort defence as well as a non justiciability rule, but that the defence would only apply when the Government could establish that there were compelling grounds of public policy to refuse to give effect to the local tort law. No such grounds arose in the case of Mr Mohammed, which is the only claim so far in which the relevant facts and evidence have been pleaded. The Supreme Court unanimously allows the Governments appeals, holding that, insofar as the respondents tort claims are based on acts of an inherently governmental nature in the conduct of foreign military operations by the Crown, these were Crown acts of state for which the Government cannot be liable in tort. Lady Hale (with whom Lord Wilson agrees) gives the main judgment. Lord Mance, Lord Sumption, Lord Neuberger and Lord Clarke each give concurring judgments. Lord Hughes agrees with Lady Hale, Lord Mance and Lord Neuberger. The court will seek further submissions from the parties as to the appropriate form of declaration in each of these cases. A Crown act of state is a prerogative act of policy in the field of international affairs performed by the Crown in the course of its relationship with another state or its subjects [2]. The principle that there is no general defence of state necessity to a claim of wrongdoing by state officials has been established since the eighteenth century [4]. The early cases, however, indicated that there was an exception in the case of acts committed abroad against a foreigner which were authorised or ratified by the Crown [6]; it was also suggested that this doctrine encompassed two rules: one of non justiciability for certain prerogative acts of the Crown in sphere of foreign affairs and a second providing the Government or its servants with a defence to claims arising from acts of state committed abroad [19]. There is no reason to doubt that the first rule exists but the question for the Supreme Court is whether, as the Government submits, the doctrine also provides a defence to a claim which is otherwise suitable for adjudication for a court [22]. If the doctrine is to be confined to a non justiciability rule, a broader concept of non justiciability is required, which encompasses aspects of the conduct of military operations abroad as well as the high policy decision to engage in them. The courts may need to hear evidence and find facts in order to determine whether the acts in question fall within this category [33]. But the doctrine must be narrowly confined to a class of acts which involve an exercise of sovereign power, inherently governmental in nature, committed abroad, with the prior authority or subsequent ratification of the Crown, in the conduct of foreign relations of the Crown. The class of acts must be so closely connected to that policy to be necessary in pursuing it. It extends at least to the conduct of military operations which are themselves lawful in international law. The Government accepts that it cannot apply to acts of torture or to the maltreatment of detainees [36 37, 72, 81]. On the presently assumed facts, the respondents detention by Her Majestys forces and transfers out of British custody were steps taken pursuant to deliberately formed policy against persons reasonably suspected to be insurgents, in the context and furtherance of foreign military operations during a time of armed conflict, and were thus Crown acts of state for which the Government cannot be held liable in proceedings for common law damages [75, 95]. Lord Mance considers that the underlying principle of Crown act of state is one of non justiciability (or judicial abstention or restraint) and it creates unnecessary confusion to suggest that it has two branches [47]. Lord Sumptions analysis is that Crown act of state does offer a defence, but he doubts whether it helps to treat the doctrine as comprising two rules, and in any event in the present context the two rules merge into one [80]. Lord Neuberger agrees with Lord Sumption that the doctrine is ultimately based on the need for consistency or coherence in the distribution of functions between the executive and the judiciary in the United Kingdoms constitutional arrangements. It is not that a judge lacks the information or expertise to resolve the issue, but rather that there are certain governmental acts which owing to their nature or circumstances are not susceptible to judicial assessment [104]. The doctrine was not abolished by the Crown Proceedings Act 1947, which preserved the previous law by the proviso in section 2(1) [41]. It is also compatible with the right to a fair trial protected by article 6 of the European Convention on Human Rights, as it is clearly a rule of substantive law rather than a procedural bar [45]. The appeal is therefore allowed and a declaration substituted to the effect that, in proceedings in tort governed by foreign law, the Government may rely on the doctrine of Crown act of state to preclude the court passing judgment on the claim if the circumstances are such as stated in paragraphs 36 37 of this judgment [46].
These appeals concern the obligations of insurance companies under various contracts of employers liability (EL) insurance. In particular, the appeals concern the scope of the insurers obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later. The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendants negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employees mesothelioma was caused by exposure to asbestos during a particular policy year. At first instance Burton J held that the policies should all be interpreted as having a causation wording. He therefore held that the liability trigger under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed. A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease contracted during the relevant insurance period); however they concluded that other policies (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma sustained or contracted at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employees body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an employee sustained or contracted mesothelioma during a particular policy period? The Supreme Court dismisses the insurers appeal by a 4 1 majority; Lord Phillips dissenting on the second issue. Lord Mance gives the main judgment. To resolve the meaning of the EL policies it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more generally [19]. Several features point the way to the correct construction. First, the wordings of the policies on their face require the course of employment to be contemporaneous with the sustaining of the injury [20]. Second, the wordings demonstrate a close link between the actual employment undertaken during each period and the premium agreed by the parties for the risks undertaken by the insurers in respect of that period. Third, on the insurers case there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to disease or injury in another later period [24]. Fourth, on the insurers case employers would be vulnerable to any decision by the insurers not to renew the policy. A decision not to renew might arise from the employers complying with their duty to disclose past negligence upon any renewal. Employers who discovered that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease would have such a duty. The insurers could then simply refuse any renewal or further cover [25]. Fifth, the way most of the policies deal with extra territorial issues throws doubt on any suggestion that the wordings are so carefully chosen that a court should stick literally to whatever might be perceived as their natural meaning [28]. Section 1 of the Employers Liability Compulsory Insurance Act 1969 also points the way to the correct interpretation. This states that every employer shall insure, and maintain insuranceagainst liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment. In order to give proper effect to the protective purpose of that legislation, the Act requires insurance on a causation basis [47]. There is no difficulty in treating the word contracted as looking to the causation of a disease, rather than its development or manifestation. The word contracted used in conjunction with disease looks to the initiating or causative factor of the disease [49]. While the word sustained may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later [50]. In relation to the second issue, the question is whether the EL policies cover employers liability for mesothelioma arising under the special rule in Fairchild/Barker [71]. Under that rule the law accepts a weak or broad causal link between the employers negligence and the employees mesothelioma. When construing the EL policies the concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule [74]. The purpose of the EL policies was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies [88]. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurers obligation to indemnify the employer [74]. Lord Phillips dissents on the second issue. The special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. This conclusion is not affected by section 3 of the Compensation Act 2009, which did not alter the jurisprudential basis of the Fairchild/Barker approach [132] [133].
The claimants, who have been given anonymity, seek damages for personal injuries suffered while they were children living in the area of the defendant council. They maintain that the injuries were suffered as a result of the councils negligent failure to exercise its powers under the Children Act 1989 (the 1989 Act) so as to protect them from harm at the hands of third parties. The claimants allege that in May 2006 they and their mother were placed by the council in a house on an estate in Poole next to a family who, to the councils knowledge, persistently engaged in anti social behaviour. The claimants and their mother became the target of harassment and abuse at the hands of this family, which persisted over a period of several years until they were re housed in December 2011. This included vandalism of the mothers car, attacks on the family home, threats of violence, verbal abuse, and physical assaults on the mother and one of the claimants. As a result, the claimants suffered physical and psychological harm. During the period in question, both claimants were identified by the council as children in need as defined in the 1989 Act, and had social workers allocated to them. The claimants initially brought their claim on the basis that the council had been negligent in the exercise of both its housing functions and its functions under the 1989 Act. The claim was struck out by Master Edelman on the basis that no relevant duty of care towards the claimants arose out of the statutory powers and duties relied on. The claimants appealed in relation the councils functions under the 1989 Act only. The appeal was allowed by Mrs Justice Slade in the High Court. The Court of Appeal then allowed the councils further appeal. The claimants now appeal to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Reed, with whom the rest of the Court agrees, delivers the judgment. The claimants particulars of claim do not disclose any recognisable basis for a cause of action. The case should not proceed to trial. The claimants focus on section 17 and 47 of the 1989 Act, but it is accepted that the Act does not create a statutory cause of action. Therefore, the question is whether local authorities may be liable for breach of a common law duty of care in relation to the performance of their functions under the Act. [25] Public authorities do not owe a duty of care at common law merely because they have statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm. However, they can come under a common law duty to protect someone from harm in circumstances where the principles applicable to private individuals or bodies would also impose such a duty, as for example where the authority has created the source of danger or assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation. [65] The present case is not one where the council is alleged to have harmed the claimants, but one in which the council is alleged to have failed to provide a benefit to the claimants by protecting them from harm. [74] The claimants case is that the council had assumed a responsibility towards them to take reasonable care in investigating and monitoring their position. If such care had been taken, the council would have exercised its powers under the 1989 Act to remove the claimants from their home into at least temporary care. The councils conduct in investigating and monitoring the claimants position did not, however, involve the provision of a service to them on which they or their mother could be expected to rely. It could not be said that the claimants and their mother had entrusted their safety to the council, or that the council had accepted that responsibility. Nor had the council taken the claimants into its care, and thereby assumed responsibility for their welfare. The council therefore did not assume a responsibility towards them. [80] [81] The claimants also advance an alternative claim on the basis that the council is vicariously liable for negligence by the social workers in its employment. There is no doubt that, in carrying out the councils statutory functions, the social workers were under a contractual duty to the council to exercise proper professional skill and care. The question is whether, in addition, they also owed a similar duty to the claimants under the law of tort. That depends on whether the social workers assumed a responsibility towards the claimants to perform their functions with reasonable care. [86] A defendant may assume responsibility to a claimant where he undertakes the performance of some task or the provision of some service for the claimant with an undertaking that reasonable care will be taken. Such an undertaking may be express but is more commonly implied, usually by reason of the foreseeability of reliance by the claimant on the exercise of such care. [88] In the circumstances of this case, however, the particulars of claim do not set out any basis on which such an assumption of responsibility might be established at trial. [89] Any uncertainty as to whether this case is one which can properly be struck out is eliminated by the further difficulties that arise in relation to the claimants case that the council breached its duty of care by failing to remove the claimants from their home into, at least, temporary care. In order to obtain a care order under the relevant provisions, it would have been necessary to establish that the claimants were suffering, or were likely to suffer, significant harm which was attributable to a lack, or likely lack, of reasonable parental care. The harm suffered by the claimants was attributable to the conduct of the neighbouring family, rather than a lack of reasonable parental care. There were simply no grounds for removing the children from their mother. [90]
For the purposes of the appeal, the Court was invited to assume that Mr Gubay controlled a leisure company, Langstone, of which Mr Willers was a director. Mr Willers was later dismissed as director of Langstone and in 2010 Langstone sued Mr Willers for alleged breach of contractual and fiduciary duties in pursuing litigation. On 28 March 2013, Langstone discontinued its claim against Mr Willers. Mr Willers claimed that the claim brought against him by Langstone was part of a campaign by Mr Gubay to do him harm. Consequently he sued Mr Gubay for malicious prosecution. It was not disputed that the alleged actions of Mr Gubay constituted the necessary ingredients for a claim in malicious prosecution (on the assumption Mr Willers could substantiate such claims at trial); the question was whether a claim in malicious prosecution could be brought in relation to civil proceedings by an individual against another individual. Malicious prosecution already exists in relation to criminal proceedings. If a malicious prosecution did exist in relation to civil proceedings as between private individuals, then Mr Willers claim would be permitted to go to trial. The Supreme Court allows Mr Willers appeal by a majority of 5 to 4 ruling that the entirety of Mr Willers claim should be permitted to go to trial. Lord Toulson (with whom Lady Hale, Lord Kerr and Lord Wilson agree) gives the lead judgment. Lord Clarke delivers a concurring judgment. Lords Neuberger, Mance, Sumption and Reed give dissenting judgments. It seems instinctively unjust for a person to suffer injury as a result of the malicious prosecution of legal proceedings for which there is no reasonable ground, and yet not be entitled to compensation for the injury intentionally caused by the person responsible for instigating it [43]. The tort will not deter those who have valid claims. This was the argument advanced for not allowing the tort in criminal proceedings. It has no greater merit in civil proceedings [44]. There is a public interest in finality and in avoiding unnecessary satellite litigation, but an action for malicious prosecution does not amount to a collateral attack on the outcome of the first proceedings [46]. The tort does not create a duty of care. There is a great difference between imposing a duty of care and imposing a liability for maliciously instituting proceedings without reasonable or probable cause [49]. Over the last 400 years there has been a volume of case law about malice, and the related requirement of absence of reasonable and probable cause, for the purposes of the tort of malicious prosecution [53]. To make out malicious prosecution it is well established that the requirements of absence of reasonable and probable cause and malice are separate requirements although they may be entwined. In order to have reasonable and probable cause, the defendant does not have to believe that the proceedings will succeed. It is enough that, on the material on which he acted, there was a proper case to lay before the court. Malice is an additional requirement. As applied to malicious prosecution, it requires the claimant to prove that the defendant deliberately misused the process of the court. The most obvious case is where the claimant can prove that the defendant brought the proceedings in the knowledge that they were without foundation. But the authorities show that there may be other instances of abuse. A person, for example, may be indifferent whether the allegation is supportable and may bring the proceedings, not for the bona fide purpose of trying that issue, but to secure some extraneous benefit to which he has no colour of a right. The critical feature which has to be proved is that the proceedings instituted by the defendant were not a bona fide use of the courts process [54 55]. The combination of requirements that the claimant must prove not only the absence of reasonable and probable cause, but also that the defendant did not have a bona fide reason to bring the proceedings, means that the claimant has a heavy burden to discharge [56]. Lord Clarke delivers a concurring judgment by reference to the arrest of ships, the ingredients of the tort of misfeasance in public office and the close affinity between malicious prosecution of criminal proceedings and malicious prosecution of civil proceedings [60 91]. Lord Neuberger delivers a dissenting judgment with twelve reasons for why the tort of malicious prosecution should not available in respect of civil proceedings between one private litigant and another as well as in criminal proceedings. The key reasons are that the tort would be inconsistent with the general rule that a litigant owes no duty to his opponent in the conduct of civil litigation [157], inconsistent with witness immunity from civil liability [158], create a danger of satellite litigation [163] and may have a chilling effect on the bringing civil proceedings [166]. Lord Mance delivers a dissenting judgment. The extension of malicious prosecution is not supported by the authorities [95 129] or by policy because, for example, there is no duty of care owed between litigants [130 140, see 135]. Lord Sumption adds a dissenting judgment. When recognising new species of non consensual liability, the common law must develop coherently. The recognition of a general liability for maliciously prosecuting civil proceedings circumvents the principled limits that the courts have imposed on the tort of abuse [178]. Its developments must also be warranted by current values and social conditions. The courts have far more extensive powers today than they did a century and a half ago to prevent abuse of their procedures [179]. Lord Reed adds a dissenting judgment in agreement with Lords Neuberger and Mance adding observations including a caution against relying on 16th to 18th century cases in a judgments reasoning, especially when constructing their historical context may be difficult [182 3].
Prior to 4 October 2007, Mr and Mrs Fielding, (the Defendants) were directors and controlling shareholders of Burnden Holdings (UK) Limited (the Claimant). The Claimant was the holding company of a number of trading subsidiaries, including Vital Energi Utilities Ltd (Vital). On 4 October 2007, the shareholders of the Claimant exchanged their shares for shares in a new holding company for the group, BHU Holdings Ltd (BHUH). On 12 October 20071, in an approved transaction, the Claimant effected a distribution in specie of its shareholding in Vital to BHUH. Subsequently, the shareholding in Vital was transferred to another new holding company (VHL). Mrs Fielding later sold her shareholding in VHL, and the Claimant went into liquidation. On 15 October 2013, more than six years after the 12 October 2007 distribution, the Claimant, by its liquidator, issued proceedings against the Defendants for the unlawful distribution in specie of the Claimants shareholding in Vital. This was outside of the six year limitation period set out in section 21(3) of the Limitation Act 1980 in respect of an action by a beneficiary for breach of trust. The Defendants applied to the High Court for summary judgment on the basis that the claim was time barred. For the purposes of the present appeal, it is assumed that the distribution was unlawful, because this appeal concerns only the limitation issues; however, the unlawfulness of the distribution is contested by the Defendants in the main proceedings. The High Court granted summary judgment in favour of the Defendants on the ground that the claim was time barred. The Court of Appeal set aside the judges order for summary judgment on the basis that the limitation period did not run against the Claimant, because section 21(1)(b) of the Limitation Act 1980 (section 21(1)(b)) provides that no limitation period applies to an action by a beneficiary under a trust to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use. The Court of Appeal further held that, in any event, there was a triable issue as to whether section 32 of the Limitation Act 1980 (section 32) applied. Section 32 provides that where any relevant fact has been deliberately concealed by the Defendant, the period of limitation does not begin to run until the plaintiff has, or could have, discovered the concealment. The Defendants appealed to the Supreme Court on the proper construction of section 21(1)(b) (in particular whether company directors are in possession of or have previously received trust property within the meaning of that section), and section 32.2 1 The date of this transaction is in issue in the main proceedings, but for the purposes of this appeal, 12 October 2007 is accepted as the relevant date. 2 Since the Court of Appeal judgment, the Claimant has amended its claim to include an allegation of fraud. Under section 21(1)(a) of the Limitation Act, this means there could not now be summary judgment for the Defendants. Nonetheless the issue as to the meaning of section 21(1)(b) is of sufficient importance to have made it appropriate for this appeal (for which permission had been obtained prior to the amendment pleading fraud) to proceed. The Supreme Court unanimously dismisses the appeal, finding that section 21(1)(b) applies to trustees who are company directors, who are to be treated as being in possession of the trust property from the outset. The Court declines to express a final view on section 32. Lord Briggs gives the judgment, with which the rest of the Court agrees. Section 21 For the purposes of section 21, the Defendants are regarded as trustees, because they are entrusted with the stewardship of the companys property and owe fiduciary duties to the company in respect of that stewardship. The company is regarded as the beneficiary of the trust under section 21 [11]. Contrary to the Defendants submissions, section 21(1)(b) does not become inapplicable merely because the misappropriated property has remained legally and beneficially owned by corporate vehicles, rather than having become vested in law or in equity in the defaulting directors [16]. The purpose of section 21(1)(b), as laid down in In re Timmis, Nixon v Smith [1902] 1 Ch 176 and JJ Harrison (Properties) Ltd v Harrison [2002] 1 BCLC 162, is to give a trustee the benefit of the lapse of time when, although he had done something legally or technically wrong, he had done nothing morally wrong or dishonest. It is not intended to protect him where, if he pleaded the statute, he would come off with something he ought not to have [17]. Section 21 is primarily aimed at express trustees and is applicable to company directors by a process of analogy. An express trustee might or might not from time to time be in possession or receipt of the trust property [18]. By contrast, in the context of company property, directors are to be treated as being in possession of the trust property from the outset. It is precisely because, under the typical constitution of an English company, the directors are the fiduciary stewards of the companys property, that they are trustees within the meaning of section 21. If their misappropriation of the companys property amounts to a conversion of it to their own use, they will necessarily have previously received it, by virtue of being the fiduciary stewards of it as directors [19]. In relation to trustees who are company directors, it may be that the requirement in section 21(1)(b) that the property be previously received by them adds little or nothing to the other conditions for the disapplication of the limitation period. However, that requirement is not redundant in relation to trustees generally [20]. On the assumed facts of the present case, the Defendants converted the companys shareholding in Vital when they procured or participated in the unlawful distribution of it to BHUH. By the time of that conversion the defendants had previously received the property because, as directors of the Claimant, they had been its fiduciary stewards from the outset [22]. Section 32 In depth analysis of the section 32 issue would take the court into a minefield of difficulties. It is not necessary to decide this point because of the recent plea of fraud, and because of this courts decision about the meaning of section 21, which mean the issue is unsuitable for summary judgment. Accordingly the court expresses no view on the correctness of the Court of Appeals approach to section 32(2) [26].
The appellants, all Algerian nationals, were suspected terrorists whom the Secretary of State proposed to deport to Algeria. It was common ground that Algeria was a country where torture was systematically practised by state officials and no state official had ever been prosecuted for it. The Secretary of State obtained assurances from the Algerian Government that the appellants rights not to be tortured or subjected to other ill treatment would be respected on return to Algeria. The Special Immigration Appeals Commission Act 1997 established an appeal system which allows where necessary for closed material procedures and the appointment of special advocates. If the Secretary of State wishes to adduce evidence which, for reasons of national security or other sufficient public interest reasons, cannot safely be communicated to the other party, SIACs rules and procedures provide for this to be done. In this case, however, it was one of the appellants who wished to adduce evidence from a witness (W), who had inside knowledge of the position in Algeria and asserted that, notwithstanding the Algerian Governments official assurances, those in the appellants positions were in fact likely to be subjected on return to torture or other ill treatment. W was prepared to give evidence in the appellants appeals to SIAC only on one unalterable condition: that his identity and evidence would by order remain absolutely and irrevocably confidential to SIAC and the parties to the appeals. W was concerned that the Secretary of State might otherwise seek to communicate his evidence to the Algerian authorities, if only to assess its veracity and reliability, and that her doing so would place him and/or his family in peril. The Secretary of State had two main objections to such an order being made. First, she would be unable to participate effectively in the conduct of the appeals before SIAC, being unable to test either the validity of the reasons asserted by W in support of his claimed need for confidentiality or the substance of Ws evidence itself. Secondly, the Secretary of State may find herself in possession of information pointing to the existence of a terrorist threat abroad or some other risk to national security, yet, bound by SIACs order, unable to alert the foreign state to the risk. This could gravely imperil future diplomatic relations with foreign states. The question in the appeals therefore was whether it was open to SIAC to make an order for an absolute and irreversible guarantee of total confidentiality in respect of Ws identity and evidence before the same were disclosed to the Secretary of State (in circumstances where it would nevertheless remain open to the Secretary of State to challenge the admissibility or weight of that evidence before SIAC in its determination of the substantive appeals). The Supreme Court unanimously allows the appeals. Lord Brown gives the leading judgment of the Court; Lord Dyson gives a concurring judgment. The fundamental objection of the Secretary of State to the proposed order, based on her concerns about being obliged to withhold vital information relating to national security from a foreign state, thereby imperilling future diplomatic relations, is unpersuasive [11] [13]. It must surely be a substantial defence to any diplomatic complaint by a foreign state that the Secretary of State is subject to a final and absolute court order prohibiting her from acting differently [14]. A number of recent international instruments are replete with statements urging states to ensure that witnesses are protected against ill treatment or intimidation, particularly in a human rights context [15]. The imperative need here is to maximise SIACs chances of arriving at the correct decision on the issue before them concerning the safety of the appellants on return to Algeria and, therefore, for SIAC to obtain all such evidence as may contribute to this task [18]. Accordingly, it is open to SIAC to make absolute and irreversible ex parte orders of the kind sought in this case and on occasion it may be appropriate to do so [19]. The power to make such orders should however be used most sparingly [19]. Before making one of the proposed ex parte orders, SIAC should require the very fullest disclosure from the applicant (A) of (a) the proposed evidence from As proposed witness (W), (b) the particular circumstances in which W claims to fear reprisals, and (c) how A and his legal advisers came to hear about Ws proposed evidence and what if any steps they have taken to encourage W to give that evidence in the usual way subject to the usual steps generally taken to safeguard witnesses in such circumstances (e.g. anonymity orders and hearings in private) [20]. SIAC should only then, in the interests of justice, grant such an order if it (1) is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and (2) has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals if his identity and the evidence that he is willing to give were disclosed to the relevant foreign state [34]. Notwithstanding the absolute and irreversible nature of the order, it should in addition be open to the Secretary of State, upon such order being made, to try to persuade SIAC either to seek from A and W a sufficient waiver of the ex parte order forbidding any further communication of the information, or, if such waiver proves unobtainable, to exclude or regard with additional scepticism the evidence submitted [21]. The Court, in permitting the making of such ex parte orders in the circumstances of this case, has in no way been influenced by the circumstances in which the Secretary of State is on occasion entitled to adduce evidence in closed proceedings divulged only to a special advocate and not to A. The scope of the orders sought here should not be regarded as levelling the playing field between the parties: the Secretary of State in cases before SIAC acts in the wider public interest and not as an interested party [22]. The same considerations and the same result would follow if the case engaging as it does here the rights of the appellants under article 3 of the ECHR raised a question under article 2 of the same. However, if the ground on which an appellant is resisting deportation is an alleged risk of breach of some other article of the ECHR (e.g. article 8), the balance will almost certainly be struck the other way. In those circumstances it would be inappropriate to make an ex parte order to protect the confidentiality of a witness [38].
This appeal concerns the extent of the power of the Sea Fish Industry Authority to impose a levy on persons engaged in the sea fish industry and the compatibility with EU law of the levy imposed. The Sea Fish Industry Authority (the Authority) is established under the Fisheries Act 1981 (the 1981 Act) for the purposes of promoting the efficiency and serving the interests of the sea fish industry. Section 4(3) of the 1981 Act provides that regulations may be made imposing a levy on persons engaged in the sea fish industry in respect of the weight of sea fish or sea fish products landed in the United Kingdom. The regulations which have been made in pursuance of this power are the Sea Fish Industry Authority (Levy) Regulations 1995 (the 1995 Regulations). They expressly make a levy payable not only on sea fish and sea fish products first brought to shore in the United Kingdom, but also on imported sea fish and sea fish products. Bloomsbury International Limited and the other Respondents are importers who brought these proceedings to challenge the validity of levies made on them in respect of imports. The Department for the Environment, Food and Rural Affairs, and the Authority appeared in the proceedings to defend the validity of the levy. The first basis of challenge was that the power to levy contained in the 1981 Act did not extend to imposing a levy in respect of sea fish or parts of sea fish first brought to shore outside the United Kingdom and only later imported into the United Kingdom. The second basis of challenge was that even if the statutory power did extend so far, the imposition of such a levy was and is a charge equivalent to a customs duty and therefore contrary to Articles 28 and 30 of the Treaty on the Functioning of the European Union (TFEU). Hamblen J dismissed the claim at first instance, rejecting both grounds of challenge. An appeal against that decision was upheld by the Court of Appeal, which acceded to both grounds. The Appellants then appealed to the Supreme Court. The Supreme Court unanimously allows the appeal, holding that the statutory power extends to imposing a levy in respect of imported sea fish or parts of sea fish and that such a levy is not a charge equivalent to a customs duty contrary to EU law. Lord Mance gives the lead judgment and Lord Phillips gives an additional judgment on the first issue only. The first issue was whether the statutory power permitted the imposition of a levy on imported sea fish and sea fish products. Lord Mance noted that there is a choice between a wider and a narrower sense of the word landed in section 4(3) of the 1981 Act. The wider sense would cover any form of bringing into the United Kingdom, commonly by sea or air, wherever the sea fish or sea fish product may have been first brought to shore after catch. The narrower sense would cover only the first bringing to shore after catch. In matters of statutory construction, the statutory purpose and the general scheme by which it is to be put into effect are of central importance. They represent the context in which individual words are to be understood. The Authority is set up by the 1981 Act to promote the efficiency of the sea fish industry, which is defined specifically to include importers. Thus the purpose and scheme of the 1981 Act are expressed in terms extending to importers generally. Yet the narrower sense of the word landed would mean that very few such importers actually contributed to the levy. [11] Further, the predecessor schemes to that introduced by the 1981 Act had all involved levies imposed on imports and no reason was suggested for any change of policy under the 1981 Act so as to exclude fish importations and importers. In addition, section 4(8) of the 1981 Act expressly included within the meaning of landed the bringing of sea fish and sea fish products through the Channel Tunnel. Although not expressly defined so as to include imports by ferry or air, it would be discriminatory and irrational for the 1981 Act to distinguish between that mode of importation and by Channel Tunnel. [13]; [16] Lord Phillips also remarked on the unusual feature in this case that for nearly thirty years everyone concerned has proceeded on the basis that the phrase should be given the wider meaning. In those circumstances there must be, at the least, a powerful presumption that the meaning that has customarily been given to the phrase is the correct one. [58] As to the second issue, Articles 28 and 30 TFEU prohibit and render void charges having equivalent effect to a customs duty (CEEs). The principal feature of a CEE is that it is levied solely or exclusively by reason of goods crossing a frontier within the European Union, whereas domestic products are excluded from a similar charge. In respect of the levy in question, it is imposed by reason of the sea fish or sea fish product crossing a frontier in the European Union. As to whether the levy is imposed solely or exclusively by reason of the crossing of the frontier, however, this will not be the case if the levy forms part of a general system of internal dues applied systematically to categories of products according to objective criteria and without regard to the origin of the products. The levy does form part of such a system. In particular, the Court of Appeal was wrong to suggest that sea fish products which are both manufactured and sold in the United Kingdom would escape the levy, in contrast to imported sea fish products: the levy would be payable on the fish content of the domestic products either when the constituent fish was first sold, or if there had been no prior sale, at the sale of the fish product. Nor could it be said that the levy would constitute a CEE on the basis that it would involve the imposition of charges at differing production or marketing stages, which is impermissible. The levy is consistently imposed at the point at which the sea fish is placed on the market and enters the supply chain. [40]; [43]; [47] For these reasons the appeal was allowed and Respondents challenge to the levy dismissed. [54]
These three appeals concern requests for extradition under European arrest warrants (EAWs). The Lithuanian Ministry of Justice issued EAWs for Mindaugas Bucnys based on convictions for housebreaking and fraud and for Marius Sakalis based on his conviction for sexual assaults. The Estonian Ministry of Justice issued an EAW for Mr Dimitri Lavrov based on a conviction for murder. EAWs are warrants intended to meet the requirements of Council Framework Decision 2002/584/JHA on surrender procedures between member states of the EU (the Framework Decision). Within the United Kingdom, Part 1 of the Extradition Act 2003 (the 2003 Act) was enacted to give effect to the same requirements. Under section 2(7) of the 2003 Act the requests were, after receipt in this country, certified by the Serious Organised Crime Agency (SOCA) (now the National Crime Agency (NCA), the designated authority under section 2(8), as Part 1 warrants issued by a judicial authority of a category 1 territory having the function of issuing arrest warrants. The questions of principle raised by the present appeals are whether the requests are open to challenge on the basis that (i) they were not the product of a judicial decision by a judicial authority within the terms of the Framework Decision and/or of Part 1 of the United Kingdom Extradition Act 2003, and (ii) the ministries making them did not have the function of issuing domestic arrest warrants and were incorrectly certified by SOCA under section 2(7) of the 2003 Act. If a challenge is open on either or both of these bases, the third question is (iii) whether the challenge is on the evidence well founded in the case of either or both of the Ministries. On 12 December 2012, the Divisional Court answered the first question affirmatively and the second negatively. As to the third, it concluded that a ministry of justice would, under European law, be regarded as a judicial authority for the purposes of issuing a conviction warrant if it was sufficiently independent of the executive for the purposes of making that judicial decision (para 98), and that, in this connection, the antecedent process, in the form of a request for the issue of a European arrest warrant coming from the court responsible for the conviction, was relevant. On the evidence before it, it held that the EAWs issued by the Lithuanian Ministry in respect of Mr Bucnys and Mr Sakalis were valid, while the EAW issued by the Estonian Ministry in respect of Mr Lavrov was invalid. Mr Bucnys and Mr Sakalis now appeal, while the Estonian Ministry appeals in the case of Mr Lavrov. During the appeal further evidence was adduced about the legal position and procedures in Lithuania and Estonia. Since the hearing, the Court has been informed by those instructed by Mr Bucnys that he has [regrettably] died. The issue remains of importance, and this judgment records the Courts conclusions on it. The Supreme Court unanimously holds that the arrest warrants issued for Mr Bucnys and Mr Lavrov were valid, whereas that issued for Mr Sakalis was not. Mr Bucnyss appeal is therefore dismissed. Mr Sakaliss appeal and the Estonian Ministrys appeal in Mr Lavrovs case are allowed. Whether a justice ministry can be a judicial authority Mr Bucnys, Mr Sakalis and Mr Lavrov submitted that the relevant ministries of justice could not be a judicial authority because they were not part of the courts or judiciary as ordinarily understood. The Supreme Court, in a judgment given by Lord Mance with which all other Justices agree, holds that member states were not intended to have carte blanche to define judicial authority however they choose. The concept is embedded in European Union law. The Framework Decision is based on article 31(1)(a) of the former Treaty of European Union, which itself distinguishes between ministries and judicial authorities [23]. The concept falls under EU law to be interpreted by looking at the instruments context and intended effects [45]. In the context of the Framework Decision, the most obvious purpose of insisting on the concept was to ensure objectivity (including freedom from political or executive influence) in decision making and to enhance confidence in a system which was going to lead to a new level of mutual cooperation including the surrender of member states own nationals to other member states [45]. An EAW issued by a ministry for a convicted person with a view to his or her surrender can be regarded as issued by a judicial authority if the ministry under the relevant national law issues the warrant at the request of, and by way of endorsement of a decision that the issue of such a warrant is appropriate made by, the court responsible for the sentence or by some other person or body properly regarded as a judicial authority responsible for its execution [66]. If this condition is satisfied, the existence of a discretion on the part of the ministry not to issue a EAW which the responsible court (or other judicial authority) has decided appropriate and requested it to issue does not affect this [66]. That could work only in favour of the person sought by the warrant and would be in the spirit of the Framework Decision [56]. In issuing the EAWs for the arrest of Mr Bucnys and Mr Lavrov, the respective ministries acted only at the request of and by way of endorsement of a decision made by a court responsible for the sentence. These two EAWs therefore satisfied the above test [66] and are valid. However, in issuing the EAW for Mr Sakaliss arrest, the Lithuanian ministry was acting only on a request from the prison service, and this EAW did not meet the above test and is invalid [67]. The certification of the requests Mr Bucnys, Mr Sakalis and Mr Lavrov also submitted that the terms of section 2(7) of the 2003 Act meant that a ministry of justice could be certified by SOCA only if it was responsible for issuing domestic arrest warrants rather than European ones. While that was not inconsistent with the bare language of the Act, such an interpretation would involve SOCA in onerous investigations of overseas practice and may have perverse results where, for example, the European warrants with which Part 1 is concerned were issued by a different, but more senior, judicial authority than the domestic ones [26 28]. The correct interpretation was that section 2(7) referred to the authority responsible for issuing European arrest warrants [33]. The warrants and certification were thus unobjectionable in that respect.
A special rule has been developed for cases brought by persons who contract mesothelioma after being wrongly exposed to asbestos, known as the Fairchild exception after the decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. This provides that defendants whose breaches of their duty of care materially increase the risk of mesothelioma are jointly and severally liable for the damage suffered if mesothelioma does in fact develop. The rule relaxes the usual requirement that a claimant must show that it is more likely than not that the harm he has suffered has been caused by the defendants breach, in order to reflect the fact that medical science cannot presently determine which asbestos fibre or fibres has caused the mesothelioma to develop, often decades later. The issue in these two appeals was whether this special rule applies in cases where only one defendant is proved to have exposed the victims to asbestos, but where the victims were also at risk of developing the disease from environmental exposure to asbestos in the general atmosphere. Mrs Karen Sienkiewicz is the daughter and administratrix of the estate of the late Mrs Enid Costello, who died of mesothelioma on 21 January 2006 at the age of 74. Mrs Costello had worked in an office at factory premises manufacturing steel drums for employers who were found to have wrongly exposed her to asbestos, although the level of that exposure was very light. This was calculated by the trial judge to have increased her total level of exposure, over the general environmental exposure, by 18%. Mr Barre Willmore is the husband and administrator of the estate of the late Dianne Willmore who died of mesothelioma on 15 October 2009 aged 49. She was found to have been exposed to asbestos at her secondary school. In Mrs Costellos case, the judge held that the Fairchild exception did not apply and that she had failed to establish that her occupational exposure to asbestos was the likely cause of her disease. This decision was reversed by the Court of Appeal, which entered judgment on liability with damages to be assessed. The judge in Mrs Willmores case applied the Fairchild exception and awarded her damages of 240,000. The Court of Appeal upheld his decision. The defendants in each case appealed to the Supreme Court, arguing that the Fairchild exception should have been held to be inapplicable when proceedings are directed against one defendant. They submitted that, in such cases, liability could only be established if a claimant could prove on the balance of probability that the mesothelioma was caused by the defendants exposure ie that such exposure had at least doubled the risk of the victim developing mesothelioma. The Supreme Court unanimously dismisses the appeals. It holds that the Fairchild exception applies to cases of mesothelioma involving a single defendant and that there is no requirement for a claimant to show that the defendants breach of duty doubled the risk of developing the disease. The main judgment is given by Lord Phillips, with each of the other justices adding shorter judgments concurring in the result. Numbers in square brackets below are to paragraphs in the judgment. Knowledge about mesothelioma is based in part on medical science and in part on statistical analysis or epidemiology. It is summarised at [19] and in the annex after [112]. Much remains still to be discovered. The courts may revert to the conventional causation test if advances in medical science in relation to this disease make such a step appropriate [70][142][208]. The decision in Fairchild was made in the context of claims against multiple employers who had each been found to be in breach of duty. It left open the question of whether the principle applied where other possible sources of injury were similar but lawful acts of someone else or a natural occurrence. In the subsequent case of Barker v Corus [2006] UKHL 20 the House of Lords answered this question by refining the exception so as to render each employer liable only for the proportion of damages which represented his contribution to the risk. Parliament then intervened to overturn this apportionment of damages, by providing in section 3 of the Compensation Act 2006 that where a person was liable under the common law in tort to a victim who had contracted mesothelioma, that liability was for the whole of the damage caused by the disease, jointly and severally with any other responsible person. Parliament has therefore legislated to impose draconian consequences on an employer or his insurers who has been responsible for only a small proportion of the overall exposure of a claimant to asbestos and the court had to have regard to this when considering the issues in these appeals [58][131][167][185]. The Fairchild exception did apply to single defendant cases [103][113]. The doubles the risk test for causation was therefore only potentially relevant in connection with the question of what constituted a material increase of risk. There was no justification for adopting the test as a benchmark for this. Whether exposure was too insignificant to be taken into account, having regard to the overall exposure, was a matter for the judge on the facts of the particular case [107 108]. Epidemiological evidence alone is not a satisfactory basis for making findings of causation. The exercise of comparing the statistical relationship between exposure and the incidence of the disease with the experience of the individual victim is particularly problematic in mesothelioma cases because of the very long latency of the disease [97 102][163][172] Accordingly the appeals must be dismissed. Even though the judge in Mrs Costellos case did not expressly consider whether the exposure in her case materially increased the risk, if he had thought it insignificant he would have said so [109]. In Mrs Willmores case, the challenges to the judges findings of fact also failed. The court considered that they had been very generous to Mrs Willmore but that it was not justified in taking the exceptional step of disturbing them [166]
These appeals concern the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, the deprivation must be authorised by a court or by the procedures known as the deprivation of liberty safeguards (DOLS) in the Mental Capacity Act 2005 (the Act) and subject to regular independent checks. P and Q (otherwise known as MIG and MEG) are sisters who became the subject of care proceedings in 2007 when they were respectively 16 and 15. Both have learning disabilities. MIG was placed with a foster mother to whom she was devoted and went to a further education unit daily. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG was moved from foster care to a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication. When the care proceedings were transferred to the Court of Protection in 2009, the judge held that these living arrangements were in the sisters best interests and did not amount to a deprivation of liberty. This finding was upheld by the Court of Appeal. P is an adult born with cerebral palsy and Downs syndrome who requires 24 hour care. Until he was 37 he lived with his mother but when her health deteriorated the local social services authority obtained orders from the Court of Protection that it was in Ps best interests to live in accommodation arranged by the authority. Since November 2009 he has lived in a staffed bungalow with other residents near his home and has one to one support to enable him to leave the house frequently for activities and visits. Intervention is sometimes required when he exhibits challenging behaviour. The judge held that these arrangements did deprive him of his liberty but that it was in Ps best interests for them to continue. The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities as P. The Supreme Court, unanimously in the appeal of P, and by a majority of 4 to 3 in the appeal of MIG and MEG, allows the appeals. MIG, MEG and P have all been deprived of their liberty. Lady Hale, with whom Lord Sumption agrees, gives the main judgment. Lord Neuberger agrees with Lady Hale in an additional judgment and Lord Kerr agrees with Lord Neuberger and Lady Hale, also in a separate judgment. Lord Carnwath and Lord Hodge give a joint judgment dissenting in the appeal of MIG and MEG. Lord Clarke agrees with them in an additional judgment. The DOLS were introduced into the Act following the case of HL v United Kingdom (2004) 40 EHRR 761, which found that the treatment of a severely mentally disabled adult after his informal admission to hospital amounted to a deprivation of his liberty by the hospital. Their purpose is to secure independent professional assessment of (a) whether the person concerned lacks the capacity to make his own decision about whether to be accommodated in the hospital or care home for care or treatment, and (b) whether it is in his best interests to be detained [8 9]. The European Court of Human Rights (ECtHR) has established general principles relating to the deprivation of liberty of people with mental disorders or disabilities, albeit that it has not yet had to decide a case involving, as here, a person without capacity, who appears content with their care placement, which is in a small group or domestic setting as close to home life as possible, and which has been initially authorised by a court [32]. The general principles make it clear that it is important not to confuse the question of the benevolent justification for the care arrangements with the concept of deprivation of liberty. Human rights have a universal character and physical liberty is the same for everyone, regardless of their disabilities [45]. What would be a deprivation of liberty for a non disabled person is also a deprivation for a disabled person [46]. The key feature is whether the person concerned is under continuous supervision and control and is not free to leave [49]. The persons compliance or lack of objection, the relative normality of the placement and the purpose behind it are all irrelevant to this objective question [50, 87]. It follows that in Ps case the judge applied the right test and his decision should be restored [51]. MIG and MEG were also both under continuous supervision and not free to leave the place where they lived. The deprivation of their liberty was the responsibility of the state and therefore different from similar constraints imposed by parents in the exercise of their ordinary parental responsibilities [54]. Accordingly the decisions of the courts below must set aside and a declaration made that their living arrangements constitute a deprivation of liberty within the meaning of s 64(5) of the Act. Periodic independent checks are needed for such vulnerable people to ensure that the arrangements remain in their best interests, although it is not necessary that the checks be as elaborate as those currently provided for in the Court of Protection or in the DOLS [57 58]. Lord Carnwath, Lord Hodge and Lord Clarke would have upheld the decision of the judge in both cases. They consider that the degree of intrusion is relevant to the concept of deprivation of liberty, and in the appellants cases the care regime is no more intrusive or confining than required for the protection and well being of the persons concerned [90]. The ECtHR has yet to decide a case of this kind and it is far from clear that it would adopt a universal test which disregarded any disabilities. It remains wedded to a case specific test [94]. They are concerned that nobody using ordinary language would describe persons living happily in a domestic setting, like MIG and MEG, as being deprived of their liberty [99].
This appeal concerns the meaning of prohibitively expensive under the Aarhus Convention. The proceedings concerned a cement works in Rugby. On 12 August 2003, the Environment Agency issued a permit to continue operations with an alteration in its fuel from coal and petroleum coke to shredded tyres. This proposal gave rise to a public campaign on environmental grounds. The public campaign was being led by Mrs Pallikaropolous who had committed substantial funds of her own to the campaign. Following the decision of the Rugby Borough Council not to pursue its own claim for judicial review, Mrs Pallikaropolous was reported as pledging to carry on the battle using legal aid and, because she was too rich to get legal aid, asked for someone to come forward to take the case under legal aid. A local resident, Mr David Edwards, began judicial review proceedings on 28 October 2003 challenging the Agencys decision. The judge inferred that Mr David Edwards had been put up as a claimant in order to secure public funding of the claim. The substantive application for judicial review was dismissed on 8 February 2006. Mr Edwards appealed to the Court of Appeal. On the final day of the Court of Appeal hearing, Mr Edwards withdrew his instructions from both solicitors and counsel. Mrs Pallikaropolous applied without objection to be joined as an additional appellant in the public interest to enable the appeal to be concluded. Her potential liability to costs in the Court of Appeal was capped at 2,000. Following dismissal of the appeal, the respondents costs capped at this level were awarded against her. Mrs Pallikaropolous was given leave to appeal by the House of Lords. She provided security for costs in the sum of 25,000 and the appeal proceeded. Her appeal was dismissed by the House of Lords. The present dispute arises out of the order for costs of the appeal in the House of Lords made in favour of the respondents. The Environment Agency and the Secretary of State submitted bills totally respectively 55,810 and 32,290. The Supreme Court made a reference to the Court of Justice of the European Union (CJEU) for guidance relating to the expression not prohibitively expensive. While the reference was pending, the government issued a consultation paper on the issue of cost capping and the scope for providing clearer guidance in the procedural rules. The proposals were given effect to by amendment to the Civil Procedure Rules. The Supreme Court makes an order for costs in the amount of 25,000 in favour of the respondents jointly. Lord Carnwath gives the lead judgment with which Lord Neuberger, Lord Hope, Lord Mance and Lord Clarke agree. The following points could be extracted from the CJEUs Edwards judgment: (i) The test is not purely subjective. The cost of proceedings must not exceed the financial resources of the person concerned nor appear to be objectively unreasonable, at least in certain cases. (ii) The court did not give definitive guidance as to how to assess what is objectively unreasonable. (iii) The court could take into account the merits of the case: that is whether the claimant has a reasonable prospect of success, the importance of what is at stake for the claimant and for the protection of the environment, the complexity of the relevant law and procedure, the potentially frivolous nature of the claim at its various stages. (4)That the claimant has not in fact been deterred for carrying on the proceedings is not itself determinative. (5) The same criteria are to be applied on appeal as at first instance [28]. The respondents are not now seeking recovery of their full costs. They have agreed to limit their joint claim to 25,000 which is the amount of security already paid by the appellant as the condition for bringing the appeal. It is impossible on the material available to hold that the order was subjectively unreasonable. The more difficult question is whether there should be some objectively determined lower limit, and if so how it should be assessed. Although this was one of the main issues raised by the reference, the European court has not offered a simple or straightforward answer [30 31]. Of the five factors mentioned by the court, the second and fifth can be discounted immediately. There is no evidence that the appellant had any economic interest of her own in the proceedings and, given the grant of permission at each stage, they could not be said to be frivolous [34]. The relative complexity of the case is evidenced by the fact that it took three days before the House [35]. The other two factors (i) the prospects of success and (iii) the importance of the case for the protection of the environment are at best neutral from the applicants point of view [36]. Taking factors mentioned by the court into account, it is impossible to say that the figure of 25,000, viewed objectively, is unreasonably high, either on its own or in conjunction with the 2,000 awarded in the Court of Appeal [37].
The European Union distributes money from European Structural Funds to Member States in order to promote the overall harmonious development of the EU and in particular to reduce disparities between the levels of development of the various regions and the backwardness of the least favoured regions (Article 174 TFEU). Funds are allocated in seven year cycles. The previous two rounds were for 2000 2006 and 2007 2013. The most recent round was for 2014 2020 and took place pursuant to Regulation (EU) 1303/2013 (the 2013 Regulation). Regions within Member States are classified based on the relationship between their GDP per head and the EU average, with different categories used in each round. The European Commission notionally allocates funds to Member States according to a formula based on how many regions in each category they have, but there is no formula setting out how allocations are to be made within Member States. That decision is jointly determined under a Partnership Agreement which must be proposed by the Member State and approved by the Commission. In the UK this is the responsibility of the Respondent, the Secretary of State for Business, Innovation and Skills. In 2000 2006, Merseyside and South Yorkshire were both Objective 1 regions, corresponding to the current less developed category, with a GDP per head less than 75% of the EU average. They received the most generous level of funding under the UKs Partnership Agreement. In 2007 2013, there were two principal categories, convergence regions (with a GDP per head less than 75% of the EU average), and competitiveness regions (with a GDP per head greater than 75% of the EU average). However, the EU average GDP per head decreased due to the accession of 10 new Member States. There were carved out of the category of competitiveness regions two special categories commonly referred to as phasing out and phasing in regions. Phasing out regions were regions which would have been convergence regions but moved above the 75% threshold as a result of the reduction of the EU average. Phasing in regions were regions which moved above the 75% threshold and would have done so in any event. Merseyside and South Yorkshire were both phasing in regions in 2007 2013. Highlands & Islands was a phasing out region. In order to ease the transition to the higher category and the consequent reduction of support, both phasing in and phasing out regions were eligible for additional support from the Commission on a transitional and specific basis. That support tapered down over the course of the seven year period to the national average level of support for competitiveness regions in 2013. In 2014 2020, Merseyside and South Yorkshire became transition regions, with a GDP per head between 75% and 90% of the EU average. The UK received 5% less money overall for 2014 2020 than it had for 2007 2013. The Secretary of State had to decide how to allocate it. First, he decided that each of the four countries comprising the UK would have its overall funding reduced by 5% compared with the previous period. Northern Ireland, a single region, therefore had its funding cut by 5% altogether. Second, he decided that each English transition region would receive an allocation per year for 2014 2020 representing an increase of 15.7% on its allocation for 2013, the last year of the previous period. For Merseyside and South Yorkshire, these decisions resulted in a 61% cut in funding altogether compared with the whole of the 2007 2013 period. This was because the new allocations were based on allocations for 2013, and therefore took no account of the transitional funding received in the earlier period. In Scotland, Highland & Islands had its funding cut by 5% altogether. This was the result of a decision made by the Secretary of State in consultation with the Scottish Ministers. The Commission has now approved the Secretary of States proposals. The Appellants say that Merseyside and South Yorkshire have unfairly been treated differently from: (i) the non English transition regions of Northern Ireland and Highland & Islands; and (ii) other English transition regions. Their arguments failed before Stewart J and in the Court of Appeal. They now appeal to the Supreme Court. The Court dismisses the appeal by a 4 3 majority (Lord Mance, Lord Carnwath and Lady Hale dissenting). Lord Sumption and Lord Neuberger both give reasoned judgments for the majority. Lord Hodge agrees with Lord Sumption and Lord Clarke agrees with both Lord Sumption and Lord Neuberger. Lord Mance and Lord Carnwath give dissenting judgments. Lady Hale agrees with Lord Mance and Lord Carnwath. The majority judgments Lord Sumption notes that the allocation made by the Secretary of State is amenable to judicial review, but a court should be cautious about intervening because it: (i) was a discretionary decision of a kind courts have traditionally been reluctant to disturb; (ii) involved particularly delicate questions about the distribution of finite domestic and EU resources, in which the legitimacy of the decision making process depends to a high degree on ministers political accountability; and (iii) has been approved by the Commission [21 24]. Lord Neuberger agrees that this is classic territory where executive decisions should be afforded a wide margin of discretion, but emphasises that the fact that a matter is one for democratic decision does not remove the need for judicial oversight [61 65]. Lord Sumption holds that the ultimate question for the court is whether there is enough of a relevant difference between Merseyside and South Yorkshire on the one hand and the remaining transition regions on the other to justify any difference in treatment [25 29]. Lord Neuberger analyses the Appellants objections as comprising two procedural attacks and two outcome attacks [52 60]. As to the first decision, to allocate to each of the UKs four countries 95% of what they had received for the previous period, Lord Sumption says that the Secretary of State did not unjustifiably discriminate. He was entitled to have regard to the constitutional settlement as between the component countries of the United Kingdom; nothing suggested that any countrys position had significantly changed since the last allocation; and a decision based on broad qualitative considerations rather than purely GDP per head is consistent with the 2013 Regulation [30 36]. Lord Neuberger agrees that it was procedurally legitimate for the Secretary of State to take into account the increasingly decentralised nature of UK administration and the political realities of devolution [75 78]. The disparities in outcome between Merseyside and South Yorkshire on the one hand and Highland & Islands and Northern Ireland on the other give pause for thought, but, bearing in mind the Secretary of States margin of discretion and the relevance of factors other than GDP per head, those disparities do not make the decision unlawful [87 99]. As to the second decision, to use 2013 as a baseline for the 2014 2020 allocations for English transition regions, Lord Sumption and Lord Neuberger both point out that the additional funding given to Merseyside and South Yorkshire in the previous period was transitional and specific and provided to smooth the passage to their being treated as competitiveness regions, so that basing the 2014 2020 allocations on their average allocations for the whole of 2007 2013 would have continued the impact of that funding beyond the period envisaged [37 44, 80 83]. For Lord Neuberger, there is force to the point that the use of the 2013 baseline deprives Merseyside and South Yorkshire of the uplift given to other northern regions, but this is outweighed by the discretionary and complex context and the legitimacy of the Secretary of States goals [84 85]. As a matter of outcome, he notes that other English transition regions received varying amounts unrelated to their GDP per head and that some allocations were less than or comparable to those of Merseyside and South Yorkshire [100 108]. Overall the Secretary of States approach is less considered and consultative than one would have hoped, but not unlawful [109 111]. The minority judgments Lord Mance and Lord Carnwath observe that the principle that a greater margin of discretion should be afforded where a decision is complex and judgment based does not exclude closer review of a decision which is based on irrelevant considerations or fails to treat like cases alike, particularly in light of the informality of the decision making process and (per Lord Mance) the lack of consultation in this case [142, 167]. Lord Mance explains that the combined effect of the two decisions was that Northern Ireland was guaranteed an allocation based on an assessment of its actual needs over the prior period, Highland & Islands received an allocation based on the average of its receipts as a transition region throughout the prior period, and the other English transition regions received allocations based on previous allocations calculated on the basis of each regions needs, including uplifts for northern regions. Merseyside and South Yorkshire, by contrast, received allocations without any uplift and not referable to any assessment of their actual needs or receipts over the prior period, even though by any measure they still fall well below the competitiveness region average [149 152]. The Secretary of States decision was unlawful because he took irrelevant considerations into account and treated like cases unalike and unlike cases alike [162]. Lord Carnwath agrees with Lord Mance [166]. He considers it illogical to deny to Merseyside and South Yorkshire the safety net protection given to Highland & Islands on the basis that it would lead to a 22% cut for the other English transition regions [180 186].
These three appeals each involve a challenge to an order for costs made by a High Court judge against a newspaper publisher following trial. Flood v Times Newspapers Limited (Flood) and Miller v Associated Newspapers Ltd (Miller) each involved an allegation that the newspaper had libelled the claimant, and Frost and others v MGN Ltd (Frost) involved allegations that the newspaper had unlawfully gathered private information about the claimants by hacking in to their phone messages. In each case, the newspaper publisher lost at trial and was ordered to pay the claimants costs. The claimants had each taken advantage of the costs regime introduced by the Access to Justice Act 1999 and reflected in the Civil Procedure Rules then in force, in particular Rule 44, (the 1999 Act regime). This regime enabled: (i) the claimants lawyers to agree under a conditional fee agreement (a CFA) to be paid nothing if the claim failed but to receive up to twice their normal fee if it succeeded; and/or (ii) the claimant to take out after the event (ATE) insurance against the risk of having to pay the defendants costs (with the insurer only being paid if the claim succeeded); and (iii) the claimant being able to recover from the defendant the success fee payable under the CFA, and the ATE insurance premium, if his claim succeeded. Following widespread criticism, the regime has now largely been replaced for claims commenced after 1st April 2013 by the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but not for defamation or privacy claims. A public consultation as to whether s.40 of the Crime and Courts Act 2013, which would introduce a new scheme for costs recovery for privacy and defamation claims against newspapers, has been launched. In Flood, Times Newspapers Limited (TNL) had defeated Mr Floods defamation claim in relation to hard copies of the publication, but had failed in relation to the electronic version, which they had failed to take down when they should have done. Nicola Davies J awarded Mr Flood damages of 60,000 and ordered TNL to pay all Mr Floods costs of the proceedings (including success fees and ATE premium), and this was upheld by the Court of Appeal. In Miller, Associated Newspapers Limited (ANL)s defence was rejected by Sharp J, and Mitting J subsequently concluded that he was bound by the decision of the House of Lords in Campbell v MGN Ltd (No 2) to hold that recovery of the success fee and ATE premium did not infringe ANLs Article 10 rights and ordered that ANL should reimburse Mr Miller his costs. In Frost, having found for the claimants, Mann J ordered MGN to pay their costs, including reasonable success fees and ATE premiums which they had incurred, as determined by the Costs Judge, and this was upheld by the Court of Appeal. The newspaper publishers appealed to the Supreme Court. In each appeal, the newspaper publisher relies upon the decision of the European Court of Human Rights in MGN Ltd v United Kingdom (MGN v UK), where the Court held, contrary to the decision of the House of Lords in Campbell v MGN Ltd (No2), that MGNs right to freedom of expression under Article 10 of the European Convention on Human Rights was infringed by the order to reimburse the success fee and ATE premium incurred by the claimant. The newspaper publishers now contend that the costs orders in the present appeals similarly infringe their rights under Article 10. In Flood, TNL also contend that, given their partial success, the costs order was so unreasonable as to be outside the ambit of the trial judges discretionary powers. The Supreme Court unanimously dismisses the newspaper publishers appeals. Lord Neuberger gives the lead judgment, with which the other Justices agree. The reasoning of the Strasbourg court in MGN v UK was full, careful and largely soundly based, and reflected widespread criticism of the 1999 Act regime which has led to significant changes [32 and 41]. However, as the UK Government is not a party to these appeals, it would be inappropriate to express a concluded view as to whether there is a general rule of domestic law that it would normally infringe a newspaper publishers rights under Article 10 to require it to reimburse the claimants success fee and ATE premium in a defamation or privacy case, unless it was necessary so to decide, and it is not [29]. It would be similarly inappropriate to grant a declaration of incompatibility of legislation containing the 1999 Act regime or the statutes which supersede it [64]. Assuming that there is such a general rule, to deny the claimants in Miller and Flood the ability to recover the success fee and ATE premium which they had incurred would infringe their rights under Article 1 of the First Protocol to the Convention. They had incurred financial obligations in reliance on a statute and had a legitimate expectation that the statute would not be retrospectively repealed or otherwise invalidated to their detriment [46 48]. It may be that the claimants Article 6 and 8 rights would also thereby be infringed as the regime aimed to enable access to the courts, and the present proceedings were brought to restore personal dignity [49 52]. Even if upholding the costs order in Miller and Flood would infringe the newspaper publishers article 10 rights for the reasons given in MGN v UK, the fundamental principle that citizens are entitled to assume that the law will not change retroactively would be directly infringed by the order sought. Freedom of expression is also a fundamental principle, but one which is less centrally engaged by the issue in this case: the infringement of the newspaper publishers rights is based on an indirect chilling effect [53]. The just and appropriate order under section 8(1) of the Human Rights Act is therefore to dismiss the appeals, as to allow them would be a graver infringement of the claimants rights than the infringement which the newspaper publishers will suffer if the appeals are dismissed [53 54]. In the appeal in Frost, such a rule could in any event have no proper application to facts. The information was obtained illegally and there could have been no real expectation that its publication would be in the public interest. The Article 10 rights of the newspaper publishers have greatly reduced weight in this context as compared with those of MGN in MGN v UK [58 63]. The trial judge in Flood was correct to start with the proposition that, prima facie, Mr Flood was the winner and ought to receive his costs [67]. In considering whether to alter this, the judge was entitled to regard TNLs aggressive and unconstructive attitude in correspondence as militating against departure [70 71], and to find that the costs of TNLs defence would have been incurred even if Mr Flood had conceded the part of his claim that was eventually unsuccessful [73]. The weight to be given to the fact that Mr Flood was only partially successful was a matter for the first instance judge, as was the decision to award costs on the basis that he was the overall winner rather than making an issues based order [74].
H is a three year old child whose parents separated before his birth. From the date of his birth until very recently, H has lived with his maternal grandmother, GB. Hs mother, GLB, lived with her mother and H intermittently at GBs home from the time he was born until July 2006. She left GBs home then and has not returned. In November 2006, GB was granted, by consent, a residence order in respect of H. On the same occasion orders for contact were made in favour of Hs father, RJB. In May 2008, RJB applied for a residence order in respect of H. By the time the application was heard in the Family Proceedings Court in March 2009, RJB had married and his new wife was expecting their child. RJBs application, which was supported by Hs mother, was refused. In making their decision, the justices noted that they had not found compelling reasons to disrupt the continuity of care that GB provided H. RJB appealed the justices decision. That appeal was successful in the High Court, the judge finding that the justices had been plainly wrong in making the residence order in favour of GB, having been distracted by the settled way in which H had been brought up by GB. In April 2009, the High Court made an order that H should reside with RJB. The order of the High Court was appealed by GB in the Court of Appeal. The Court of Appeal dismissed the appeal holding that in giving disproportionate weight to the status quo the justices had made an error of law sufficient to entitle the circuit judge to overrule their decision. Applying Re G (Children) (Residence: Same Sex Partner) [2006] 1 WLR 2305, and in particular the observations in that case of Lord Nicholls, the Court of Appeal held that although a childs welfare was the courts paramount consideration, the court should always bear in mind that, ordinarily, the rearing of a child by his biological parent could be expected to be in his best interests. The Supreme Court unanimously allowed the appeal by GB. In doing so, it reaffirmed the central message in Re G that, where in a case between private individuals a childs custody or upbringing is in question, the welfare of the child is the paramount consideration. The judgment delivered by Lord Kerr was the judgment of the court to which all of its members contributed. A childs welfare is the paramount consideration in the determination of the question of his or her residence. (Paragraphs [18] [19], [32] [37]) The justices decision was not plainly wrong. They had recognised that Hs welfare was the paramount consideration and had carefully evaluated the evidence before them, correctly weighing up the various competing factors. For this reason, both the judge and the Court of Appeal had erred in overturning the justices decision. (Paragraphs [9] [15], [37] [39]) Both the judge and the Court of Appeal misinterpreted Re G. When, in that case, Lord Nicholls said that courts should keep in mind that the interests of a child will normally be best served by being reared by his or her biological parent, he was doing no more than reflecting common experience that, in general, children tend to thrive when brought up by parents to whom they have been born. All consideration of the importance of parenthood in private law disputes about residence must be firmly rooted in an examination of what is in the childs best interests. This is the paramount consideration. It is only as a contributor to the childs welfare that parenthood assumes any significance. In common with all other factors bearing on what is in the best interests of the child, it must be examined for its potential to fulfil that aim. (Paragraphs [1], [17], [23] [25], [32] [37]) Any discussion of a childs right to be brought up by its natural parents is misplaced. The only consideration for the court is the childs welfare; to talk of a childs rights detracts from that consideration. (Paragraphs [18] [19]) In this case, there was reason to believe that if Hs bond with GB were broken his current stability would be threatened. Whilst RJB was assessed as capable of meeting Hs needs, he had recently undergone significant changes in his own domestic position and his arrangements were untested at the time the justices made their decision. In deciding where Hs best interests lay the justices were therefore right to give significant weight to maintaining the status quo in Hs living arrangements. (Paragraphs [40] [41])
These appeals concern refusals of leave to remain. Mr Patel and his wife, Mrs Patel (the Patels), arrived from India in the UK on 24 March 2009. Mr Patel had been granted leave to enter as a working holiday maker until 6 March 2011, and Mrs Patel had been granted leave as his dependant wife. Their only child was born here in 2010. On 26 February 2011, the Patels applied for further leave to remain, relying on article 8 (right to respect for family and private life) of the European Convention on Human Rights (the Convention), and rule 395C of the Immigration Rules (the rules). Their application was refused by the Secretary of State on 30 March 2011. That refusal was neither combined with, nor followed by, a decision to remove the family from the UK. The Patels argued that the Secretary of States failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. This argument was unsuccessful in both the Upper Tribunal and the Court of Appeal. Mr Alam, a Bangladeshi citizen, entered the UK on 26 August 2007 as a Tier 4 student with leave to remain until 12 April 2011. On 1 April 2011 he applied for leave to remain to continue his studies, and on 20 April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation. The bank statements submitted with his application were more than a month old and therefore did not show the necessary level of funds for a consecutive period ending no more than one month before the application. Mr Alam produced the appropriate bank statements by the First tier tribunal hearing, at which it was held that, whilst this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act, which had come into effect between the date of his appeal and the date of his hearing), this material could be taken into account in the appeal under article 8 of the Convention. The tribunal concluded that, since Mr Alam met the requirements of the rules, it would be disproportionate to refuse his application. The Upper Tribunal reversed this decision, holding that Mr Alams article 8 rights were not sufficiently strong to make his removal disproportionate. Mr Anwar, a Pakistani citizen, entered the UK on 26 February 2010 with leave to remain as a student until 1 April 2011. He applied to extend his leave as a Tier 4 student to enable him to complete his course. This application was supported by a Confirmation of Acceptance for Studies (CAS). On 10 May 2011 the Secretary of State refused the application because it had not included a document referred to in the CAS. On his appeal to the First tier Tribunal Mr Anwar produced the relevant document. The First tier Tribunal allowed his appeal, but this decision was set aside by the Upper Tribunal. Although there was a reference to the Convention in the grounds of appeal to the First tier Tribunal, no separate appeal on human rights grounds was pursued at the hearing before either tribunal. The Court of Appeal heard the appeals of Mr Alam and Mr Anwar together and dismissed them both. The Supreme Court unanimously dismisses all three appeals. Lord Carnwath, with whom the rest of the Court agrees, gives the majority judgment. In the Patel appeal the Court holds that the Secretary of State was under no duty to issue removal directions at the time of the decision to refuse leave to remain, and that the actual decision was not invalidated by her failure to do so. In the Alam and Anwar appeals, although the First tier tribunal was obliged under section 120 of the 2002 Act to consider the new evidence filed, this evidence did not significantly improve their respective cases under article 8 of the Convention. The sole issue in the Patel appeal relates to the segregation of the decision to refuse leave to remain from the decision to direct removal. The Patels argued, relying on the Court of Appeal decisions in Mirza [2011] Imm AR 484 and Sapkota [2012] Imm AR 254, that the failure to issue such a direction was not only unlawful in itself, but also undermined the validity of the previous decision to refuse leave to remain [25 26]. The Court agrees with the Court of Appeals reasons for not following the decisions in Mirza and Sapkota. Neither section 10 of the 1999 Immigration and Asylum Act nor section 47 of the Immigration, Asylum and Nationality Act 2006, which define the Secretary of States powers of removal, can be read as imposing an obligation to make a direction in any particular case, still less as providing any link between failure to do so and the validity of a previous immigration decision [27]. The Secretary of State was under no duty in the Patels case to issue removal directions at the time of the decision to refuse leave to remain, and the actual decision was not invalidated by failure to do so. Insofar as the decisions of the Court of Appeal in Mirza and Sapkota indicate the contrary, they were wrongly decided [30]. The Alam and Anwar appeals raise the issue of whether the statements and evidence filed by Mr Alam and Mr Anwar to the First tier Tribunal amounted to additional grounds under section 120 of the 2002 Act, which the First tier Tribunal was obliged to consider and determine notwithstanding the bar in section 85A of that Act [10]. Whether the evidence before the tribunal in support of a putative appeal against the refusal of leave to remain can be taken on human rights grounds depends on two propositions: that the tribunal was obliged to consider the new evidence in that context, and secondly, that, if it had done so, the evidence that the rules could have been complied with would significantly improve the human rights case under article 8 [33]. In Mr Anwars case no separate human rights grounds were advanced on his behalf before either tribunal and so the issue as to whether the tribunal would have been obliged to consider them, and if so to what effect, does not arise [58]. On the first proposition, the Court holds (agreeing with the majority in AS(Afghanistan) v Secretary of State [2011] 1 WLR 385) that section 85(2) of the 2002 Act imposes a duty on the tribunal to consider any potential ground of appeal raised in response to a section 120 notice, even if it does not directly relate to the issues considered by the Secretary of State in the original decision [34 44]. On the second proposition, in Mr Alams case the human rights case was considered but failed before the Upper Tribunal. Some weight was given to the circumstances in which he lost his ability to rely on the new evidence, but against this there was only the time he had spent in this country as a student under the rules. It would be surprising if that status, derived entirely from the rules, was sufficient in itself to add weight to a case for favourable treatment outside the rules. The Court holds that there was no error in the Upper Tribunals approach [59].
This appeal raises the question of which immigration rules apply to family members seeking entry to the United Kingdom, where the sponsor has been granted asylum and consequently obtained British Citizenship. The Appellants are the wife and children of Israr Naimi (the Sponsor). The Sponsor came to the UK from Pakistan in 1999 and in December 2001 was granted refugee status and indefinite leave to remain. On 22 March 2005, the Sponsor was granted British citizenship. On 15 October 2005, the Appellants, who had remained in Pakistan, applied for entry clearance to join the Sponsor in the UK. The Appellants applications were considered under the Immigration Rules, House of Commons Paper 395 (the Rules). Para 281 of the Rules applies to spouses and civil partners of UK citizens and para 297 to children of UK citizens. Those paragraphs require the family of a UK citizen to meet certain accommodation and maintenance requirements before entry clearance is granted. By contrast, spouses and children of refugees who have been granted asylum in the UK may apply for entry clearance under paras 352A and 352D respectively, which do not require them to meet any accommodation or maintenance conditions. In making the applications for entry clearance, the Appellants also relied on their rights to respect for family life protected by Article 8 of the European Convention of Human Rights. The Appellants applications for entry clearance were refused on the grounds that the family could not meet the accommodation and maintenance requirements imposed by paras 281 and 297 of the Rules. The Appellants Article 8 arguments were also rejected. The Appellants appealed the decision, arguing that their cases should be considered under paras 352A and 352D. The Respondents case is that the exceptions granted to the family members of people granted asylum do not apply to the Appellants as the Sponsor had been granted British citizenship before their applications for entry clearance were made. The Respondent argued that the Appellants applications fell to be considered under paras 281 and 297 and that they must therefore satisfy the ordinary rules dealing with applications by family members of UK citizens. The Court of Appeal held that paras 352A and para 352D only applied in cases where the sponsor was currently recognised as a refugee. A refugee who thereafter obtained the citizenship of his host country lost his refugee status. In relation to the Article 8 claim, there was no interference with those rights as the Sponsor was free to return to Pakistan where the family as a whole could continue their family life. The Article 8 arguments having become academic in the meantime, the essential questions for the Supreme Court to consider were the proper construction of paras 352A and 352D of the Rules and whether those paragraphs apply to family members seeking entry to the UK where their sponsor has been recognised as a refugee but has become a British citizen before the date of the application for entry clearance. The Supreme Court unanimously allows the appeal of the first to the fifth appellants. The Court holds that paragraph 352A applied to the first appellant (the Sponsors wife) as a spouse of a refugee and paragraph 352D applied to the second to fifth appellants (the Sponsors children who were under the age of 18 at the relevant time) as children of a refugee. Lord Clarke delivered the judgment of the Court. In construing the Rules, the Court agrees with the Court of Appeal that the sponsor must have been granted asylum in order to be (1) a refugee within the meaning of the opening words of para 352A and of para 352E; (2) a person granted asylum within sub paras (i) and (ii) of para 352A and sub para (iv) of para 352D; and (3) a person who has been granted asylum within the opening words of para 352D. However, the Court does not agree with the Court of Appeal that there is an additional requirement, namely that the person granted asylum or the person who has been granted asylum must not have become a British citizen before the application for entry clearance is made. The Rules contain no express language to that effect and it is not implicit in the language used. The fact that British citizenship has been granted to the sponsor does not change the fact that the sponsor is a person who has been granted asylum (paras [31] [33], [36], [37]). In the light of the decision made at the hearing on the construction of paragraphs 352A and 352D, the Court did not hear oral submissions on any of the other issues raised in the written cases. In particular, the Court did not hear argument on what the position would be if, contrary to the Courts conclusion, paragraphs 352A and 352D would only have applied if they required that the sponsor remain a refugee after being granted British citizenship. The Court expresses no view upon these questions one way or the other (para [40]). Accordingly, the appeals of the first to fifth appellants are allowed.
The issue in this appeal is whether and in what circumstances a judge who has announced her decision in civil or family proceedings is entitled to change her mind. It arose in this case in care proceedings in a family court. The proceedings concern a child (S) and her half brother (T). Care proceedings were commenced in respect of both children after S was taken to hospital with serious injuries. A fact finding hearing was ordered to determine whether Ss injuries were non accidental and, if so, the identity of the perpetrator. The hearings lasted over several days, spread over several months because of the mothers mental health. It became common ground that the injuries were non accidental and the only possible perpetrators were the mother and father. On 15 December 2011 the judge, Judge Penna, gave a short oral judgment (the December judgment) finding that the father was the perpetrator and she invited submissions if the parties wanted further detail. She gave directions for the filing of expert evidence before a final hearing provisionally booked for 20 February 2012. Her order was not in fact formally sealed by the court until 28 February 2012. Before that, on 15 February 2012, the judge delivered a written perfected judgment (the February judgment) which reached a different conclusion from her oral judgment, holding that she was unable to determine whether it was the mother or the father who had caused the injuries to section As a result, she proposed to give directions for an assessment of the father as a carer for S at the next hearing. The mother was granted permission to appeal against the February judgment. The Court of Appeal by a majority allowed her appeal, quashed the February judgment and ordered that the findings of the December judgment as to the perpetration of the injuries to S should stand. The father brought an appeal to the Supreme Court with the support of the local authority, the childrens guardian, and their maternal grandparents (with whom T had been residing). The Supreme Court unanimously allows the appeal. It gave its decision to the parties at the conclusion of the oral hearing of the appeal on 21 January 2013 and now provides its written judgment. This is given by Lady Hale, with whom all the Justices agree. The Supreme Court restores the February judgment and the welfare hearing has already proceeded on the basis of the findings in that judgment. It has long been the law that a judge is entitled to reverse his decision at any time before his order is drawn up and perfected. In the absence of express power to vary or discharge his own orders, any general power for a judge to review his order once perfected was abolished by the Judicature Acts 1873 and 1875 but the power to reconsider the matter before an order was perfected survived [17 18]. Thus until the December order was sealed, the judge in this case did have the power to change her mind and the question for the appeal court was whether she should have exercised it [19]. The overriding objective in the exercise of this power must be to deal with the case justly. Contrary to the practice previously adopted, it is not reserved for exceptional circumstances and would in every case depend on its particular facts. It would be relevant whether any party has acted upon the decision to his detriment especially in a case where it was expected that they may do so before the order is formally drawn up [27]. In this case, the parties had not irretrievably changed their position as a result of the December judgment. Ss placement had yet to be decided and she remained where she was for the time being. Finality was important but here a final decision had yet to be taken. No judge should be required to decide the future placement of a child upon what he or she believes to be a false basis [29]. The judge had heard very full submissions on the evidence and it was not necessary to invite further submissions before changing her findings in this particular case [30]. If, unlike the facts of this case, the order had already been sealed by the time the judge changed her mind, what would be the position? In care proceedings the fact finding hearing is merely part of the whole process of trying the case [34]. During that process the judge must be able to keep an open mind until the final decision has been made, at least if fresh evidence or further developments indicate that an earlier decision was wrong. It would be detrimental to the interests of all concerned and particularly the children if the only way to correct such an error were by an appeal [35]. The Civil Procedure Rules and the Family Procedure Rules make it clear that the courts wide case management powers include the power to vary or revoke previous case management orders, and the issue was whether it was proper to vary an order, rather than whether that order had been sealed [37]. The power had to be exercised judicially and not capriciously and in accordance with the overriding objective [38]. However, if the later development was simply a judicial change of mind, the arguments were finely balanced. Children cases may be different from other civil proceedings because the consequences were so momentous for the child and for the whole family. The court had to get it right for the child [41]. On the other hand, the purpose of the fact finding hearing was to create a platform of established facts which would be undermined, throwing the later hearings into disarray, if a judge could be urged to change his mind and in effect hear an appeal against himself [44]. As the point did not arise in this case, the court declined to express a view [45]. The Supreme Court reflected that the problem which arose in these proceedings would have been avoided by having a full and reasoned judgment from the judge in the first place, which would have identified the reasons for her initial conclusion that the father had been the perpetrator, and from which the father could have appealed. That would have avoided the situation here, where the findings against the father were restored without his having an opportunity for a proper appeal [46].
The issue on this appeal was whether the insurers of a ship were entitled to repudiate liability on the ground that the insured had told a lie in presenting the claim, if the lie proved to be irrelevant to the insurers liability. The vessel DC MERWESTONE was incapacitated by a flood in her engine room. Her main engine was damaged beyond repair. The flood was caused by (i) the crews negligence in failing to close the sea inlet valve in the emergency fire pumps, (ii) damage to the pumps, (iii) the negligence of previous contractors who had failed to seal bulkheads and (iv) defects in the engine room pumping system. The appellant owners presented an insurance claim to the respondent insurers for 3,241,310.60. They told the insurers solicitors that the crew had informed them that the bilge alarm had sounded at noon that day, but could not be investigated because the vessel was rolling in heavy weather. This was a lie told by the owners to strengthen the claim, accelerate payment under the policy, and take the focus off any defects in the vessel for which the owners might have been responsible. The lie was in fact irrelevant to the claim, since the vessels loss was found to have been caused by a peril of the seas. But the judge held that the owners lie was a fraudulent device, which meant the insurers did not have to pay out under the policy. The Court of Appeal agreed. The Supreme Court allows Versloot Dredgings appeal by a majority of 4 to 1, holding that the fraudulent device rule does not apply to collateral lies, which are immaterial to the insureds right to recover. Lord Sumption gives the lead judgment. Lord Clarke, Lord Hughes and Lord Toulson give concurring judgments. Lord Mance gives a dissenting judgment. The common law has long prohibited recovery from an insurer where the insureds claim has been fabricated or dishonestly exaggerated (the fraudulent claims rule). The purpose of the rule is to deter fraud. This appeal concerns the more recent extension of that rule to fraudulent devices, i.e. collateral lies told by the insured to embellish their claim, but which are irrelevant because the claim is justified whether the statement was true or false [1,9]. The fraudulent claims rule does not apply to collateral lies. The dishonest lie is typically immaterial and irrelevant to the honest claim: the insured gains nothing by telling it, and the insurer loses nothing if it meets a liability that it has always had [23 26]. If a collateral lie is to preclude the claim, it must be material. The real test of materiality is that a collateral lie told in the course of making a claim must at least go to the recoverability of the claim on the true facts as found by the court [35 36]. The test is not, as suggested by Mance LJ in The Aegeon [2003] QB 556 and the Court of Appeal and Lord Mance in this case, an attenuated test of materiality requiring that the prospects of the claim should apparently be improved, given the facts known at the time of the lie [18 22, 31]. Lord Clarke concurs, adding that public policy requires that the collateral lie be irrelevant to the insureds claim, and that it would make little sense to support a rule that bars claims involving collateral lies uttered before proceedings are begun, and not afterwards [39 49]. Lord Hughes agrees, pointing out that this extension of the important fraudulent claims rule has been left open by the Insurance Act 2015. The forfeiture of the entire claim is not a proportionate sanction for the teller of a collateral lie, who will suffer in other ways if his lie is discovered [65 104]. Lord Toulson, concurring, concludes that this outcome is just and appropriate [105 110]. In a dissenting judgment, Lord Mance would have dismissed the appeal, upholding the principle set out in The Aegeon, but modifying it so as to require a heightened threshold test of materiality of a significant improvement of the insureds prospects at the time of the lie (rather than retrospectively at the time that the court determines the facts), in order to bar the insureds claim [111 134].
The Appellant is a national of Eritrea. But she was born in Ethiopia on 2 July 1981, where she lived continuously until she departed for the United Kingdom in July 1998. On arrival, she claimed protection as a refugee on the grounds of a fear of persecution in Eritrea. She also claimed that she could not go back to Ethiopia because her life would be in danger there. The Secretary of State granted her temporary admission under paragraph 21 of Schedule 2 to the Immigration Act 1971 (the 1971 Act). Her status has not changed since her arrival in 1998. Her temporary admission has been extended from time to time, and she remains liable to detention under paragraph 16 of Schedule 2 to the 1971 Act. Her claim that she was a refugee was refused by the Secretary of State on 1 November 2004, and she was informed that the Secretary of State proposed to give directions for her removal to Eritrea. The Appellant appealed. By a decision of 1 February 2006, the Asylum and Immigration Tribunal allowed her appeal and held that her fear of persecution in Eritrea on Refugee Convention grounds was well founded. Her status as a refugee was thereby established. The Secretary of State did not appeal against this decision. On 24 August 2006 the Secretary of State served a new notice of decision refusing the Appellants application for leave to enter on the grounds of a fear of persecution in Ethiopia and gave notice of her intention to give directions for the removal of the Appellant to Ethiopia. The Appellant appealed these decisions, but at the same time started judicial review proceedings seeking an order that she be given leave to enter/remain in the UK as a refugee pursuant to the tribunals decision of 1 February 2006 and an order quashing the removal directions to Ethiopia. The appeal has been adjourned pending the outcome of these judicial review proceedings. The judge in the Administrative Court granted the relief sought, but her decision was reversed by the Court of Appeal. The appellant now appeals to this court, arguing that she is entitled to protection under article 32 of the Refugee Convention and cannot therefore be removed to Ethiopia. The Supreme Court unanimously dismisses the appeal. The judgments are given by Lord Hope and Lord Dyson. Article 33 of the 1951 Refugee Convention prohibits any contracting state from expelling or returning (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Every refugee has the protection of that provision. The more generous protection of Article 32, however, is afforded to a more restricted category of persons. Article 32(1) provides that The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. The effect of this is that, once a refugee has been admitted or his presence has been legalised and so long as he retains his status as a refugee, he is entitled to stay indefinitely in the receiving state. He can only forfeit that right by becoming a risk to national security or by disturbing the public order. The question in this case is whether Article 32 applies only to a refugee who has been given the right under domestic law lawfully to stay in the contracting state, or whether the words lawfully present in the territory must be given an extended and autonomous meaning, so that a refugee who has not yet been given a right to remain in the territory is afforded protection under Article 32 that extends beyond the basic obligation under Article 33 not to expel or return to a territory where his life or freedom would be threatened for a Convention reason [1 2]. The first step in this case is to examine the language of Article 32 and to determine, provisionally, whether the words that it uses, taken by themselves, can accommodate the situation in which the Appellant finds herself. The second is to consider whether, if they cannot, the object and purpose of the Convention require the words to be read and given effect more broadly so as to afford the Appellant the protection which she seeks against her removal to Ethiopia [26]. There is some academic support for the Appellants argument that the class of beneficiary referred to in Article 32 should be broadly interpreted, but this approach is not universally accepted, and there is no judicial authority that is directly in point. The argument has to be examined, therefore, as raising an issue of principle [28]. There is no doubt that the Convention should be given a generous and purposive interpretation [30]. However, it must be remembered that the Courts task is to interpret the document to which the contracting parties have committed themselves by their agreement. It has no warrant to give effect to what they might, or in an ideal world would, have agreed [31]. The context in which the word lawfully appears in Article 32 is important. The phrase in which it appears contemplates that the refugee is not merely present in the territory of the contracting state, but that he is there lawfully. It implies that his presence is not just being tolerated, but he has a right to be there [32]. There is no consensus among the commentators that lawful presence should be given an autonomous meaning or what that meaning should be. We must therefore take our guidance from what the framers of the Convention must be taken to have agreed to, as understood by the UN High Commissioner for Refugees [34 & 63]. That is, that the lawfulness of the stay is to be judged against national rules and regulations governing such a stay [33]. In this case, the relevant national rule is section 11(1) of the 1971 Act, which provides that a person who has not otherwise entered the UK shall be deemed not to do so as long as he is detained, or temporarily admitted or released while liable to detention, under the powers conferred by Schedule 2 to the Act. Under that provision, the Appellant is deemed not to have entered this country [34 & 57]. There is no question of the Appellant being expelled from the UK while the statutory processes of appeal remain open to her and have not been brought to an end. But one should be cautious about saying that, just because in practice the Appellant is not at risk of removal for the time being, she is here lawfully within the meaning of Article 32, as that would have far reaching consequences [35]. Furthermore, the same phrase lawfully in their territory is used in Articles 18 and 26 in relation to self employment and free movement [36]. It seems unlikely that the contracting states would have agreed to grant to refugees the freedom to choose their place of residence and to move freely within their territory before they themselves had decided, according to their own domestic laws, whether or not to admit them to the territory in the first place [37 & 57]. For these reasons, the word lawfully in Article 32(1) must be taken to refer to what is to be treated as lawful according to the domestic laws of the contracting state [40]. This interpretation is consistent with the fundamental principle that the power to admit and expel foreign nationals is a power of the sovereign state [58]. Counsel for the Appellant submitted that, in view of the fact that the UK had recognised her as a refugee, the Appellant was entitled to the assurance that she would not be removed to a third country that was not able to provide her with the full panoply of rights she would get as a refugee under the Convention. Article 32(1) had to be read in that sense [41 42]. However, whether a refugee would have the benefit of the panoply of Convention rights in a territory to which she is expelled cannot have any bearing on the question whether she is lawfully present in the territory from which she is being expelled. This would be to infer a different meaning from the words lawfully in their territory than the contracting states appear to have had in mind when they agreed to them [47 & 64]. There are thus no sound grounds for departing from the view that lawfully in Article 32(1) must be taken to refer to what is to be treated as lawful according to the domestic laws of the contracting state. This is what the framers of the Convention intended by the use of this word in this context [49].
This appeal is about the burden of proof in actions against a shipowner for loss of or damage to cargo. The six claimants, the appellants, were the owners and holders of the bills of lading for nine separate consignments of bagged Colombian green coffee beans. Those coffee beans were shipped from Colombia between 14 January and 6 April 2012 on various vessels owned by the defendant shipowners, the respondents, to Bremen in Germany. They were stowed in a total of 20 unventilated 20 foot containers (as specified by the cargo owners for these consignments), transhipped in Panama and discharged at Rotterdam, Hamburg or Bremerhaven for oncarriage to Bremen. The bill of lading for each consignment covered the entire carriage. Bagged coffee beans may be and commonly are carried in either ventilated or unventilated containers. Unventilated containers were specified by the shippers of these cargoes. They are, however, hygroscopic, so that if carried in unventilated containers from warmer to cooler climates, they are likely to emit moisture which condenses against the roof and sides of the containers. To prevent this from causing moisture damage to the cargo, it was common commercial practice in 2012 to line the containers with an absorbent material such as Kraft paper. Each bill of lading was governed by English law and subject to English jurisdiction. They each also incorporated the Hague Rules of 1924 and LCG/FCL (less than full container load/full container load) terms applied. This means that the carrier was contractually responsible for preparing the containers for carriage and loading the bags of coffee into them. On outturn at Bremen, condensation damage to the coffee beans was found in 18 out of the 20 containers. The cargo owners brought a claim against the carriers for breach of their duties as bailees to deliver the cargoes in the condition recorded on the bill of lading and, alternatively, breach of article III, rule 2 of the Hague Rules for failure to properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried. They alleged negligence by the carriers for failing to use adequate or sufficient Kraft paper. The carriers pleaded inherent vice on the ground that the coffee beans were unable to withstand the ordinary levels of condensation forming on such a voyage. In reply, the cargo owners pleaded that any inherent characteristic only led to damage because of the carriers negligence. The judge, David Donaldson QC, held that there was no legal burden on the carrier to prove that the damage to the cargo was caused without negligence or due to an inherent vice, only a factual presumption of negligent damage. He found that: (i) the evidence did not establish what weight or how many layers of paper were used and (ii) there was no evidence, or generally accepted commercial practice, as to what thickness of paper should be used. The Court of Appeal disturbed the factual findings as to commercial practice and the lack of evidence on the number of layers of lining paper in the containers, dismissing the claim by the cargo owners. The questions on appeal to the Supreme Court were: (i) whether the cargo owners (as claimants) bear the legal burden under article III.2 of the Hague Rules and (ii) how, if at all, is the legal burden altered by the article IV.2(m) inherent vice exception? The Supreme Court unanimously allows the appeal, deciding that the legal burden of disproving negligence rests on the carrier, both for the purpose of article III.2 and article IV.2 of the Hague Rules. Lord Sumption gives the sole judgment, with which all members of the Court agree. The judges factual findings are restored and, given the absence of evidence on the weight of the paper used, the Court decides that the carrier has failed to discharge its legal burden. The Hague Rules must be read against the background of the common law rules on bailment [7]. There are two fundamental principles in the law of bailment: (i) a bailee of goods is only under a limited duty to take reasonable care of the goods, but (ii) the bailee nonetheless bears the legal burden of proving the absence of negligence [8 9]. A contract of carriage governed by the Hague Rules is a contract of bailment for reward, to which the same principles apply, unless excluded by the Rules [11]. The Hague Rules do not exclude them. They are only a complete code on matters which they cover and thus not exhaustive [15]. In particular, they do not deal generally with the burden of proof, which in accordance with ordinary principles of private international law are matters for the law of the forum [15]. As with common law bailment, imposing a duty of care on the carrier by article III.2 of the Hague Rules is consistent with his bearing the burden of disproving negligence [17]. That conclusion is reinforced by the relationship between articles III and IV. Article IV covers negligent acts or omissions of the carrier which would otherwise constitute breaches of article III.2. It would be incoherent for the law to impose the burden of proving the same fact on the carrier under article IV, but on the cargo owner under article III.2 [18]. As to article IV, it is well established that the exceptions cannot be relied upon if they were caused to operate by the negligence of the carrier [28, 37]. The carrier must prove facts which show not only that an excepted peril existed, but that it was causative of the damage [37]. This means that the general rule is that the carrier bears the burden of proving that the exception was not caused to operate by the carriers negligence [33, 37]. The Supreme Court considers that The GLENDARROCH [1894] P 226 (CA) is no longer good law [31 33]. In the case of the exception in article IV.2(m) for inherent vice, the test is whether the cargo was fit to withstand the ordinary incidents of the specified service, and its application can be decided only by reference to some assumed standard of care [39]. The mere propensity of the cargo to emit moisture is not inherent vice if reasonable care in lining the containers would have resulted in the cargo being discharged undamaged [39]. The Supreme Court considers that the Court of Appeal was not justified in overturning the judges two material factual findings, since it was not shown that the judge was plainly wrong [40 42].
Capita Insurance Services Limited (Capita) entered into an agreement (the SPA) with the respondent for the sale and purchase of the entire issued share capital of Sureterm Direct Limited (the Company), a company which primarily offers motor insurance for classic cars. Shortly after Capitas purchase of the Companys share capital, employees of the Company raised concerns about the Companys sale processes. A Company review revealed that in many cases the Companys telephone operators had misled customers to make a sale. Capita and the Company informed the Financial Services Authority (FSA) of the findings. Capital and the Company agreed to to pay compensation to customers affected by the mis selling. Clause 7.11 of the SPA was an indemnity clause. It provided the Sellers undertake to pay to the Buyer an amount equal to the amount which would be required to indemnify the Buyer [] against all actions, proceedings, losses, claims, damages, costs, charges, expenses and liabilities suffered or incurred, and all fines, compensation or remedial action or payments imposed on or required to be made by the Company following and arising out of claims or complaints registered with the FSA, the Financial Services Ombudsman or any other Authority against the Company, the Sellers or any Relevant Person and which relate to the period prior to the Completion Date pertaining to any mis selling or suspected mis selling of any insurance or insurance related product or service. Capita brought a claim against the respondent under clause 7.11 alleging that it suffered loss as a result of the mis selling of insurance products in the period before the completion of the sale. The respondent claimed that the circumstances fell outside the scope of clause 7.11 as the requirement to compensate which had arisen was not as a result of a claim by the Companys customers or a complaint by those customers to the FSA or another public authority. The High Court held that clause 7.11 required the respondent to indemnify Capita even if there had been no claim or complaint. The Court of Appeal disagreed. It declared that the indemnity under clause 7.11 was confined to loss arising out of a claim or complaint. Capita appeals against the Court of Appeals order, arguing that it had fallen into error because it had been influenced by the respondents submission that the decision of the Supreme Court in Arnold v Britton [2015] AC 1619 had rowed back from the guidance on contractual interpretation which the Supreme Court gave in Rainy Sky SA v Kookmin Bank [2011] 1 WLR 2900. Capita argued that this had caused the Court of Appeal to place too much emphasis on the words of the SPA and to give insufficient weight to the factual matrix. Capita submitted that clause 7.11 should be construed so that only the fines, compensation or remedial action or payments imposed on the Company had to arise out of complaints made to the FSA against the Company. The Supreme Court unanimously dismisses Capitas appeal. Lord Hodge gives the lead judgment, with which the other Justices agree. Contractual Interpretation The court must ascertain the objective meaning of the contractual language. It must consider the contract as a whole and, depending on the nature, formality and quality of its drafting, give more or less weight to elements of the wider context in reaching its view as to that objective meaning [10]. Where there are rival meanings, the court can reach a view as to which construction is more consistent with business common sense. However, in striking a balance between the indications given by the language and the practical implications of competing constructions, the court must consider the quality of the drafting of the clause. It must be alive to the possibility that one side may have agreed something which in hindsight did not serve his interest, or that a provision may be a negotiated compromise [11]. It does not matter whether the detailed analysis commences with the factual background and the practical implications of rival constructions or with an examination of the contractual language, so long as the court balances the indications given by each [12]. Textualism and contextualism are not conflicting paradigms in a battle for the exclusive occupation of the field of contractual interpretation [13]. On the approach to contractual interpretation, Rainy Sky and Arnold were saying the same thing [14]. Clause 7.11 The Court of Appeal was correct on the meaning of clause 7.11 [25]. Careful examination of the contractual language identifies the circumstances which trigger the clause [42]. Capitas suggested construction is unlikely for two reasons. Firstly, the suggestion that only the fines, compensation or remedial action or payments imposed on the Company had to arise out of complaints made to the FSA against the Company would not restrict the scope of the warranty in any way. The source of loss and damage in the rest of the clause would remain unlimited. Secondly, it would have the effect that the clause would fail to specify against whom the relevant actions, proceedings and claims in the remainder of the clause could be made. There must be a limit on who such persons could be as it would be absurd for Capita to have a claim against the Sellers for indemnity resulting from any mis selling on its part before the Completion Date [33 35]. The contractual context is also significant in this case. The mis selling which clause 7.11 addresses is also covered by the Schedule 4 warranties, which concern compliance and regulatory matters. The scope of clause 7.11, breach of which gives rise to a liability unlimited in time, must be assessed in the context of the detailed and time limited warranties in Schedule 4 [27]. Capita had two years after completing the purchase to make a claim under Schedule 4. That was not an unreasonable time scale. It is not contrary to business common sense for the parties to agree wide ranging warranties, which are subject to a time limit, and to agree a further indemnity, which is not subject to any such limit but is triggered only in limited circumstances [40]. The SPA may have become a bad bargain from Capitas standpoint, as it appears it did not notify the sellers of a warranty claim within two years of Completion. But it is not the function of the court to improve their bargain [41].
Land that has been used by the inhabitants of a locality for sports and pastimes as of right for at least 20 years may be registered as a town or village green, pursuant to the Commons Registration Act 1965 (the Act). If the registration is wrongly made, an application can be made under section 14(b) for the register to be rectified. The issue in these appeals is the effect of a lapse of time on an application for rectification. The first appeal concerns land known as Clayton Fields in Huddersfield. Planning permissions dating back to the 1960s had been granted for housing development on the land, and it remained designated for such development in local plans. No building had however occurred by 1996, when an application by the Clayton Fields Action Group (the Action Group) was successfully made to register the land as a village green. The then landowners sold the land to the respondent (Paddico) in 2005, and in 2010 Paddico applied for rectification of the register. The application was granted by Vos J in the High Court, who held that the land had been wrongly registered as it had not been used by inhabitants from a single locality, and it was just to rectify the register, notwithstanding the long delay, as little prejudice (harm or detriment) had been demonstrated by the residents. The Court of Appeal agreed with the judge that the land had been wrongly registered but, by a majority, allowed the Action Groups appeal on the ground that the delay in seeking rectification made it unjust to rectify. In the second appeal, the Society for the Protection of Markham and Little Francis (the Society) successfully applied to register an area of 46 acres of open land in Weymouth as a village green in June 2001. The land was sold to the respondent (Betterment) in May 2005, who applied to rectify the register in December 2005. The application was granted in the High Court. Morgan J found that the registration should not have been made, as the use of the land had not been as of right, and that it was just to rectify the register as the inhabitants had been enjoying rights which they should never have had. His order was upheld by the Court of Appeal. Paddico and the Society appealed to the Supreme Court on the sole issue of the relevance of the lapse of time before making an application to the question of whether it was just to rectify the register. The Supreme Court unanimously allows Paddicos appeal, and dismisses that of the Society. It holds that a lapse of time is not immaterial to the justice of applications for rectification but that in these cases there was no evidence before the court to show that significant detriment to others had occurred as a result. Lady Hale gives the only judgment. Where an application for rectification in respect of land wrongly registered as a village green is made there are many private and public interests in play: those of the landowners who have been severely restricted in the use to which the land can be put; those of the local inhabitants who have been enjoying the amenity of the green; and those of the wider public, which include the protection of the accuracy of public registers, the preservation of public open spaces and the securing of the use of land earmarked for development for that purpose [1]. If there has been a lapse of time before making the application the court must adopt a principled approach to its relevance in circumstances where there is no precise analogy with public law claims (which are subject to short time limits), private law claims subject to limitation periods, or private property claims subject to the equitable doctrine of laches (unconscionable delay) [20]. The starting point is the Act itself, which lays down no limitation period for s 14 applications. S 14 has no bias either for or against rectification. The principles of good administration require not only a conclusive register but that the register is accurate and has been lawfully compiled. The focus is primarily on justice as between the applicant and the local inhabitants [33]. Where the applicant is the owner of the land, his rights have been severely curtailed when they should not have been and the inhabitants have acquired rights which they should not have. The lapse of time is not however immaterial. The best analogy is with the doctrine of laches which generally requires (a) knowledge of the facts, and (b) acquiescence, or (c) detriment or prejudice, if it is to bar the remedy [34]. Knowledge of the facts is unlikely to be a problem as landowners have an opportunity to object to the registration before it is made and subsequent purchasers are able to consult the register before deciding to buy. The fact that a purchaser bought the land with notice of the registration is unlikely to make much difference as he still suffers harm from the curtailment of his rights [35]. The crux of the matter is usually the question of detriment or prejudice, of which there are at least four relevant kinds: (i) detriment to the local inhabitants, although this may not be weighty given that this is a right they should never have had [38]; (ii) detriment to other individuals who may have made decisions to purchase property near the land based on the register [39]; (iii) detriment to public authorities and those they serve in, for example, the allocation of land for residential development [40]; and (iv) detriment to the fair hearing of the case after the lapse of time. Even after a long delay there must be some material from which to infer that public or private decisions have been taken on the basis of the existing register which have operated to the respondents significant detriment [42]. Applying these principles, the courts below had reached the right decision in the Betterment application, where there was no evidence of detriment [43]. In the Paddico application, the trial judge had correctly found that, although the lapse of time was over 12 years, there was no evidence of specific detriment to the local inhabitants, but injustice to the landowner by being deprived of the right to seek to develop the land, and to the public in the unavailability of the land for such development. The judges order for rectification would be restored [44].
KV, who is a Sri Lankan national of Tamil ethnicity, arrived in the UK in February 2011 and claimed asylum. He has scars on his arm and back which he says are the result of torture, but the Home Secretarys case is that they were self inflicted by proxy (SIBP), that is, by another person at his invitation. KVs account is that although he was not a member of the LTTE (Tamil Tigers), he used to melt gold for them. He says he was detained and tortured by the Sri Lankan government, who sought to extract information about where the gold and other valuables were kept. He alleges that the government applied hot metal rods to his arm while he was conscious, the pain rendered him unconscious, and that while he remained unconscious they applied the rods to his back. He appealed unsuccessfully to the First tier Tribunal (FTT) against the Home Secretarys refusal of his claim for asylum. The Upper Tribunal (the tribunal) reheard his appeal as the FTTs decision had been vitiated by an error of law. The tribunal found various aspects of KVs evidence unconvincing but recognised that if his scarring was indeed caused by torture then there was a real possibility his story was true. Dr Zapata Bravo, a medical expert, advised that the scars were caused by burning with a hot metal rod. Furthermore, the scarring on KVs arm had blurred edges but the scarring on his back had such clearly defined edges that he must have been unconscious while the burns were inflicted. He concluded that his clinical findings were highly consistent with KVs account of torture, and that it was unlikely the scars were SIBP. The tribunal nevertheless dismissed KVs appeal, finding that (i) it was clinically unlikely, given their precise edging, that his scarring could have been inflicted unless he was unconscious; and (ii) that it was clinically unlikely a person could remain unconscious throughout multiple applications of hot metal rods to his arms and back, unless he was anaesthetised . On appeal, the Court of Appeal (CA) held by a majority that the assessment made by the tribunal was legitimately open to it and could not be criticised as perverse or irrational. Furthermore, it was beyond Dr Zapata Bravos remit as an expert medical witness to state his opinion that his findings were highly consistent with KVs account of torture as a whole. Elias LJ dissented. The Supreme Court (Lady Hale, Lord Wilson, Lady Black, Lord Briggs and Lord Kitchin) unanimously allows the appeal and remits KVs appeal against the refusal of asylum to the Upper Tribunal for fresh determination. Lord Wilson gives the only judgment. The 1999 Manual on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, known as the Istanbul Protocol, guides medical experts to indicate for each lesion the degree of consistency between it and the cause given by the patient, on a scale from not consistent to diagnostic of. The Istanbul Protocol provides that ultimately, it is the overall evaluation of all lesions, and not the consistency of each lesion with a particular form of torture that is important in assessing the torture story. Thus, in concluding that his clinical findings were highly consistent with KVs account, Dr Zapata Bravo framed his conclusion in accordance with the Istanbul Protocol [15] [17]. In the Supreme Court, the Home Secretary felt unable to defend the CAs observations that Dr Zapata Bravo had gone beyond his remit. In their difficult task of analysing whether scars are the result of torture, decision makers can legitimately receive assistance from medical experts who feel able to offer an opinion about the consistency of their findings with the asylum seekers account about the circumstances in which the scarring was sustained, not limited to the mechanism by which it was sustained. The CAs suggestion that the references in the Istanbul Protocol to the trauma described relate only to the mechanism by which injury is said to have been caused is too narrow a construction of the word trauma [20] [21]. On the other hand, unless an expert finds that the trauma described is either not consistent with or diagnostic of the alleged torture, it would be beyond his or her remit to state that he or she believed the appellant. The conclusion about credibility always rests with the decision maker following a survey of all the evidence [25]. This approach is consistent with that of the Court of Appeal in a previous case of alleged torture, and that of the European Court of Human Rights [22] [23]. An expert investigating an allegation of torture should recognise the Istanbul Protocol as equally authoritative to the relevant Practice Direction on expert evidence in immigration and asylum cases at the FTT and the tribunal [24]. As for the decision of the tribunal, Elias LJ in his dissenting judgment had noted various problems with the tribunals reasons for rejecting KVs account of torture [26]. In particular, the tribunals summary of the doctors evidence lacked apparent awareness that the scarring with precise edging was only on KVs back, and addressed a hypothesis, not advanced by the doctor or KV, that KV was unconscious while the hot metal rods were applied to his arms as well as to his back [28]. Given KVs serious lack of credibility in several areas, the tribunal was correct to address the possibility of wounding SIPB. However, when the tribunal concluded that there were only two real possibilities either that KV had been tortured or that the wounding was SIBP and when it rejected the former, it failed to take into account the fact that self infliction of wounds is inherently unlikely. There is evidence of extensive torture by state forces in Sri Lanka at the relevant time. By contrast, evidence of wounding SIBP on the part of asylum seekers is almost non existent. It is an extreme measure for a person to decide to cause himself deep injury and severe pain. Moreover, if KVs wounding was SIBP, the wounds on his back could only have been inflicted under anaesthetic so he would have needed the assistance of someone with medical expertise. The Supreme Court approves Elias LJs view that very considerable weight should be given to the fact that injuries which are SIBP are likely to be extremely rare [31] [35].
The appellants received indeterminate prison sentences comprising (a) a fixed tariff period; and (b) an indeterminate post tariff period. Post tariff detention was to continue until the appellants satisfied the Parole Board that that they were no longer a danger to the public. The appellants, relying upon the decision of the European Court of Human Rights (ECtHR) in James v United Kingdom (2012) 56 EHRR 399, claimed that their post tariff detention was unlawful because the Secretary of State had failed to provide them with a reasonable opportunity to progress their rehabilitation and release [1]. In James v United Kingdom, the ECtHR found that a failure properly to progress prisoners towards post tariff release breached their article 5(1) rights to liberty under the European Convention on Human Rights and made their continued detention unlawful [1]. The appellants claimed that the Secretary of State had failed to provide them with a reasonable opportunity to progress their rehabilitation and release: (1) Haney, relying on articles 5 and 14, claimed that he had been transferred to open prison conditions too close to the expiry of his tariff period to enable his immediate release. (2) Kaiyam, Massey and Robinson, relying on article 5, claimed that they had not been able to commence particular rehabilitative treatment programmes within a reasonable time of their tariff period expiring. The Supreme Court (a) unanimously allows Haney and Masseys article 5 appeal, awarding Haney damages of 500 and awarding Massey damages of 600; (b) unanimously dismisses Haneys article 14 appeal and Kaiyams article 5 appeal; and (c) dismisses the article 5 appeal in the case of Robinson by a majority of 4 1 (Lord Mance dissenting). Lord Mance and Lord Hughes give the unanimous judgment in the appeals of Haney, Kaiyam and Massey. Lord Hughes (with whom Lord Neuberger, Lord Toulson and Lord Hodge agree) gives a separate lead judgment in the Robinson appeal. Lord Mance delivers a dissenting judgment. Haney, Kaiyam and Massey Lord Mance and Lord Hughes hold that: (1) The Supreme Court is not bound to follow the decision of the ECtHR in James v United Kingdom. The ECtHRs reasoning that a failure properly to progress prisoners towards post tariff release amounted to a breach of their article 5(1) right to liberty would not be followed. The express wording of article 5(1) or 5(4) did not create any relevant duty to provide prisoners with a reasonable opportunity to progress their rehabilitation and release [18 23], [30 37]. (2) However, the overall scheme of article 5 did impose an implied ancillary duty on the Secretary of State to facilitate prisoners rehabilitation and release. Breach of that duty would not affect the lawfulness of the detention, but would entitle prisoners to damages [38 39]. (3) In respect of the appellants in the present case: (a) Haneys delay in being transferred to open prison conditions had deprived him, contrary to article 5, of a reasonable opportunity to demonstrate that he was no longer a danger to the public, an opportunity which the Secretary of State himself had said that he should have [49 50]. However, there had been no breach of article 14 in discriminating between pre and post tariff prisoners [53 54]. (b) Kaiyams delay in being able to commence various rehabilitative treatment programmes did not breach his article 5 rights. He had been provided with a reasonable opportunity to demonstrate that he was no longer a risk to the public through courses on enhanced thinking, drug awareness and victim awareness but his responses to those programmes had been poor [59 61]. (c) Masseys delay in being able to commence an extended sexual offenders treatment programme until nearly three years after the expiry of his tariff period (and after the Secretary of State had provided for a timetable which was not fulfilled) had deprived him of the reasonable opportunity to demonstrate that he was no longer a danger, in breach of article 5 [68 69]. Robinson Lord Hughes holds that Robinsons delay in being able to commence an extended sexual offenders treatment programme until nearly nine months after the expiry of his tariff period did not breach his article 5 rights. The question was not whether the appellant had been deprived of access to a particular course, but whether he had been given a reasonable opportunity to demonstrate that he was no longer a danger to the public [85], [89 92]. Lord Mance (dissenting) considers that article 5 required that Robinson be given a reasonable degree of access to the extended sexual offenders treatment programme, which he had not been given in the circumstances of the present case [99], [109 111].
This appeal concerns the extent to which courts can rely on information which, in the public interest, cannot be disclosed to a person affected by a search and seizure warrant. In this case, search and seizure warrants were issued under s.8 of the Police and Criminal Evidence Act 1984 (PACE) by the St. Albans Magistrates Court in the absence of the Appellant (ex parte) on 16 June 2014, and executed on 26 June 2014. The Appellant was provided with a redacted version of the written application for the warrants on 16 September 2014. He applied for disclosure of the unredacted materials which was refused on grounds of public interest immunity (PII) on 25 September 2014. On 26 September 2014 the Appellant sought return of the material seized by a judicial review claim on the basis that the warrants, entries, searches and seizures were unlawful. By a consent order signed on 27 March and sealed on 6 May 2015 the Second Respondent agreed that the warrants should be quashed. Prior to consenting, on 23 March 2015, the Second Respondent made a protective application under s.59 of the Criminal Justice and Police Act 2001 (CJPA) for continued retention of the seized materials. That application was granted on 11 June 2015. The Appellant sought a further judicial review of that decision. This was dismissed by the Divisional Court which held that it was open to a magistrate issuing a search and seizure warrant and a court deciding an application under s.59 of CJPA to consider material which was withheld from disclosure on PII grounds. The Supreme Court addressed five issues on appeal: (i) how far a Magistrates Court, on an ex parte application for a search and seizure warrant under ss.8 and 15(3) of PACE, can rely on information which in the public interest cannot be disclosed to the subject of the warrant; (ii) whether in proceedings for judicial review of the legality of a search warrant, issued ex parte under sections 8 and 15(3) of PACE (a) it is permissible for the High Court to have regard to evidence upon which the warrant was issued which is not disclosed to the subject of the warrant and (b) whether, where a Magistrates Court is permitted to consider evidence not disclosable to the subject of the warrant, but the High Court is not, it follows that the warrant must be quashed if the disclosable material is insufficient on its own to justify the warrant; (iii) whether there is jurisdiction in a Crown Court to rely on evidence not disclosable to the subject of the warrant in an application made in the presence of both parties (inter partes) to retain unlawfully seized material under s.59 of CJPA; (iv) whether in proceedings for judicial review of an order made inter partes for retention of unlawfully seized material under s.59 of CJPA it is permissible for the High Court to have regard to evidence (upon which the warrant was issued) which is not disclosed to the subject of the warrant; and (v) whether the principles concerning irreducible minimum disclosure apply to proceedings concerning search warrants. The Supreme Court unanimously dismisses the appeal. Lord Mance writes the judgment of the court. The background to the appeal is that no express Parliamentary authorisation exists for the operation of a closed material procedure in any of the contexts outlined in the issues [11]. Under ss.8 and 15 of PACE premises, not a person, is the subject of a warrant [12]. Any analysis should start from the initial application for a warrant, rather than the end position of the application for judicial review but any conclusions reached about earlier stages will be reviewed in light of the analysis of later stages [14]. Issue (i) The statutory scheme of ss.8 and 15 of PACE permits a Magistrates Court in an ex parte application for a search and seizure warrant to have regard to material which cannot on public interest grounds be disclosed to a person affected by the warrant or order, even where this material is decisive for the legitimacy of the warrant [22, 37]. The statutory scheme of ss.8 and 15 of PACE is intended to be ex parte. It is a process designed to be operated speedily and simply on the basis of information provided by a constable satisfying a magistrate that there are reasonable grounds for believing the matters set out in s.8(1) of PACE. There is nothing in the statutory scheme which expressly restricts the information on which the magistrate may act [27]. The statutory procedure under s.8 and the Criminal Procedure Rules also provide protections to persons affected by a warrant and the Rules themselves contemplate that the magistrate or Crown Court will see and rely on information not disclosable for PII reasons [25 27, 34]. Requiring the police in these cases to refrain from seeking a warrant would limit important sources of information and the efficacy of police investigations [27]. A statutory ex parte procedure of this nature to secure evidence on premises is not within the general prohibition on closed procedures without express statutory authorisation recognised in Al Rawi v Security Service [2012] 1 AC 531. Issue (iii) The Crown Court can on an inter partes application under s.59(7) of CJPA operate a closed material procedure on PII grounds [43]. The Crown Court is required to put itself in the shoes of a hypothetical Magistrates Court being asked, immediately after the return of the property, to issue a fresh warrant with a view to seizure of that property [40]. In view of the answer to issue (i), that Magistrates Court is entitled in an ex parte application to have regard to information which cannot be disclosed for PII reasons [40]. Parliament must have intended PACE and CJPA to operate coherently and contemplated the Crown Court being able to operate a closed material procedure under s.59 [41]. An analogy is drawn with Bank Mellat v HM Treasury (No 2) [2014] AC 700 where there was no express provision enabling the Supreme Court to operate a closed material procedure on appeal, but without such a power an appeal to it against a wholly or partially closed judgment could not be effective [42]. Issues (ii) and (iv) are considered together as they raise essentially the same point The High Court can conduct a closed material procedure on judicial review of a magistrates order for a warrant under s.8 of PACE or a magistrates order for disclosure or a Crown Courts order under s.59 of CJPA [59]. The reference to judicial review in Al Rawi, was not directed to this situation [59]. An alternative analysis whereby, in the absence of a closed material procedure, a court must presume that a public authority has acted properly, depriving judicial review of any real teeth, is unacceptable [46 52]. Although judicial review and an appeal are not precisely equivalent, many of the considerations identified in Bank Mellat as favouring a closed material procedure in the context of an appeal also militate in favour of a similar result in the context of judicial review [54 57]. It would be unjust and potentially absurd if the High Court on judicial review had to address a case on a different basis from the magistrate or Crown Court or quashed the order and remitted it to the lower court on a basis different from that which the lower court originally adopted. The High Court would also be unable to give effect to the decision which the lower court or tribunal should have reached or to consider an outcome on the same basis as the lower court as may be required under s.31 of the Senior Courts Act 1981 unless it can operate a closed material procedure when necessary [57 58]. Issue (v) Open justice should prevail to the maximum extent possible [61]. However, it cannot be axiomatic that even the gist of the relevant information must be supplied to any person claiming to be affected and seeking to object to the warrant, search or seizure. Each case must be considered in the light of the particular circumstances. In general terms, issue (v) should be answered in the negative [65].
The Appellant challenges the adequacy of the reasons given by the Scottish Ministers (the Ministers) for their decision to approve Fife Councils policies for the future development of St Andrews. She is concerned that, if implemented, those policies will cause irreversible damage to the landscape setting of the town. In the Scottish planning system (as at the relevant time), the overall strategy adopted by a planning authority on which development in a particular area will be based is set out in a structure plan. It is for the Ministers to approve or reject such a plan. Individuals may make objections to the planning authority prior to the plan being submitted to the Ministers, and to the Ministers themselves after submission. Prior to making a decision to approve or reject a plan, the Ministers must consider any objections properly made to them in respect of either the plan as submitted or any material modification that they, the Ministers, propose to make to it. They must also give such a statement as they consider appropriate of the reasons governing their decision to approve, reject or modify a plan. If a structure plan is approved, its strategy is progressed in more detailed, site specific ways in local plans. In January 2003, Fife Council publicised its intention to prepare a structure plan for Fife. It commissioned a report (the Grant Report) from a landscape architect on the capacity of the landscape adjacent to St Andrews to accommodate development. The report identified approximately 25 hectares of land, 20 of which were to the west of St Andrews, on which development could be accommodated without damaging the landscape. It deemed further development inappropriate because of the potential impact on St Andrews landscape. The finalised structure plan specified the fundamental strategic objective as the economic regeneration of Fife. It stated the intention to realise the potential of St Andrews as the economic driver for Fife by expanding the town, predominantly to the west, by building 1200 houses, a science park, a business park and bypass, while balancing that aim with the need to protect its landscape setting and identify a robust green belt boundary. It also stated that the local plan would determine how, where and the extent to which St Andrews should grow. The plan was submitted to the Ministers in June 2006. In December 2008, the Ministers published proposed modifications to the structure plan, which did not materially alter it as it applied to St Andrews. They also published a strategic environmental assessment (SEA), which concluded that expansion of the town would require careful site selection and mitigation in the relevant local plans due to the limited capacity of the landscape to accommodate development, as identified in the Grant Report. The Appellant submitted a letter in January 2009 objecting to the absence of any modification of the strategy that St Andrews should be an economic driver for Fife. She made specific points grouped under various headings in support of that objection, one of which was Landscape Capacity St Andrews. Under that heading, she referred both to a 1998 study which asserted that St Andrews was at its landscape capacity and to the Grant Reports conclusion that there was limited scope for development. In May 2009, the Ministers approved the final plan with modifications, and stated in a letter to Fife Council that they had considered all objections made to them. They published two schedules of reasons which stated reasons for the modifications made and reasons for not making certain modifications respectively. The latter summarised the objections made, including the Appellants, and stated responses to them. One of these was reason 33, which addressed objections to the effect that landscape capacity assessments had indicated that St Andrews was at its landscape capacity. The reason given for not modifying the structure plan on the basis of such objections was that the Grant Report had indicated that some scope for development to the west of St Andrews existed, subject to mitigation. The Appellant challenges the validity of the structure plan on the ground that the Ministers failed in reason 33 to give adequate reasons for rejecting the part of her objection relating to landscape capacity. She asserts that her objection was not that there was no capacity for development, but that the available capacity could not accommodate the scale of the planned development; that referring to the Grant Report therefore did not address her point; and that she was substantially prejudiced by this failure, as it was unclear whether the Ministers had grappled with that point. The Inner House of the Court of Session rejected these arguments. She also appeals in relation to the way in which the Inner House dealt with the expenses of the proceedings. The Supreme Court unanimously dismisses the appeal. Lord Reed gives the judgment of the Court. Although the distinction is not clear cut, a structure plan is concerned with policy and general proposals, rather than with more detailed matters of the kind addressed by local plans. The duty of the Ministers is to give reasons for approving or rejecting a structure plan, not to justify the policies and proposals set out in it, that being the duty of the planning authority at an earlier stage in the process. Further, the adequacy of the reasons given by the Ministers must be considered on the basis that they are addressed to persons familiar with the background and the issues. These factors are relevant to the exercise of discretion allowed to them in giving such a statement of reasons as they consider appropriate [45 46]. The reasons given must be proper, adequate and intelligible, and must deal with the substantive points raised by way of objection. If that test is met, short reasons may suffice, and if a point of objection is not substantive, little or no reasoning may be given [47]. Further, the Ministers duty to give reasons must be assessed with a sense of proportion, so that an unreasonable burden is not imposed on them. Where Ministers receive a plethora of objections, it is reasonable for the Ministers to group them into broad categories according to their general tenor and to respond to them on that basis [48 49]. The assertion that St Andrews was at landscape capacity appeared in terms in the Appellants letter, and reason 33 addressed objections of that general tenor by citing the finding of the Grant Report that there existed some scope for development to the west of St Andrews [49]. The broader point made by the Appellant that the scale of development envisaged in the structure plan would damage the landscape setting of the town was addressed by the substance of five of the further reasons given in the schedule. For example, reason 17 explained that how the development was to be organised, having regard to landscape considerations, would be determined through the local plan process. The reasons given, read as a whole, provided an intelligible explanation to a well informed reader such as the Appellant as to why the Ministers were not persuaded by her objections [50 51]. Further, there was no flaw in the Ministers reasoning by which the Appellant was prejudiced. The content of the Ministers SEA and schedule of reasons clearly showed that the Ministers had taken account of the potential impact of the policies and proposals in the structure plan on the landscape [52]. In relation to expenses, the Inner House dealt with them in a way that is not open to further argument in the Supreme Court [56]. The court adds some observations about the types of cases which are appropriately considered by it, and explains why this appeal did not fall into that category [58 63].
The issue in this appeal is the weight to be accorded to an earlier grant of refugee status by the United Nations High Commission for Refugees (UNHCR) to a claimant who applies for asylum t o the United Kingdom. The appellant, referred to as IA, is an Iranian national, born in 1976. He left Iran for Iraq when he was 16 and in 1998 applied for and was granted recognition as a refugee to the UNHCR in Iraqi Kurdistan on the basis that he feared persecution as a member of the Kurdistan Democratic Party of Iran (KDPI). He left Iraq for Turkey in May 2002, presented himself to the UNHCR there and was again recognised as a refugee. No action was taken to send him to a safe country and 3 years later he left Turkey, travelled to the United Kingdom and applied for asylum. The respondent, the Secretary of State for the Home Department, refused his application on 27 September 2007 and on 5 November 2008. IAs account was found not to be credible, partly because important matters which he referred to in his asylum interview had not been included in his original statement, and because of the circumstances in which he produced documents supporting his case after the first refusal. There was also a discrepancy between his account of working with Mr Armandzadeh for the KDPI and that given on his behalf by Mr Armandzadeh. IAs appeal to Immigration Judge Agnew was dismissed. She took the grant of refugee status to IA by the UNHCR as a starting point and as significant, despite the lack of evidence as to the basis and procedures for its grant, and held that clear and substantial grounds were needed to come to a different conclusion. She found those grounds to exist. IA had not established that he was involved with the KDPI or that the Iranian authorities would have any interest in him. IAs appeal to the Extra Division of the Court of Session was also dismissed. IA appealed to the Supreme Court. Before this appeal, the UNHCR disclosed documents relating to the grant of refugee status to him. It supported the consistency of IAs case on a number of points. The Supreme Court unanimously dismisses the appeal. It holds that the national decision maker must pay close attention to a UNHCR grant of refugee status and considerably pause before arriving at a different conclusion, but that the immigration judge had been entitled to reject IAs appeal in this case. It will be open to IA to submit a fresh claim to the Secretary of State based on the new material from the UNHCR. Lord Kerr, with whom the other justices agree, gives the only judgment. The UNHCR has a supervisory responsibility in relation to the 1951 Convention relating to the Status of Refugees. State parties to the Convention are obliged to cooperate with UNHCR in the exercise of its functions but its decisions as to refugee status are not binding on state parties, who have an independent autonomous responsibility under the Convention to determine a persons refugee status on asylum applications [28 29]. The accumulated and unrivalled expertise of the UNHCR and its experience and promotion of procedures of high standard and consistent decision making in the field of refugee status determinations must invest its decisions with considerable authority [44]. The issue was how to translate that respect into a tangible impact on decision making by national authorities; in particular, how to resolve matters relating to the credibility of the asylum applicant. The approach proposed by the UNHCR, who intervened in the appeal, was sensible: a UNHCR determination could be disregarded where reliable information was available to the decision maker which called the credibility of the applicants claim into significant question. The information should be from a source other than the applicants own account, unless his story was so riddled with inconsistency and implausibility as to render it unbelievable [46]. It was difficult to fit the fact of the UNHCR decision into the model of determination of a claim to asylum and its influence had therefore to be expressed in general and consequently imprecise terms [47]. This fact must not be allowed to detract from the influence that it wields. Considerations of comity, legal diplomacy and the need for consistency of approach in international protection of refugees required this. A UNHCR decision would generally have been taken at a more proximate time to the circumstances which caused the claim to be made and with first hand knowledge and insight into those conditions [48]. All these factors required of the national decision maker close attention to the UNHCR decision and considerable pause before arriving at a different conclusion. It was not a presumption, nor did it shift the burden of proof, but substantial countervailing reasons were required to justify a different conclusion [49]. In IAs case, it was clear that the Immigration Judge conducted a careful analysis of the material which led her not to follow the UNHCRs determination. There was external evidence which called into question the credibility of IAs account, which entitled her then to examine his account for any intrinsic untrustworthiness [52 53]. IA was entitled to rely on the new evidence of the interview he gave to the UNHCR in May 2003, for the purpose of assessing the level of influence that the UNHCR decision should have. His case would not however be remitted to the immigration judge, even though it was possible that she might have reached a different view on his credibility had it been available earlier, as the better course was for IA to submit a fresh claim under rule 353 of the Immigration Rules. It seemed likely that the Secretary of State would be satisfied that the new material created a reasonable prospect of success and so accept it as a fresh claim [58 61]. The present appeal was therefore dismissed.
In 2011 the fees charged by universities were increased. The cost of fees and maintenance are generally financed by loans from the Government, which are only repaid when students can afford to do so and at an affordable rate. In order to qualify for a loan under Regulation 4(a) of the Education (Student Support) Regulations 2011 (the Regulations) a student must have been lawfully ordinarily resident in the UK for three years before the day the academic year begins (the lawful residence criterion); and be settled in the UK on that day (the settlement criterion). The effect of the settlement criterion is that all students with limited or discretionary leave to remain in the UK are ineligible for student loans. The Appellant is a Zambian national, now aged 20, who came to this country in 2001 at the age of six. Her mother overstayed and the Appellant was unlawfully present in the country until 2012 when she regularised her immigration status. She presently has discretionary leave to remain in the UK. She will be able to apply for indefinite leave to remain in 2018. She has received her entire education in the UK, obtained good grades and wishes to go to university. She has been unable to take up the university places offered her as she is not eligible for a student loan because of her immigration status. The issue in the appeal is whether either the lawful residence criterion or settlement criterion breaches the Appellants right to education under Article 2 of the First Protocol to the European Convention on Human Rights (A2P1), or unjustifiably discriminates against her in the enjoyment of that right. The High Court found that the blanket exclusion from eligibility for student loans based on the Appellants immigration status was a disproportionate interference with her right of access to education under A2P1 and unjustifiable discrimination linked to national origin contrary to Article 14 ECHR. The Court of Appeal allowed the Secretary of States appeal on the basis that this was an area of national strategic policy related to the distribution of scarce resources and so a broad margin of appreciation should be afforded to government policy. The Appellant appealed to the Supreme Court. The Supreme Court allows the appeal by a majority of 3:2. Lady Hale writes the leading judgment, with which Lord Kerr and Lord Hughes agree. Lord Hughes writes a concurring judgment. Lord Sumption and Lord Reed write a joint dissenting judgment. A2P1 does not oblige a state to provide any particular system of education. However, if the state sets up higher educational institutions it will be under an obligation to provide a right of access to them [23]. The Appellant complains that the denial of access to a student loan prevents her from undertaking higher education in the UK and that she has been discriminated against on the basis of her immigration status, contrary to Article 14 ECHR. Whether considered under A2P1 alone or in conjunction with Article 14 ECHR, the question is whether this discrimination is justified [25 26]. The relevant test is not whether the decision was manifestly without reasonable foundation. As this is a question of the distribution of finite resources, respect must be accorded to the primary decision maker. However, greater deference is not warranted as the Respondent Secretary of State did not address his mind to the educational rights of students with discretionary or limited leave to remain when making these regulations [32]. The Regulations pursue a legitimate aim, namely targeting resources on those students who are likely to stay in the UK to complete their education and afterwards contribute to the UK economy through their enhanced skills and the taxes they pay [34]. The means chosen to pursue that aim, however, were not rationally connected to it. Although the Appellant does not yet have indefinite leave to remain, her established private life in the UK means that she cannot be removed unless she commits a serious criminal offence [35]. Even if a bright line rule is justified in the particular context, the particular rule chosen has to be rationally connected to the aim and a proportionate way of achieving it. Exclusionary rules, which allow for no discretion to consider unusual cases falling the wrong side of the line but equally deserving, are harder to justify [37]. In this case, a bright line rule which more closely fitted the legitimate aims of the measure could have been chosen. Given the comparatively small numbers involved, it has not been shown that it would be administratively unworkable to provide student loans to at least some of those with discretionary or limited leave to remain [38]. The denial of student loans has a very severe impact upon those it affects [40]. Denying or delaying higher education for these individuals also harms the community and the economy [41]. Therefore, the settlement criterion unjustifiable infringes the Appellants Convention rights [42]. The lawful residence criterion is compatible with the Appellants Convention rights. There are strong public policy reasons for insisting on a period of lawful ordinary residence before a person become entitled to public services. If the requirement were to be relaxed it would involve an intolerable administrative burden. The overall balance of harm involved in a delay of up to three years is of a different order from that resulting from the settlement criterion [45]. The court makes a declaration that the application of the settlement criterion to the Appellant is a breach of her rights under Article 14 ECHR read with A2P1 [49]. In his concurring judgment Lord Hughes argues that all rules are blanket rules and are both inclusionary and exclusionary. Clear rules of this sort are useful [60]. While the settlement criterion is unjustifiably discriminatory, the Secretary of State is not necessarily required to construct a rule which allows for a discretion to consider exceptional cases [68]. Lord Reed and Lord Sumption would have dismissed the appeal. A2P1 does not import a right to public financial support [73]. Given that this is a question of state benefits, the test for justification is manifestly without reasonable foundation [77]. The discriminatory effect of the Regulations is justified as it is legitimate to discriminate between those who do and those who do not have a sufficient connection with the UK [88]. A clear rule such as this can be applied accurately and consistently, without the element of arbitrariness inherent in the discretionary decision of individual cases. It simplifies administration and allows for faster decision making [91]. The court must also accord a measure of discretion to the primary decision maker [93].
The issue in this case is whether the claimants rights under article 6(1) of the European Convention on Human Rights (ECHR) were engaged in a disciplinary hearing that was conducted by X School (the School). The claimant contends that the Schools refusal to allow him legal representation violated his article 6 rights. The Safeguarding Vulnerable Groups Act 2006 (the 2006 Act) and its predecessor legislation requires, inter alia, a school to report the circumstances of dismissals involving findings of sexual misconduct to the Independent Safeguarding Authority (ISA) which maintains a childrens barred list. Those included on the childrens barred list are prohibited from undertaking certain work with children, including teaching. Part 1 of Schedule 3 of the 2006 Act applies to ISAs determinations of whether to include an individual on the childrens barred list. It provides that ISA must include an individual on the childrens barred list if a) ISA is satisfied that the person has engaged in relevant conduct and b) it is appropriate to include the person on the list (para 3(3)). Relevant conduct includes conduct of a sexual nature involving a child (para 4(1)). It also provides that ISA must give an individual facing being placed on the childrens barred list the opportunity to make representations (para 2) and it empowers ISA to require various persons, such as the police, to provide it with information (para 19). In coming to its determination, ISA must make an independent evaluation of the facts. It is not bound by the findings of any prior disciplinary hearing. This is also set out in guidance provided to case workers. If ISA determines to place an individual on the childrens barred list, that individual has a right of appeal to the Upper Tribunal (section 4(1) & (4)). The claimant was a sessional music assistant at the School. On 4 October 2007 he was suspended from his post on the basis of allegations that he had formed an inappropriate relationship with M, a 15 year old boy doing work experience at the School. Disciplinary proceedings were launched by the School. The claimant was advised by his solicitor not to participate in them until the police had completed their investigations. In early February 2008 the Crown Prosecution Service indicated that they did not intend to take any further action. By this time the School had also completed its investigation. The investigation report concluded that there was strong evidence that the allegations were proven. A disciplinary hearing was scheduled to take place on 21 February 2008. In advance of the hearing, the claimant was told that he was entitled to be represented by a trade union representative or work colleague. The claimant was not a member of a trade union and sought to be represented by his solicitors. The School refused. The claimant attended the disciplinary hearing accompanied by his father. He refused to answer questions on the basis that he believed the proceedings to be unfair. The disciplinary panel found that the claimant had formed an inappropriate relationship with M. They held that this constituted gross misconduct which warranted his summary dismissal. In May 2008, the School reported this to the Secretary of State in accordance with the legislation preceding the 2006 Act. The question of whether or not the claimant should be added to the childrens barred list remains pending before ISA. The claimant issued judicial review proceedings on 19 May 2008 seeking a declaration that by reason of the denial of his right to legal representation before the Schools disciplinary hearing, it was in breach of his rights under article 6 ECHR. He succeeded before Mr Stephen Morris QC sitting as a Deputy High Court Judge at first instance ([2009] EWHC 504 (Admin)) whose decision was upheld by the Court of Appeal (Laws, Wilson and Goldring LJJ) ([2010] EWCA Civ 1). The Supreme Court, by a majority, allows the appeal. Article 6(1) does not apply to the disciplinary proceedings in issue. The lead judgment is given by Lord Dyson, with whom Lord Walker agrees. Lords Hope and Brown give separate, but concurring, opinions. Lord Kerr gives a dissenting judgment. Article 6 ECHR applies where there is a determination of . civil rights and obligations. The meaning of determination was considered by the European Court of Human Rights (ECtHR) in Ringeisen v Austria (No 1) (1971) 1 EHRR 455. In that case the ECtHR held that it meant proceedings the result of which is decisive for private rights and obligations. In Le Compte, Van Leuven and De Meyere v Belgium (1981) 4 EHRR 1, the ECtHR contrasted proceedings which are directly decisive of the right in question, to which article 6 applies, with those which have a tenuous or remote consequence. The ECtHR has repeated this mantra in a series of further cases: [36] [59]. The mantra has been applied to circumstances in which initial proceedings do not themselves determine a civil right but are closely linked to subsequent proceedings which do. The ECtHR takes a pragmatic, context sensitive approach to the question of when such a link is established. The case law demonstrates that the factors it takes into account include: whether the first proceedings are in fact dispositive of the later proceedings; how close the link is between the two proceedings; whether the object of the two proceedings is the same; and whether there are policy reasons for holding that article 6(1) should not apply in the first proceedings. In light of this, the test of substantial influence formulated by Laws LJ in the Court of Appeal below is a useful formulation and is endorsed: [64] [69]. In application to the present facts, it is not disputed that the civil right in question is the claimants right to practise his profession as a teaching assistant and to work with children more generally. This civil right would be directly determined by a decision of ISA to include him on the childrens barred list. Accordingly, article 6(1) ECHR applies to proceedings before ISA. However, it was not the function of the Schools disciplinary proceedings to determine the civil right in issue. Rather, they were only concerned with the claimants employment at the School. Therefore, in and of themselves, the Schools disciplinary proceedings do not engage article 6(1) ECHR. As regards the establishment of a link such that article 6(1) ECHR applies to the disciplinary proceedings, they do not directly determine or exert a substantial influence over the ISA proceedings. Therefore, in combination with the ISA proceedings, the Schools disciplinary proceedings do not engage article 6(1). In particular this is because ISA is required to exercise its own independent judgment both in relation to finding facts and assessing their gravity and significance. The decision by ISA whether to include an individual on the childrens barred list is only taken following an assessment of the full merits of each case. The absence of an oral hearing does not prevent the ISA from making its own findings of fact and forming its own view independent of the view formed by the School [70] [83]; [87] [92]; [97] [101]. Lord Kerr would have dismissed the appeal. In his view, ISA could and indeed should be substantially influenced by the findings of the disciplinary tribunal. The requirement that it reach its own independent view of the facts is not inconsistent with this. The overall process involving the determination of the claimants civil right must be fair. In light of this, it is mistaken to concentrate substantially or exclusively on an individual stage in that process. In this case, the disciplinary proceedings were critical in testing the evidence against the claimant. To recognise his right to be legally represented at that stage is consonant with the proper safeguarding of his article 6 rights: [103] [119].
This is a mothers appeal to the Supreme Court on the ground that her removal from the United Kingdom will constitute a disproportionate interference with her right to respect for her private and family life, guaranteed by article 8 of the European Convention on Human Rights. The over arching issue is the weight to be given to the best interests of children who are affected by the decision to remove or deport one or both of their parents from this country. Within this is a more specific question: in what circumstances is it permissible to remove or deport a non citizen parent where the effect will be that a child who is a citizen of the United Kingdom will also have to leave? There is no power to remove or deport a person who is a United Kingdom citizen: see Immigration Act 1971, section 3(5) and (6). They have a right of abode in this country, which means that they are free to live in, and to come and go into and from the United Kingdom without let or hindrance: see 1971 Act, sections 1 and 2. The consistent stance of the Secretary of State is that UK citizens are not compulsorily removed from this country. However, if a non citizen parent is compulsorily removed and agrees to take her children with her, the effect is that the children have little or no choice in the matter. There is no machinery for consulting them or giving independent consideration to their views. The mother is a national of Tanzania who arrived in the UK in December 1995. She made three unsuccessful claims for asylum, one in her own identity and two in false identities. In 1997 she formed a relationship with a British citizen. They have two children, now aged 12 and 9, who are both British citizens and have lived here all their lives. The parents separated in 2005 but the father continues to see the children regularly. After the fathers diagnosis with HIV in 2007, the mother made further representations to the Secretary of State. These representations were accepted as a fresh claim but were rejected. The mothers appeal was dismissed by the Asylum and Immigration Tribunal and by the Court of Appeal. The Court of Appeal upheld the tribunals finding that the children could reasonably be expected to follow their mother to Tanzania. The Supreme Court unanimously allows the appeal. Lady Hale gives the leading judgment. The best interests of the child broadly means the well being of the child. A consideration of where these best interests lie will involve asking whether it is reasonable to expect the child to live in another country. An important part of discovering the best interests of the child is to discover the childs own views. [29], [34] [37] Although nationality is not a trump card it is of particular importance in assessing the best interests of any child. The children in this case are British not just through the accident of being born here, but by descent from a British parent; they have an unqualified right of abode here; they have lived here all their lives; they are being educated here; they have other social links with the community here; they have a good relationship with their father here. It is not enough to say that a young child may readily adapt to life in another country. [30] [31] The intrinsic importance of citizenship should not be played down. As citizens these children have rights which they will not be able to exercise if they move to another country. They will lose the advantages of growing up and being educated in their own country, their own culture and their own language. They will have lost all this when they come back as adults. [32] In making the proportionality assessment under article 8, the best interests of the child must be a primary consideration. This means that they must be considered first. They can, of course, be outweighed by the cumulative effect of other considerations. In this case, the countervailing considerations were the need to maintain firm and fair immigration control, coupled with the mothers appalling immigration history and the precariousness of her position when family life was created. But the children were not to be blamed for that. And the inevitable result of removing their primary carer would be that they had to leave with her. In those circumstances, the Secretary of State was clearly right to concede that there could only be one answer. [33] Lord Hope observed that the fact of British citizenship will hardly ever be less than a very significant and weighty factor against moving children who have that status to another country with a parent who has no right to remain here, especially if the effect of doing this is that they will inevitably lose the benefits and advantages of this citizenship for the rest of their childhood. The fact that the mothers immigration status was precarious when the children were conceived cannot be held against the children in the assessment of whether their best interests are outweighed by the strength of any other considerations. It would be wrong in principle to devalue what was in their best interests by something for which they could in no way be held to be responsible. [41], [44] Lord Kerr stated that the fact that a child is a British citizen also has an independent value, freestanding of the debate in relation to best interests, and this must weigh in the balance in any decision that may affect where a child may live. [46] [47]
Section 133 of the Criminal Justice Act 1988 (s 133) provides that the Secretary of State for Justice shall pay compensation when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. It was enacted to give effect to Article 14(6) of the International Covenant on Civil and Political Rights 1966 (Article 14(6)), which the United Kingdom ratified in May 1976. Article 14(6) also refers to a miscarriage of justice. The principal issue in these appeals was the meaning of this phrase in this context; in particular whether compensation should only be given if someone was subsequently shown conclusively to have been innocent of the offence. The three appellants each claimed compensation following the quashing of their convictions for murder by the Court of Appeal. In each case the claim was refused on the ground that the appellant had not shown that a miscarriage of justice had occurred. In Mr Adams case, it was also refused on the ground that he had not shown that his conviction had been reversed by reason of a new or newly discovered fact. Mr Adams was convicted on 18 May 1993 of the murder of Jack Royal. His conviction was referred to the Court of Appeal in 2007 on the ground that incompetent defence representation had deprived him of a fair trial. His representatives had failed to consider unused material provided by the police which would have assisted in undermining the evidence given by the sole prosecution witness. The Court of Appeal found that if this had been done the jury might not have been satisfied of Mr Adams guilt, although he would not inevitably have been acquitted. Mr McCartney was convicted of the murders of Geoffrey Agate and DC Liam McNulty, and Mr MacDermott that of DC McNulty, on 12 January 1979. The sole evidence was their admissions during interviews with the police. They alleged that these had been made after ill treatment and called other witnesses who claimed to have suffered similar treatment from the same group of police officers. The judge rejected their evidence. He had been told that a prosecution brought against one of these witnesses had not been proceeded with. But he was not told that this was because senior officers in the Department of the Director of Public Prosecutions considered that he had been assaulted by police officers to obtain his confession and that a conviction in another case, based on a confession obtained in similar circumstances and involving one of the same officers, had been quashed. The Court of Appeal in Northern Ireland quashed the convictions of Mr McCartney and Mr MacDermott on 15 February 2007 on the ground that this new evidence left it with a distinct feeling of unease about the safety of their convictions. The Supreme Court unanimously dismisses the appeal of Mr Adams and by a majority (Lord Rodger, Lord Walker, Lord Brown and Lord Judge dissenting) allows the appeals of Mr MacDermott and Mr McCartney. The majority hold that a miscarriage of justice has occurred for the purposes of s 133 when a new or newly discovered fact shows conclusively that the evidence against a defendant has been so undermined that no conviction could possibly be based upon it. Miscarriage of justice Miscarriage of justice was a phrase capable of a number of different meanings. It was useful to consider four categories of cases in which the Court of Appeal would quash a conviction on the basis of fresh evidence: Where it showed a defendant was innocent of the crime (category 1) Where it was such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant (category 2) Where it rendered the conviction unsafe in that, had it been available at the trial, a reasonable jury might or might not have convicted the defendant (category 3) Where something had gone seriously wrong in the investigation of the offence or the conduct of the trial resulting in the conviction of someone who should not have been convicted (category 4) [9] The primary object of s133, and of Article 14(6), was clearly to compensate a person who had been convicted and punished for a crime which he did not commit. A subsidiary objective was not to compensate someone who had in fact committed the crime [37]. Category 4 fell outside this purpose as it dealt with abuses of process so shocking that the conviction should be quashed even if it did not put in doubt the guilt of the convicted person [38]. Category 3 was also outside s 133 because the miscarriage of justice had to be shown beyond reasonable doubt. Category 3 would include a significant number who had in fact committed the offences, as an inevitable consequence of a system which required guilt to be proved beyond reasonable doubt [42]. Category 1 cases were clearly covered by s 133. However, the majority (Lord Phillips, Lord Hope, Lady Hale, Lord Kerr and Lord Clarke) held that the ambit of s 133 was not restricted to category 1 as it would deprive of compensation some defendants who were in fact innocent but could not establish this beyond reasonable doubt. A wider scope was plainly intended at the time of the drafting of Article 14(6). Even though it would not guarantee that all those entitled to compensation were in fact innocent, the test for miscarriage of justice in s 133 (in more robust terms than category 2) was as follows: A new or newly discovered fact will show conclusively that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it [55]. A miscarriage of justice in a case of that kind would be as great as it would have been if he had in fact been innocent, because in neither case would he have been prosecuted at all [102]. Four justices dissented on this issue. Lord Judge considered that the words beyond reasonable doubt in s 133 meant that the miscarriage of justice was the conviction and incarceration of the truly innocent [248]. Lord Brown considered that there was no logical or principled dividing line between categories 2 and 3 [274] and the arguments in favour of an interpretation limited to category 1 were compelling [277]. Lord Rodger agreed with Lord Brown, and Lord Walker agreed with Lord Brown and Lord Judge. Application of s 133 to cases involving a retrial An amendment to s 133 (subsection 5A) which referred to a retrial changed the timetable for a claim for compensation. It did not mean that compensation was payable in every case in which a retrial had been ordered and the defendant then acquitted, as was argued by counsel for the intervener Barry George. The same test was to be applied. The amendment allowed for the possibility that something might emerge in the retrial which would require compensation [104]. New or newly discovered fact Lord Phillips (with whom Lady Hale, Lord Kerr and Lord Clarke agreed) held that the phrase new or newly discovered fact should be interpreted generously in accordance with the effect given to Article 14(6) by legislation in Ireland as including facts the significance of which was not appreciated by the convicted person or his advisers during the trial [60]. Lord Hope disagreed, considering that material disclosed to the defence by the time of the trial could not be said to be new and the focus on the state of mind of the convicted person went too far [107]. Lord Judge (with whom Lords Brown, Rodger and Walker agreed) preferred an approach which coincided with the test for admission of fresh evidence before the Court of Appeal, which required a reasonable explanation for the failure to adduce the evidence at the trial. This had been satisfied by Mr Adams in his case [281]. Disposal of the appeals Mr Adams appeal was unanimously dismissed on the ground that his was a category 3 case and did not fall within s 133. The majority allowed the appeals of Mr McCartney and Mr MacDermott as it had been shown conclusively that the evidence against them had been so undermined that no conviction could possibly be based upon it. The minority would have remitted their cases to the Secretary of State for further consideration in the light of the judgment.
The Appellant made an application for leave to remain as a Tier 2 (General) Migrant in the UK. At the time his application was made, it was supported by a valid certificate of sponsorship (CoS) from his employer, Submania Limited (Submania). However, the Home Office revoked Submanias sponsor licence while the application was outstanding. The Home Office did not inform the Appellant and, three months after revoking Submanias licence, rejected his application on the basis that he no longer had a valid CoS from a licensed sponsor and so he had not fulfilled the conditions for the grant of leave. The Appellant sought an administrative review of the decision to reject his application and a 60 day period to enable him to provide a fresh CoS, but the decision was maintained. The Appellant then applied for judicial review in the Upper Tribunal. The Upper Tribunal dismissed his application, and the Court of Appeal dismissed his appeal, the Court of Appeal holding that the Appellants challenge raised an issue of substantive unfairness. The Appellant appealed to the Supreme Court. The Supreme Court allows the appeal. The Court unanimously holds that the Home Secretary breached her procedural duty to act fairly by failing promptly to notify the Appellant of the revocation of his sponsors licence. The majority of the Justices (Lord Kerr, Lady Black, and Lord Briggs) hold that the Home Secretary was not under a further duty to provide a period of time following notification to enable the Appellant to react to the revocation of his sponsors licence. Lord Wilson and Lady Arden concluded that the law did impose this further duty on the Home Secretary. Lord Briggs would have dismissed the appeal despite the Home Secretarys breach of the duty promptly to notify. Issue (i): Did the Home Secretarys failure promptly to notify the Appellant of the revocation of his sponsors licence breach the duty of procedural fairness? The Court unanimously answers this question yes. Lord Kerr and Lady Black (delivering a joint judgment) consider that it is a self evident aspect of that duty for the Home Secretary to ensure that the Appellant had timely notice that, for a wholly unanticipated reason, his application was bound to fail (carrying potentially devastating consequences). They find that this duty is underpinned by the notion that a person such as the Appellant should be afforded as much opportunity as reasonably possible to accommodate and deal with such a decision [107]. Lord Kerr and Lady Black consider that this duty can be characterised as procedural rather than substantive because it is a negative duty: an obligation not to deprive the Appellant of the chance to avoid, or mitigate the effects of, the Home Secretarys adverse decision on his application [108]. The Appellant would ultimately have to be notified that his sponsors licence had been revoked, and so the duty promptly to notify does not create any novel positive obligations [112]. Nor does the fact that the procedural duty may result in the opportunity to avoid the effect of an adverse outcome affect that conclusion [137 140]. Consequently, the duty arose as a matter of procedural fairness. Lord Briggs agrees that the Home Secretarys failure to notify constituted procedural unfairness, but he does not consider that this breach justifies the Court setting aside the Home Secretarys decision. He considers that the Appellants lost opportunity to improve his position resulted from the Home Secretarys voluntary (and probably unconscious) three month delay in dealing with the application and that, because the delay was a mere happenstance and the Home Secretary was not obliged to give the Appellant any such breathing space, this breach ought not to render the decision unlawful [197]. Issue (ii): Was the Home Secretary under a duty to provide a period of time following notification to enable the Appellant to react to the revocation of his sponsors licence? The majority answer this question no. Lord Kerr and Lady Black consider that the duty to act fairly in the circumstances involves a duty not to deprive, not an obligation to create. To require the Home Secretary to grant a grace period following notification would be to impose a positive duty and an extra extension of leave beyond that set out in the legislation or Immigration Rules [108 109]. This would be a substantive duty, falling outside of the bounds of procedural fairness [108; 141]. Lord Briggs agrees that a duty to provide a grace period following notification would be a substantive duty going beyond that set out in the Immigration Rules [164; 187]. He reasons that, if time is sought to change or improve the underlying facts to make them more favourable, the issue is probably substantive [177]. A grant of time to find new sponsored employment so as to qualify for Tier 2 leave to remain is therefore substantive [180]. So too is a grant of time to prepare for an orderly departure from the UK [178]. Furthermore, the ultimate consequence of the Home Secretarys failure to grant a grace period that the Appellant became an overstayeris itself a matter of substance [183]. Lord Briggs also considers that the duty to provide a grace period would be perhaps a rare example of pointlessness [162] and that the principles that underlie procedural fairness have no application to a situation where the decision is inevitable (as was the outcome of the Appellants original application) [158; 162]. Equally, the collateral advantage of being able to take alternative steps as a lawful migrant while being protected from being an overstayer is not one which procedural fairness is designed to protect [164 165]. Consequently, the Home Secretarys failure to provide a grace period was not challengeable under that head of judicial review (nor any other) [187]. In separate judgments, Lady Arden and Lord Wilson disagree with the majority. Lady Arden holds that the duty falls under procedural fairness because establishing a procedural impropriety is a necessary first step [27 28]. The substantive element in the challenge is a consequence of the procedural fairness argument rather than vice versa [32], and this conclusion is supported both by the fact that the Home Secretarys substantive decision is unchallenged [74] and by the fact that the rule in question is unaffected by the determination of procedural unfairness [75]. Lady Arden also considers that this is not a case of pointlessness: if granted a grace period, the Appellant would have a chance (which may only be small) that he may find a new basis for applying for leave to remain [61]. Rather, it is pointless to impose a duty on the Home Secretary to notify the Appellant promptly if that duty is not accompanied by a grace period giving the Appellant a meaningful opportunity to take steps in light of that notification [72]. She also considers that the opportunity to take any such steps ought not to depend serendipitously on the amount of time that happens to pass between notification and rejection [72]. She agrees with the judgment of Lord Wilson [92]. Lord Wilson agrees with Lady Arden. He holds that the duty of fairness at common law can impose positive obligations [203 204] and that a duty to provide a grace period would not be inconsistent either with the statute or the Immigration Rules [205]. He queries how, without departure from ordinary meaning, the Appellants complaint could be described as not being procedural [208]. Furthermore, he finds that a duty of prompt notification would be to give nothing of value to the Appellant unless accompanied by a duty to provide a grace period and that the law should not impose a duty nor confer a right if they are of no value [217]. He finds that the Home Secretary would have been likely to refuse the Appellants application immediately after notification if it were only subject to a duty of prompt notification [221]. Consequently, he considers that only both dutiestaken togetherwould yield the Appellant a reasonable time within which, while not suffering the serious consequences of being an overstayer, he could seek to vary his leave to remain application or seek leave to remain outside the Immigration Rules [222]. He therefore considers that procedural fairness requires both duties to be imposed.
This appeal concerns two parcels of grazing land one mile east of Rochdale, totalling 26.85 acres, formerly owned by the appellant and which were subject to compulsory acquisition under the North West Development Agency (Kingsway Business Park, Rochdale) Compulsory Purchase Order 2002 (the CPO). Responsibility for paying compensation to the appellant rests with the respondent (the authority), and for which the valuation date was 4 January 2006. In 1999 developers published a KBP Development Framework in support of an application for planning permission, which included a master plan. Planning consents linked to the master plan were granted on 19 December 1999, and remained in force at the date when the parcels fell to be valued. The CPO was then made in 2002. The appellant acquired the land (and an additional adjacent parcel) for a total of 1.3m in May 2003 and its objection to the CPO was rejected, chiefly on the grounds that the land was required for the comprehensive development of the KBP scheme. At the time the land came to be valued, the Statutory Development Plan in force comprised the regional guidance (RPG13) which included the Kingsway Business Park as a strategic regional site and the Rochdale Unitary Development Plan (the 1999 UDP). The law on compensation for compulsory acquisition is found in the Land Compensation Act 1961 (the 1961 Act), with the general compensatory principle found in section 5, rule 2. Also relevant to calculating compensation in this appeal are the provisions on disregards of actual or prospective development (section 6 and Schedule 1), and those on planning assumptions (sections 14 16). These provisions operate alongside the Pointe Gourde rule or no scheme rule that compensation is to be assessed disregarding any increase or decrease in value solely attributable to the underlying scheme of the acquiring authority. The appellant made a claim for 2,593,000 compensation on the basis that the land had significant potential value for residential development, independent of the scheme of acquisition. The respondent, meanwhile, argued that the claim should be limited to the existing use value of approximately 50,000. The Upper Tribunal agreed with the appellant in part, awarding compensation of 746,000 on the basis that there would have been a 50/50 chance of planning permission being obtained in the no KBP world. On the authoritys appeal, however, the Court of Appeal did not accept either partys argument, and remitted the issue for determination on an alternative basis that applied the s.6(1) disregard more widely. The Supreme Court unanimously allows the appeal. Lord Carnwath gives the judgment, with which the other Justices agree. The Court of Appeals approach would seem to require disregarding not just the KBP scheme, but also all the policies past and present which supported development on this land [35]. The Upper Tribunal were clearly entitled to regard the underlying policies as potentially relevant to the prospect of development, apart from the KBP scheme. The assessment of their significance in the no KBP world was pre eminently a matter for the tribunal, which properly took account of the pattern of development on the ground and the long history of identification of this land for development. Their approach did not ignore potential policy objections, and disclosed no error of law [36]. The Court of Appeal was, however, correct to reject the submission that the tribunal should have treated the planning status of the land as conclusively fixed by reference to sections 14 16 of the 1961 Act. That the statutory assumptions are not exclusive is confirmed in section 14(3) of the 1961 Act, itself. They work only in favour of a claimant, and do not deprive him of the right to argue for prospective value under other provisions or the general law [37]. It is well established that the application of the Pointe Gourde rule may result in changes to the assumed planning status of the subject land. Further, there is nothing in section 6 to indicate that a more restrictive approach should be applied under the statutory disregards: the tribunal did no more than emphasise the difference between the statutory tests when it stated that the two stages of the analysis should not be elided [39]. It has also long been accepted that application of the general law may produce a result more favourable to a claimant than the statutory assumptions: the Law Commission has pointed to the two Jelson cases as an example of this, where the Pointe Gourde rule permitted a broader view of the matter [40]. It is hoped that the amendments currently before Parliament in the Neighbourhood Planning Bill will achieve their stated aim of clarifying the principles and assumptions for the no scheme world. Overall, the tribunals application of these complex provisions was exemplary; the appeal should be allowed and the award of the tribunal restored [43 44].
The appeal has proceeded on the basis of assumed facts which include the following. Mr Al Sanea held on trust for Saad Investments Co Ltd (SICL) shares to the value of around US$318m in various Saudi Arabian banks. SICL went into liquidation and Mr Akers is one of its Joint Official Liquidators. Six weeks after the liquidation, Mr Al Sanea transferred the shares to Samba Financial Group (Samba) in discharge of personal liabilities he owed to Samba. It is assumed that (i) the trusts are governed by Cayman Islands law and (ii) the law of Saudi Arabia, where the shares are sited (the lex situs), does not recognise the institution of trust or a division between legal and proprietary interests. In these proceedings brought against Samba, SICL and its Joint Official Liquidators contend that the transfers of shares were and are void under section 127 of the Insolvency Act 1986 as a disposition of the companys property made after the commencement of the winding up. The appeal arises out of Sambas application to stay the proceedings on the basis that Saudi Arabia is a more appropriate forum than England, although this ground has evolved into a case that SICLs claim had no prospect of success. Below, and when the matter first came before the Supreme Court, argument focused on whether an equitable proprietary interest can exist in an asset sited in a jurisdiction which knows no such concept. It appears to have been assumed that, if SICL had such an interest, it was disposed of by Mr Al Saneas transfer of title in the shares to Samba. In the Court of Appeal, detailed submissions were made on the Convention on the Law applicable to Trusts and on their Recognition (the Hague Convention), scheduled to the Recognition of Trusts Act 1987. The Court of Appeal held that as Cayman law, unlike Saudi law, recognised the division of the legal and beneficial interests in shares, the trusts were arguably valid. Following the oral hearing before it, the Supreme Court invited and received two sets of supplementary written submissions focusing more precisely on the ultimately critical question of whether there was any disposition within section 127 even if (i) SICL had equitable interests in the shares and/or (ii) SICL only enjoyed personal rights in respect of the shares. The Supreme Court allows Sambas appeal. The transfer to Samba did not dispose of any rights belonging to SICL within the meaning of section 127. Lord Mance gives the lead judgment, with which Lord Neuberger, Lord Sumption, Lord Collins and Lord Toulson agree. Lord Neuberger, Lord Sumption and Lord Collins also give separate concurring judgments. At common law, the nature of the interest intended to be created by a trust depends on the law governing the trust [17 18]. The lex situs may treat a disposition of shares to a third party as overriding any interest of the beneficiary in the shares. That does not mean, however, that a common law trust cannot or will not exist in respect of those shares [19 21]. A trust may be created, exist and be enforced in respect of assets located in a jurisdiction such as Saudi Arabia, the law of which does not recognise trusts in any form [22 34]. Nothing in the Hague Convention alters this conclusion, unsurprisingly given that one of its aims was to provide for the recognition of trusts in jurisdictions which did not themselves know the institution [39 40]. Lord Collins (with whom Lord Sumption agrees [91]) considers that the case does not raise the interesting and difficult questions on the Hague Convention which were argued at each stage of the proceedings [93 102]. The definition of property in section 436 of the Insolvency Act 1986 is plainly wide enough to embrace both equitable proprietary and purely personal interests [42 43; 60; 87]. The question of whether there was any disposition of these interests is more difficult. It can be argued that the concept extends to misappropriation of assets subject to a trust [45 50] or destruction or extinction of an equitable interest in such assets, but this is not in context the natural meaning [55]. Where a trust exists, the legal and beneficial interests are distinct, and what affects the former does not necessarily affect the latter. Where an asset is held on trust, the legal title remains capable of transfer to a third party, although this undoubted disposition may be in breach of trust. But the trust rights, including the right to have the legal title held and applied in accordance with the terms of the trust, remain. They are not disposed of and continue to be capable of enforcement. If the trust rights are overridden (or, as Lord Neuberger puts it, they are lost or disappear [62]), this is not attributable to the transfer of the legal title. It is because they were protected rights that were always limited and in certain circumstances capable of being overridden by virtue of a rule of law governing equitable rights, protecting in particular bona fide third party purchasers for value (equitys darling) [51 52; 83; 89]. Section 127 enables companies in winding up to recover assets legally owned by them by treating the disposition as void (subject to the courts power to validate the disposition). It is neither aimed at, nor apt to cover, the present situation [53; 56]. Since on the assumed facts Samba gave value in the form of the discharge of Mr Al Saneas debt, its liability to restore the shares depends not on section 127, but on whether it is accountable on the basis of notice [54; 56; 88]. Lord Neuberger considers that the word disposition may in some circumstances embrace destruction or extinction of an interest, notably where there has been a surrender of a lease, contractual rights or a life interest [66 69]. There may also be reasons of policy for concluding that section 127 applies equally in respect of property held for a company by a third party as it does to property which it holds in its own name [70]. However, there are important differences between a surrender and the loss of a beneficial interest on a transfer of the legal estate to a bona fide purchaser for value without notice which would make it unfair for section 127 to apply in the latter as well as former case so as to render the transaction void. Unlike a person taking a surrender of a lease or contractual rights from a company, a bona fide purchaser for value without notice would, by definition, be unaware of both the company (or at least that it had an equitable interest) and of the equitable interest [74 76]. Lord Sumption notes that the law relating to constructive trusts has achieved a high level of development. Its coherence would not be assisted by giving the term disposition a meaning inconsistent with basic principles governing the creation and recognition of equitable interests, founded on a very different balance of the relevant interests [90]. The parties have 21 days to make submissions on the consequences of these conclusions, in particular as to whether the proceedings should be stayed or struck out or remitted to the High Court with a view to possible amendment to enable them to proceed on an alternative basis [57; 92; 103].
This appeal concerns which types of costs incurred in the salvage of a damaged shipping vessel qualify when assessing whether such a vessel is a constructive total loss or not for insurance purposes. Section 60(2)(ii) of the Marine Insurance Act 1906 (the Act) provides that in the case of damage to a shipping vessel, there is a constructive total loss where she is so damaged by a peril insured against that the cost of repairing the damage would exceed the value of the ship when repaired. On 23 August 2012, the Renos, was seriously damaged by an engine room fire while on a voyage in the Red Sea. On the same day, the owners appointed salvors under Lloyds Open Form 2011 (No Cure No Pay). The vessel was towed by the salvors to Adabiya, where her cargo was discharged, and then to Suez, where the salvage services ended. A tug was hired to stand by the vessel while she was at Suez and for onward towing. These proceedings were brought in support of a claim against the hull underwriters for a constructive total loss. Notice of abandonment was served on the insurers on 1 February 2013, while the vessel was at Suez. The Renos was insured at an agreed value of US$12m under a hull and machinery policy subscribed by the appellants (among others). The lead hull and machinery insurer was the first appellant, the Swedish Club. In addition, the Swedish Club alone subscribed an Increased Value Policy against the same risks covering certain charges so far as they exceeded those recoverable under the hull and machinery policy, up to a maximum of US$3m. In the High Court, it was agreed by both sides that there had been an insured loss. The only issue was the amount payable. The insurers acknowledged liability for a partial loss, but did not accept the notice of abandonment or a constructive total loss. Mr Justice Knowles (Knowles J) held that there was a constructive total loss. The Court of Appeal agreed with both his conclusions and his reasons. The insurers now appeal to the Supreme Court. Issue (1) is whether the cost of repairing the damage to the vessel under section 60(2)(ii) includes expenditure already incurred before the service of notice of abandonment. Issue (2) is whether the relevant costs include charges payable to the salvors under the SCOPIC (Special Compensation, Protection and Indemnity) clause of Lloyds Open Form. On issue (1), the insurers argue that any pre notice of abandonment expenditure is excluded. If correct, they would be liable for a partial loss only. As for issue (2), the SCOPIC charges were all incurred before the service of notice of abandonment. If the insurers are right on issue (1), these costs will be disregarded. The judge found that, if so, the repair costs might make the vessel a constructive total loss. The shipowners succeeded on both issues below. The Supreme Court unanimously allows the appeal in part (dismissing it on issue (1), but allowing it on issue (2)). Knowles Js order is set aside and the matter is remitted to him to determine whether there was a constructive total loss. Lord Sumption gives the lead judgment, with which all the Justices agree. Issue (1): Expenditure incurred before notice of abandonment The Supreme Court, agreeing with the courts below, does not accept that expenditure incurred before the service of the notice of abandonment falls outside the scope of costs under section 60(2)(ii). [19] First, as a matter of language, the references in section 60 to expenditure which would be incurred reflect the hypothetical character of the whole exercise and not the chronology of the expenditure [8]. Secondly, as a general rule, the loss under a hull and machinery policy occurs at the time of the casualty and not when the measure of indemnity is ascertained [10]. This rule applies even if the loss developed after the time of the casualty, unless it developed as a result of a second casualty breaking the chain of causation [10]. Constructive total loss is a legal device for determining the measure of indemnity [11]. It is a partial loss which is financially equivalent to a total loss and may be treated as either by the insured [11]. Whether there has been a constructive total loss depends on the objective facts [12]. It follows from this objective approach and the fact that the loss is suffered at the time of the casualty, that the damage referred to in section 60(2)(ii) is in principle the entire damage arising from the casualty from the moment that it happens [13]. The measure of that damage is its effect on the depreciation of the vessel, represented by the entire cost of recovering and repairing it [13]. Thus, it cannot make any difference when that cost was incurred [13]. Service of a notice of abandonment is thus irrelevant [14 18]. Applying this approach, the cost of repairing the damage included all the reasonable costs of salving and safeguarding the Renos from the time of the casualty onwards, together with the prospective cost of repairing her. These costs were not reduced by being incurred before the notice of abandonment and are therefore to be taken into account for the purposes of section 60(2)(ii) of the Act. [19] Issue (2): SCOPIC charges The SCOPIC clause is supplementary to the Lloyds Open Form. The law on salvage was modified by the International Salvage Convention 1989 (the Convention) [21]. Article 8(1)(b) provides that in performing salvage services, a salvor had a duty to exercise due care to prevent or minimise damage to the environment [21]. Article 14(1) entitles the salvors to special compensation from the shipowner amounting to the expenses from performing the article 8(1)(b) duty [21]. Clauses 5 and 6 are the critical parts of the SCOPIC clause. Clause 5 provides for the assessment of the salvors remuneration for the totality of the services provided, including for environmental protection [22]. Clause 6 reflects the fact that such remuneration is intended to avoid environmental damage which would be liability of the shipowner [22]. It is well settled that the cost of repairing the damage in section 60(2)(ii) includes some costs not spent directly on actual reinstatement [24]. The common feature of all the cases in which the cost of preliminary steps have been included is that their objective purpose was to enable the ship to be repaired [25]. That will generally be true of salvage charges, the cost of temporary repairs, towage and other steps plainly preliminary to permanent repair [25]. However, the objective purpose of SCOPIC charges is different. They protect an entirely distinct interest of the shipowner, namely potential liability for environmental pollution [25]. It is irrelevant that a prudent uninsured owner might contract with the same contractors for both purposes [25 26]. It follows that the courts below erred in holding that SCOPIC charges are part of the cost of repairing the damage in section 60(2)(ii) of the Act. [27 28]
The Appellants (Mr and Mrs H) are both British citizens. The United States has requested their extradition under the Extradition Act 2003 to face trial in Arizona on charges of conspiracy and unlawful importation into the United States of chemicals used to manufacture methamphetamine, knowing or having reasonable cause to believe that they would be used for that purpose. The Appellants argue that it would be incompatible with their right to respect for their private and family life under Article 8 of the European Convention on Human Rights for them to be extradited. Mrs H is the mother of six children, of whom the eldest is aged 14 years and the youngest is one year old. Mr H is the father of the four younger children. The Appellants submit that the public interest in giving effect to the extradition request is outweighed by the consequences that this would have for the best interests of their children. Mr H is also the father of two other children, of different mothers. Allegations of sexual abuse of the elder daughter by Mr H when they were living in Arkansas led to her being taken into care for a period of time. Mr H moved to Oklahoma where he could not be prosecuted for offences said to have occurred in Arkansas. In 2004, after Mr H had moved to England and formed a relationship with Mrs H (then Miss S), the High Court in Middlesbrough found that Mr H had indeed sexually abused his eldest daughter on a number of occasions in Arkansas and Texas in 1993 and 1994. It made an order against Mr H that he was to have no contact whatsoever with Miss Ss three elder children. This order was ignored entirely by both Mr H and Miss section The extradition proceedings first came before the sheriff on 31 January 2007 and the Appellants were remanded in custody. They were both released on bail after seven months in custody on 31 August 2007. Mr H was returned to custody on 26 April 2011 after failing to attend a court hearing. Mrs H was again remanded in custody on 29 July 2011 when the Appellants appeals were refused. She was released on bail on 12 August 2011, but Mr H remains in custody. While the Appellants were in custody, the children were looked after by Mrs Hs mother, as well as by other friends and family. Initially following her release, Mrs H visited Mr H in prison with all six children. The number of visits then diminished and only the four younger children now regularly go to the prison with her. The two elder children are reluctant to visit. Within a few weeks of her release from custody, Mr and Mrs Hs relationship broke down. The children were placed on the child protection register in July 2009 as a result of allegations of sexual abuse against Mr H by the nine year old daughter of a neighbour. They were removed from the register in December 2011. But this was on the basis that they would be restored to it if Mr H were to be released from custody and to resume contact with the family. On 29 May 2008 the Scottish Ministers ordered the Appellants to be extradited to the United States. The Appellants appealed to the High Court of Justiciary. The hearing of the appeals was delayed on a number of occasions as a result of changes of legal representation by both Appellants. Mrs Hs appeal was also further delayed by pregnancy complications and the birth of her two youngest children, and by the need for investigations into her mental health. Mr Hs appeal was further delayed by an apparent suicide attempt. The Appellants appeals were dismissed on 29 July 2011. The Supreme Court unanimously dismisses the appeal. The leading judgment is given by Lord Hope. Lord Brown, Lord Mance, Lord Judge and Lord Wilson give short concurring judgments. There is no appeal to this court against the determination of the High Court of Justiciary under the 2003 Act. But the Appellants are entitled to exercise their right of appeal under Scotland Act, as the question whether it could be incompatible with article 8 for them to be extradited raises a devolution issue. So the appeal is competent. The offences that have been alleged against the Appellants are very serious, attracting penalties of up to 20 years imprisonment. The allegation is of a sustained and deliberate course of unlawful conduct, during which the Appellants are said to have sold around $133,000 worth of chemicals to about 400 customers in the United States over a two year period [22 23]. Great weight must be given to the public interest in giving effect to a request for extradition. The more serious offence the greater will be that weight. The approach to Article 8 rights in extradition cases need not be radically different from that adopted in deportation or expulsion cases. Where, as here, the family life of children is involved, the best interests of the children are a primary consideration. The question is therefore: Is the Article 8 right outweighed by the strength of any other considerations? [49]. In view of the likely length of their sentences following conviction, and the lack of certainty as to the possibility of a transfer to prison in Scotland, the prospect has to be faced that in the event of conviction the Appellants are likely to be kept apart from their children, and their children perhaps apart from each other, for a very long time [53]. In relation to Mr H, the childrens family relationship with him has effectively been brought to an end by the breakdown of the parents relationship; the two elder childrens refusal to visit him in prison; the 2004 order that he have no contact with Mrs Hs three elder children; and the placing of all six children on the child protection register from July 2009 to December 2011. The prospect of their ever resuming family life together is remote. The argument that it would be contrary to their best interests for him to be extradited is, at best, very weak. Mr Hs case does not come close to meriting his discharge under section 87(2) of the 2003 Act [53 54]. Mrs Hs case is more difficult. The childrens best interests clearly lie in continuing to live with their mother. There is a risk that they will be taken into care after she is extradited and that, if this happens, they will no longer be able to live together. Resuming family life after a prolonged separation is likely to be very difficult. The gravity of the situation is compounded by the fact that the children are, for practical purposes, now fatherless [57]. On the other hand there is no escape from the fact that the crimes alleged, which were persisted in over a substantial period, are very serious. The interests of justice must be given effect to. It is well established that extradition may amount to a justified interference under Article 8(2) if it is in accordance with the law, is pursing the aims of the prevention of crime or disorder and is necessary in a democratic society. If there are grounds for leniency, or for mitigation of sentence on the grounds of her family circumstances, it is for the authorities in the United States, not for this court, to make that assessment [58 59]. Cases where both parents of young children are at risk of being extradited may be regarded as being of an exceptional character, so the court must be satisfied that the interests of justice cannot be served equally well by prosecuting the parents in this country[60 & 65]. However, there are strong practical reasons for concluding that the United States, where most of the witnesses reside and the degree of criminality involved is best assessed, is the proper place for the Appellants to be tried. Taking all of the relevant considerations into account, it would not be appropriate for the Appellants to be tried here. Nor would it be acceptable for Mrs H not to be prosecuted at all for the crimes with which she has been charged. And it would not be sensible to prosecute Mrs H here while sending Mr H to the United States for prosecution. The proper forum in which both prosecutions should be brought is the United States. The best interests of the children, even when weighed together with Mrs Hs own Article 8 right to respect for her family life with them, are not strong enough to overcome the overwhelming public interest in giving effect to the extradition request [70 71].
Between January and March 2011 the respondents, Mr and Mrs Al Malki, employed Ms Reyes as a domestic servant at their London residence. Mr Al Malki was a member of the diplomatic staff of the Saudi Arabian embassy in London. In June 2011, Ms Reyes began proceedings in the Employment Tribunal. She alleges that Mr and Mrs Al Malki mistreated her in the course of her employment and that she is a victim of trafficking. Those allegations are yet to be determined at trial. The Court of Appeal held that the Employment Tribunal lacked jurisdiction because Mr Al Malki was entitled to diplomatic immunity under article 31 of the Vienna Convention on Diplomatic Relations 1961 (the Convention), which is incorporated into the law of the United Kingdom by section 2(1) of the Diplomatic Privileges Act 1964. Under article 37(1) of the Convention, Mrs Al Malki therefore benefited from immunity as his family member. Mr and Mrs Al Malki then left the United Kingdom when Mr Al Malkis posting came to an end. Ms Reyes appealed to the Supreme Court, contending that the Employment Tribunal has jurisdiction to hear her claims under the exception, contained in article 31(1)(c) of the Convention, to the general rule of diplomatic immunity. Mr and Mrs Al Malki cross appealed, contending that they were never validly served with the claim form. Two parties intervened: the Secretary of State for Foreign and Commonwealth Affairs and Kalayaan, a charity which supports migrant domestic workers including victims of trafficking. The Supreme Court unanimously allows the appeal and dismisses the cross appeal. Lord Sumption gives the lead judgment, with which Lord Neuberger agrees. Lord Wilson gives a separate judgment in which he concurs with that of Lord Sumption, save in respect of one point. Lady Hale and Lord Clarke agree with the judgment of Lord Wilson. Diplomatic immunity is not an immunity from liability. It is immunity from the jurisdiction of the courts of the state which hosts the diplomat (the receiving state) [7 9]. The claim form was served validly, without violating the protections conferred on diplomats and their residences respectively by articles 29 and 30 of the Convention: the service of a claim form by post does not involve any trespass against the diplomats person or residence; it merely conveys information [13 16]. The Convention draws a fundamental distinction between the acts of a diplomat which are performed in the exercise of an official function and those which are not. The former are immune because they are committed on behalf of a state. The immunity of the latter is justified on the pragmatic basis that it facilitates diplomatic relations. Article 31(1) confers diplomatic immunity on both types of acts, subject to specified exceptions. Once a diplomats posting has come to an end, his or her immunity after leaving the receiving state is ordinarily limited to a residual immunity under article 39(2). That residual immunity applies only to acts performed the exercise of official functions [17 18]. Acts performed in the exercise of a diplomats official functions are limited to acts which are part of the diplomatic functions of the diplomatic mission, performed on behalf of the state which that diplomat represents [20]. Mr and Mrs Al Malki left the United Kingdom at the end of Mr Al Malkis posting, so the only potentially relevant immunity is the residual immunity in respect of official acts. The employment of Ms Reyes to carry out domestic tasks in the residence of Mr and Mrs Al Malki was not an act in the exercise of the diplomatic functions of the mission. Nor was it done on behalf of Saudi Arabia, even though it assisted Mr Al Malki in the performance of his official functions. It was not there the exercise of an official function. Consequently, neither Mr Al Malki nor Mrs Al Malki may rely on that residual immunity [48]. The appeal is therefore allowed. Unless within 21 days the parties in writing justify an alternative, the case will be remitted to the Employment Tribunal to be determined at trial [54 55]. Lord Sumption, with whom Lord Neuberger agrees, expresses the view (obiter) that Mr Al Malki would have been entitled to immunity under article 31(1) if he had still been in post. Ms Reyes sought to rely on an exception to article 31(1), set out in article 31(1)(c). That exception applies in civil claims relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. Lord Sumption would have concluded that the acts alleged do not constitute the exercise of a professional or commercial activity [51]. Lord Sumption reasons that: (i) the wording of the exception envisages a diplomat who also conducts a business, practises a profession, or similar [21(1) (3)]; (ii) the drafting history of the Convention confirms that this was the drafters intention [21(4), 34 38]; (iii) the reasoning in case law from the United States supports that interpretation [22 25]; (iv) the reasons for the exception are obvious: nothing in the concept of diplomatic immunity requires it to protect a diplomats private business activities, in competition with others, from business related claims [21(5)]; (v) a wide interpretation of the exception risks exposing diplomats to liability in respect of everyday transactions, undermining the carefully constructed scheme of immunities under the Convention [21(6)]; (vi) nothing in the Convention nor in wider international law justifies interpretation of the Convention with reference to the International Protocol to Prevent, Suppress and Punish Trafficking in Persons (Palermo, 2000) (the Palermo Protocol) and nothing in the Palermo Protocol would require a different interpretation of article 31(1)(c) [41 47]. Lord Wilson, with whom Lady Hale and Lord Clarke agree, welcomes the lack of any binding decision as to whether Mr Al Malki would have been immune, had he remained in his post. In his view the answer is not obvious [57]. This is because: (i) the exploitation of migrant domestic workers by diplomats is a significant problem [59]; (ii) there is a global determination to combat human trafficking [60]; (iii) the employment of trafficked persons may form part of the wider commercial activity of trafficking [61 62]; (iv) the absence of state immunity in similar cases is difficult to reconcile with recognition of diplomatic immunity in this case [63] [64]; (v) it is not clear how recognition of Mr Al Malkis immunity would further the stated purpose of the Convention [66]. Lord Wilson disagrees with Lord Sumptions opinion that it was inappropriate to construe article 31(1)(c) in the light of the more recent international condemnation of human trafficking [67]. He invites the International Law Commission to consider amendment of the Convention [68].
The two appeals concern whether, and if so, in what circumstances, an order or judgment of a foreign court in proceedings to set aside prior transactions, such as preferences or transactions at an undervalue (avoidance proceedings), will be recognised and enforced in England and Wales. The appeals also raise the question of whether enforcement may be effected through the international assistance provision of the UNCITRAL Model Law implemented by the Cross Border Insolvency Regulations 2006, which apply generally, or the assistance provisions of s.426 of the Insolvency Act 1986 (the Insolvency Act), which applies to a limited number of countries, including Australia. In Rubin a judgment of the US Federal Bankruptcy Court for the Southern District of New York in default of appearance for around US$10m in respect of fraudulent conveyances and transfer was enforced in England at common law. In New Cap, bound by the prior decision in Rubin, a default judgment of the New South Wales Supreme Court for about US$8m in respect of unfair preferences under Australian law was enforced under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (1933 Act) and, alternatively, pursuant to the Insolvency Act. In both appeals the parties against whom the judgments were made were neither present in the foreign country nor had they submitted to the jurisdiction. Since both judgments were in personam, the essential issue was whether the existing principles were applicable or whether the Court should adopt separate rules for judgments in personam in avoidance proceedings, where the judgments were central to the purposes of the insolvency proceedings or part of the mechanism of collective execution. The Supreme Court by a majority of 4:1 (Lord Clarke dissenting) allowed the appeal in Rubin holding that there should not be special rules for avoidance judgments but dismissed the appeal in New Cap on the ground that the Syndicate submitted to the jurisdiction of the Australian Court. Lord Collins gave the leading judgement. Broadly, under both the common law and the 1933 Act, a foreign court has jurisdiction to give a judgment in personam capable of recognition and enforcement against the person whom the judgment was given if the person (i) was present in the foreign court when proceedings were instituted; (ii) was a claimant, or counterclaimed, in the foreign proceedings; (iii) submitted to the jurisdiction of the foreign court by voluntarily appearing in the proceedings; or (iv) agreed to submit to the jurisdiction of the foreign court before the commencement of the proceedings. As a matter of policy, the Court did not agree that, in the interests of the universality of bankruptcy and similar procedures, there should be a more liberal rule for judgments given in foreign insolvency proceedings for the avoidance of transactions. [115] A different rule for avoidance proceedings would mean courts would have to develop two aspects of jurisdiction: a requisite nexus between the insolvency and the foreign court and a requisite nexus between the judgment debtor and the foreign court. [117] Such a change would not be an incremental development of existing principles but a radical departure from substantially settled law, and more suitable for the legislature than judicial innovation. The restricted scope of the existing rules reflects the fact that there is no expectation of reciprocity on the part of foreign countries. [128 29] Expanding the principal would also be detrimental to United Kingdom businesses without any corresponding benefit. [130] Nor would any serious injustice result from adhering to the traditional rule. There were several other avenues open to officeholders. Rubin, for example, could have been founded on proceedings by trustees in England for the benefit of creditors under an express trust, and avoidance claims by the liquidator of an Australian company may be the subject of a request by the Australian court under the Insolvency Act. [131] Lord Collins (with the agreement of Lord Walker and Lord Sumption) held that the earlier Privy Council decision in Cambridge Gas Transportation Corporation v Official Committee of Unsecured Creditors of Navigator Holdings plc [2007] 1 AC 508 was wrongly decided as there was no basis for the recognition of the US Bankruptcy order in the Isle of Mann in that case. [132] Whilst agreeing it was distinguishable, Lord Mance reserved judgment on whether it was wrongly decided. [178] As for enforcement under the Cross Border Insolvency Regulations 2006, there was nothing expressly or by implication in the UNICTRAL Model Law that applied to the recognition or enforcement of foreign judgments against third parties. [142 44] In relation to New Cap, Lord Collins concluded that the Syndicate had submitted to the jurisdiction of Australia having chosen to prove in New Caps Australian insolvency proceedings. It should not be allowed to benefit from the insolvency proceeding in this way without the burden of complying with orders made in that proceeding. [156 167] In these circumstances, the 1933 Act would apply to the Australian judgment and enforcement should be by way of registration under the 1933 Act rather than by the common law. In view of the conclusion that the Syndicate submitted to the Australian jurisdiction, the issue of enforcement under the Insolvency Act did not arise. However, Lord Collins expressed the opinion that the relevant subsections of the Insolvency Act were not concerned with enforcement of judgements having examined their construction and the statutory history. [152 154] Lord Clarke dissented on the Rubin appeal. He relied on the principle that avoidance orders made by a foreign courts in bankruptcy proceedings (personal or corporate), which the court has jurisdiction to entertain, were enforceable if it could fairly be said to have been made in personam or in rem. [193] It was possible to have a rem order incidental to bankruptcy proceedings but which is enforceable at common law, provided that the bankruptcy court has jurisdiction in the bankruptcy [195 6]. Avoidance orders are central to bankruptcy proceedings. To allow for their enforcement was in keeping with the principle of modified universalism requiring English courts, so far as is consistent with justice and UK public policy, to co operate with the courts in the country of the principal liquidation to ensure a companys assets are distributed to the creditors under a single system of distribution [199]. This would be worked out on a case by case basis depending on the facts of the particular case. [200 1]
These two appeals were heard together because both raise issues arising from claims of indirect discrimination on grounds of race and/or age and/or religion. Indirect discrimination occurs when an employer applies a provision, criterion or practice (PCP) both to people who have and people who do not have the protected characteristic in question but which puts people with that characteristic at a particular disadvantage when compared with others and puts, or would put, the individual at that disadvantage, unless the employer can show that the PCP is a proportionate means of achieving a legitimate aim. Mr Essop is the lead appellant in a group of 49 people, six of whom have been chosen as test cases. They are, or were, all employed by the Home Office. They were required to pass a Core Skills Assessment (CSA) as a pre requisite to promotion to certain civil service grades. A report in 2010 established that Black and Minority Ethnic (BME) candidates, and older candidates, had lower pass rates than white and younger candidates. No one has been able to identify why this is. The appellants issued claims alleging that the requirement to pass the CSA constituted indirect discrimination on the grounds of race or age. The Home Office argued that section 19(2)(b) of the Equality Act 2010 required the appellants to prove the reason for the lower pass rate. The Court of Appeal agreed, upholding the decision of the Employment Judge. Mr Naeem is an imam who works as a chaplain in the Prison Service. Before 2002, Muslim chaplains were engaged on a sessional basis only, because it was believed that there were too few Muslim prisoners to justify employing them on a salaried basis as some Christian chaplains were. Mr Naeem worked on a sessional basis from 2001 but in 2004 became a salaried employee. At this date the pay scheme for chaplains incorporated pay progression over time. The average length of service of Christian chaplains was longer which led to a higher average basic pay. Mr Naeem argued that the incremental pay scheme was indirectly discriminatory against Muslim or Asian chaplains, resulting in lower pay in a post where length of service served no useful purpose as a reflection of ability or experience. Mr Naeems claim was rejected by the Employment Tribunal which found that the indirect discrimination was justified. The Employment Appeal Tribunal held that the scheme was not indirectly discriminatory at all because chaplains employed before 2002 should be excluded from the comparison between the two groups. The Court of Appeal held that it was not enough to show that the length of service criterion had a disparate impact upon Muslim chaplains: it was also necessary to show that the reason for that disparate impact was something peculiar to the protected characteristic of race or religion. The Supreme Court unanimously allows the Essop appeal. It remits the claims to be determined by the Employment Tribunal in accordance with the judgment. It unanimously dismisses Mr Naeems appeal. Lady Hale, with whom all the other Justices agree, gives the only judgment. The concept of indirect discrimination has following salient features: There has never been any express requirement for an explanation of the reasons why a particular PCP puts one group at a disadvantage when compared with others. It is enough that it does [24]. Indirect discrimination, unlike direct discrimination, does not require a causal link between the characteristic and the treatment but does require a causal link between the PCP and the particular disadvantage suffered [25]. The reason for the disadvantage may not be in itself unlawful, or within the control of the employer, but both the PCP and the reason for the disadvantage must be but for causes of the disadvantage [26]. The PCP need not put every member of the group sharing the protected characteristic at a disadvantage. In the Essop case, it was irrelevant that some BME or older candidates could pass the CSA: the group was at a disadvantage because the proportion who could pass was smaller than the proportion of white or younger candidates [27]. It is commonplace for the disparate impact, or particular disadvantage, to be established on the basis of statistical evidence [28]. It is always open to a respondent to show that the PCP is justified. There may well be a good reason for it. A wise employer will, however, try to see if PCPs which do have a disparate impact can be modified to remove that impact while achieving the desired result [29]. The disadvantage suffered by the individual must correspond with the disadvantage suffered by the group. The disadvantage in Essop was that members of the group failed the CSA disproportionately and the appellants suffered this disadvantage. However, a candidate who fails the CSA because he did not prepare or did not turn up for or finish the CSA has not suffered harm as a result of the PCP in question and in such a case it is open to the respondent to show that the causal link between the PCP and the individual disadvantage is absent. The Essop appeal is therefore allowed and the claims are remitted to the Employment Tribunal [30 36]. In Mr Naeems case the reason why the pay scale puts Muslim chaplains at a disadvantage is known. It is because they have on average shorter lengths of service than Christian chaplains [37]. The Court of Appeal was wrong to require the reason to relate to the protected characteristic [39]. The pool of comparators comprises all workers affected by the PCP in question. In this case the incremental pay structure affected all chaplains in the Prison Service and this did put the Muslim chaplains at a disadvantage compared with the Christians [42]. As regards justification, it was not in dispute that the pay scheme had a legitimate aim but the means adopted needed to be proportionate. The Employment Tribunal found as a fact that six years was the most required for newly appointed chaplains to have the skills and experience for reward at the top of the scale, but that in the circumstances the disadvantage suffered by Mr Naeem was no more than was necessary as the transition to a new shorter pay scale took its course. This was the correct test. It is not open to the courts on an appeal to disturb that finding, even if there were alternative means to reduce the disadvantage more quickly which could have been considered [43 47]. Mr Naeems appeal is therefore dismissed.
The issue in this appeal is whether the High Court of England and Wales has jurisdiction to order the return to this country of a small child who has never been present here on the basis that he is habitually resident here or that he has British nationality. The child, called Haroon in the judgment, was born on 20 October 2010 in Pakistan. His father was born in England and his mother in Pakistan. They married in Pakistan in 1999 and lived in England from 2000. They have four children: two daughters, born in 2001 and 2002, and two sons, one born in 2005 and Haroon. The father and the first three children, who were born in England, have dual British and Pakistani nationality and the mother has indefinite leave to remain in the United Kingdom. From 2006 the father began to spend a lot of time in Pakistan. The marriage was unhappy and in 2008 the mother moved into a refuge with her three children complaining of abuse. The mother arranged a three week trip to Pakistan in October 2009, in order to visit her father with the children. When she was there she was put under pressure by her father, her husband and his family to reconcile with her husband and was forced to give up the childrens passports. She strongly wished to return to England and telephoned the refuge asking for their help to return from February 2010, when she became pregnant with Haroon. Eventually in May 2011 her family helped her to return to England without the children and she began proceedings for their return in the High Court. On 20 June 2011 all four children were made wards of court and the father was ordered to return them forthwith. The father challenged the jurisdiction of the court to make orders for the return of the children. The judge found that all four children were habitually resident in England and Wales as the mother had not agreed that the children should live in Pakistan. The older children had retained their habitual residence in England. Haroon had habitual residence because he was born to a mother who was being kept in Pakistan against her will. The Court of Appeal by a majority allowed the fathers appeal in relation to Haroon only, on the ground that habitual residence was a question of fact (rather than deriving from the habitual residence of the parents) and required physical presence in the country. The Supreme Court unanimously allows the mothers appeal and holds that the court had inherent jurisdiction to make the orders in this case on the basis of Haroons British nationality. The case is however remitted to the judge to consider as a matter of urgency whether it is appropriate to exercise this exceptional jurisdiction. Lady Hale gives the main judgment, with which Lord Wilson, Lord Reed, and Lord Toulson agree. Lord Hughes gives an additional judgment explaining why he would have held that Haroon was habitually resident in the circumstances of this case. The orders exercising the courts wardship jurisdiction in this case did not fall within Part 1 of the Family Law Act 1986 (the 1986 Act) [26 28]. They did relate to parental responsibility within the scope of Council Regulation (EC) No 2201/2003 (the Brussels II revised Regulation)(the Regulation) [29], which applied regardless of whether there was alternative jurisdiction in a non member state [33]. The question was whether there was jurisdiction under article 8 of the Regulation, which depended on where the child was habitually resident [34]. Habitual residence is a question of fact and not a legal concept such as domicile. It is desirable that the test for habitual residence be the same for the purposes of the 1986 Act, the Hague Child Abduction Convention and the Regulation, namely that adopted by the Court of Justice of the European Union (CJEU)for the purposes of the Regulation [35 39]. The CJEU has ruled that habitual residence corresponds to the place which reflects some degree of integration by the child in a social and family environment. This depends on numerous factors including the reasons for the familys stay in the country in question [54]. Four of the justices held that presence was a necessary precursor to residence. A child could not be integrated into the social environment of a place to which his primary carer had never taken him. Lord Hughes, by contrast, would have held that in these circumstances the child acquired the habitual residence of his mother. The CJEU had not had to consider a case with facts as stark as this, where the only reason that the child had been born in a particular place was because the mother had been deprived of her autonomy to choose where to give birth, and if it had been necessary to decide the appeal under the Regulation, the Supreme Court would have made a reference to it [58]. There was however another basis of jurisdiction which was open to the court to exercise in this case. By Article 14 of the Regulation, the common law rules as to the inherent jurisdiction of the High Court continue to apply if the child is not habitually resident in a Member State. The Crown retained the ancient power as parens patriae over those who owe it allegiance as British nationals. For most types of order this jurisdiction was removed by the 1986 Act but not for the order for return made in this case [60]. The judge below did not address herself to this basis of jurisdiction and whether it would be appropriate to exercise it. The case should be remitted to the High Court for it to be considered, in the light of the particular circumstances of this case [64 65]. If the court declined to exercise this jurisdiction, it would remain open to the mother to seek a reference to the CJEU on the issue of habitual residence [67]. Lord Hughes in an additional judgment did not accept that it was a minimum legal requirement of habitual residence that there had at some time been physical presence. This was tantamount to a rule when a purely factual enquiry was required. With a very young child the important environment was essentially a family one. Haroons family unit had its habitual residence in England. He therefore would have held that Haroon was habitually resident in England and Wales [93].
This appeal concerns the manner in which a court should calculate the amount of money, if any, that a person who has been unjustly enriched by the receipt of services must pay to the provider of those services by way of restitution. Alessandro Benedetti is an Italian citizen who lives in Switzerland. Naguib Sawiris is the CEO of Orascom Telecom Holding SAE (Orascom), a company incorporated in Egypt which operates a telecommunications business in the Middle East, Africa and South East Asia. He owns a company incorporated in the British Virgin Islands called Cylo Investments Ltd (Cylo). Mr Sawiris brother and father established companies incorporated in the Cayman Islands called April Holding and OS Holding (collectively, the Holding Companies), which hold assets for the benefit of Mr Sawiris wider family. In 2002, Mr Benedetti became aware that Enel SpA, the largest energy company in Italy, was contemplating a sale of its subsidiary, Wind Telecomunicazioni SpA (Wind). In December 2002, Mr Benedetti sought to persuade Mr Sawiris to invest in the acquisition of Wind. Mr Benedetti and Mr Sawiris signed a contract in January 2004 (the Acquisition Agreement) pursuant to which Wind would be acquired via a new company, Rain Investments SpA (Rain), the shares of which would be owned by Mr Sawiris and Mr Benedetti in a ratio of 2:1. The negotiations were to be handled by Mr Benedetti, with the support and advice of Mr Sawiris. Both parties were to use their best endeavours to obtain funding from third parties for the acquisition of Wind. Provision was made in the Acquisition Agreement for Mr Benedetti to receive remuneration for his services. Messrs Benedetti and Sawiris, however, were unable to secure sufficient funding from third parties for the acquisition of Wind to proceed as intended. Mr Benedetti and various potential third party investors sought to acquire Wind via a newly incorporated company called Weather Investments SpA (Weather I). One of the potential third party investors lost interest in that deal and 99% of the shares in Weather I were transferred to Mr Sawiris on 25 March 2005, via Mr Benedetti. On the day before that transfer took place, Mr Benedetti, as a director of Weather I, opportunistically made agreements with his own companies without the knowledge of Mr Sawiris. One of those agreements (the First Brokerage Agreement) was made with International Technologies Management Ltd (ITM). Pursuant to the First Brokerage Agreement, dated 24 March 2005, Weather I appointed ITM to provide brokerage services in return for a payment of around 87 million (0.7% of the ultimate cost of the acquisition of Wind). It became necessary for the funds for the acquisition of Wind to be provided by Mr Sawiris, Cylo and the Holding Companies. A deal was signed, with the assistance of Mr Benedetti, on 26 May 2005. Enel and its holding company, Enel Holding BV, entered into a sale and purchase agreement (the SPA) pursuant to which the majority of the shares in Wind were sold to Cylo and the Holding Companies (via a company called Weather Investments Srl (Weather Italy), of which Mr Benedetti was a director) for over 3 billion. The transaction was completed in two stages, on 11 August 2005 and 8 February 2006. Mr Benedetti did not have a beneficial interest in any company which acquired an interest in Wind. On the same day as the signing of the SPA, the rights and liabilities of Weather I, including its obligations to ITM under the First Brokerage Agreement, were transferred to Weather Italy. That was effected by Mr Benedetti, as a director of all three companies, without the knowledge of Mr Sawiris. Mr Sawiris, after discovering the existence of the First Brokerage Agreement, believed that the 87 million brokerage fee to be paid to ITM was needed in order to discharge Mr Benedettis liabilities to third parties who had assisted in the acquisition of Wind. Mr Sawiris suspected that the sum would be kept by Mr Benedetti personally and was unhappy about the size of the sum. Mr Sawiris asked for the brokerage fee to be reduced and, in June 2005, suggested a payment of 75.1 million. Mr Benedetti would not agree to that sum. In July 2005, however, an agreement between Weather Italy and ITM (the Revised Brokerage Agreement), backdated to 26 May 2005, provided that ITM would receive a brokerage fee of 67 million (i.e. 0.55% of the value of the transaction). That sum was paid to ITM on 12 August 2005. Mr Benedetti brought numerous claims against Mr Sawiris, Cylo and the Holding Companies, including a claim for unjust enrichment (on the basis that the consideration for the services that he had provided had failed). All of Mr Benedettis claims were dismissed except the unjust enrichment claim, for which Mr Benedetti was awarded 75.1 million. Mr Sawiris, Cylo and the Holding Companies were held to be jointly and severally liable for that sum, which was calculated on the basis of the offer made by Mr Sawiris to Mr Benedetti in June 2005. The Court of Appeal held that the Holding Companies had not been unjustly enriched by any services received from Mr Benedetti, and further held that Mr Sawiris and Cylo were jointly and severally liable to Mr Benedetti for only of 14.52 million. That sum was based on the conclusion that the market value of the services provided by Mr Benedetti to Mr Sawiris was 36.3 million and Mr Benedetti had already been paid for 60% of those services. The Court of Appeal took the view that the Acquisition Agreement and Mr Sawiriss offer of 75.1 million in June 2005 were irrelevant to the calculation of the sum due to Mr Benedetti. In his appeal to the Supreme Court, Mr Benedetti argues that the sum to be awarded to him should be based on the terms of the Acquisition Agreement or, alternatively, on the offer made by Mr Sawiris in June 2005. Mr Sawiris and Cylo cross appealed, arguing that Mr Benedetti was not entitled to anything because they had already fully paid Mr Benedetti for his services. Mr Benedetti initially asked the Supreme Court to rule that the Holding Companies were jointly and severally liable with Mr Sawiris and Cylo, but he abandoned that part of his appeal before the hearing. The Supreme Court unanimously dismisses Mr Benedettis appeal and allows Mr Sawiris cross appeal. Lord Clarke gives the leading judgment. Where a restitutionary award is made on the basis of unjust enrichment, it is to be calculated as the value of the benefit received by the defendant at the expense of the claimant [10 14]. Where the benefit takes the form of services, that will normally be the market value of the services performed [15 16, 100 103, 180]. The market value may depend on the personal characteristics of the defendant, such as his buying power in the relevant market [17, 101, 184]. Lord Clarke (with whom Lords Kerr and Wilson agree) suggests that the sum to be awarded to a claimant can be reduced on the basis that the defendant subjectively valued the services that he received at less than the market value (subjective devaluation) [18, 187]. Lord Reed suggests that that is not permissible [113, 123, 137], and Lord Neuberger prefers not to express a concluded view on the issue [188, 192]. That difference of opinion is likely to be significant in very few cases, and it is unnecessary to resolve the debate for the purposes of this case [25 26, 119, 188 189]. It is not, however, possible (save perhaps in exceptional circumstances) to increase the amount awarded to a claimant on the basis that he valued the services at more than the market price (subjective revaluation) [29, 30, 34, 115, 198]. The Acquisition Agreement is not relevant to the calculation of what, if any, sum Mr Sawiris and Cylo have to pay to Mr Benedetti. The parties abandoned the Acquisition Agreement after it proved difficult to find third party investors. It is not, therefore, appropriate to have regard to that contract in determining the sum, if any, to which Mr Benedetti is entitled for the services that he performed [41, 42, 85]. The trial judge found that Mr Bendetti performed the role of a broker or adviser and, on that basis, the market value of the services that he provided was 36.3 million. There is no basis for challenging those findings. However, the Court of Appeal was right to conclude that the judge fell into error in awarding Mr Benedetti more than the market value of his services based on Mr Sawiris offer in June 2005. That offer is not relevant to the calculation of what, if any, sum Mr Sawiris and Cylo have to pay to Mr Benedetti because subjective revaluation is not permissible, save perhaps in exceptional circumstances. In any event, the offer of 75.1 million made by Mr Sawiris in June 2005 did not represent his genuine view of the value of Mr Benedettis services; the offer was considered by Mr Sawiris to be generous and was made under the shadow of threatened litigation. There is no reliable evidence of Mr Sawiriss genuine opinion as to the value of Mr Benedettis services [44, 56, 66, 173]. The Court of Appeal was wrong to award Mr Benedetti 14.52 million. The market value of his services was 36.3 million and, as the trial judge found, he has already received 67 million (via ITM). The trial judge gave no reasons for saying that the payment of 67 million related only to 60% of Mr Benedettis services, and it was inconsistent with some of his other conclusions, such as the fact that all of Mr Benedettis services fell within the scope of his role as a broker/adviser and that his services would normally be paid for by way of a single payment representing a percentage of the value of the transaction. Furthermore, all of Mr Benedettis services had been provided before the date on which the Revised Brokerage Agreement was signed. That agreement was expressed to cover services performed by Mr Benedetti in the past as well as in the future, but there were no further services to be performed by him at that date. The payment of 67 million, therefore, covered all of the services provided by Mr Benedetti [72 78, 94 95]. Lord Neuberger agrees that the cross appeal should be allowed but takes the view that the payment of 67 million to ITM was not attributable to the Revised Brokerage Agreement at all [211].
The question in this appeal is whether, in the period 1 October 2002 to 5 December 2005, the takings from slot machines (the disputed machines) operated by the appellants (Rank) were subject to Value Added Taxation (VAT). If the takings resulted from the provision of a gaming machine, as defined, then they were subject to VAT. The disputed element of the definition of gaming machine was: the element of chance in the game is provided by means of the machine. If this was not satisfied, then the takings from the disputed machines were exempt from VAT. The disputed machines were computerised. The machines typically pay out according to the symbols on the machine when it stops. The positions the reels come to rest on are chosen by a Random Number Generator (RNG), which is the system for producing numbers for the machines software. The RNG is constantly generating random numbers. As soon as the lever is pulled or the button is pressed, the most recent random number is used to determine the result. This means that the result varies depending on exactly when the game is played. It was common ground that a slot machine is a gaming machine for VAT purposes when the element of chance is provided by a component that forms part of the body of the machine on which the game is played. This appeal concerned multi terminal systems. In each case the RNG might be housed in a separate box or hung on the wall, but was connected by a wire to the playing terminals. Up to six playing terminals might be served by a single remote RNG. Each terminal was designed to be used with the RNG obtained from the manufacturer of the terminal, the terminals and RNGs were sold together, and each RNG was manufacturer specific. Though linked to a single RNG, each terminal could be operated independently and could offer the same or different games. The VAT and Duties tribunal concluded, in favour of Rank, that the disputed machines were not gaming machines because the RNG was not part of any terminal and the element of chance was not provided by the machine containing the slot. The High Court agreed. The Court of Appeal overturned this decision; Rimer LJ considered that each terminal and the single RNG could together constitute a machine. Rank appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the judgment of the Court with which Lord Neuberger, Lord Reed, Lord Toulson and Lord Hodge agree. The question is how the element of chance is provided in the game; the definition implies an active function in the game as it is played, rather than the mere passive transfer of information to the player. No one suggested any good policy reason for distinguishing between on the one hand, embedded software or a single terminal RNG, and on the other a multi terminal RNG. [22 23] The natural meaning of machine in context supports the Court of Appeals approach. A typical and accurate definition from the Concise Oxford English Dictionary is an apparatus using or applying mechanical power, having several parts, each with a definite function and together performing certain kinds of work. The overall purpose is the creation of a game of chance for the player, in which purpose both the terminal and the RNG play, and are designed to play, essential and connected functions. The tribunals approach limits attention to the physical identity of the equipment as viewed by the player, but ignores the necessary components of the task which the equipment is performing. The terminal is useless for playing the game without the RNG. Where the RNG is linked to a single terminal, the tribunal saw nothing wrong in principle in viewing them as together being a single machine for playing the game. Similarly, where the RNG serves several terminals, it is appropriate to treat the combined apparatus as a machine. [25 26] Rank argued that this approach is inconsistent with the limits on the numbers of machines on any premises (section 31 of the Gaming Act 1968). That restriction seems directed at the terminals available to individual players. It is not necessary to resolve the issue. The practical answer is that the word machine, where it matters, can refer to an individual terminal. But the relevant phrase is the element of chance in the game is provided by means of the machine. Chance is the possibility of something happening, not in the abstract, but for a particular player in the context of a particular game; the possibility of that player getting the combination of numbers which wins a prize, or a combination which does not. [29 30] The outcome of the game is determined by pressing a button or pulling a lever on the terminal. It is a more sophisticated equivalent of a player rolling a dice, where the winning number is produced by means of the players action in throwing the dice. The RNG produces a pre programmed sequence of numbers which changes very rapidly. The element of chance in any game is provided by means of the players action in pressing the button, so interrupting that ever changing sequence at a particular moment. The terminal is not simply communicating information from the RNG, but is the active means by which the winning or losing combination is generated. The RNG is a necessary part of the process, but its response (wherever it is situated) is entirely automatic. In these circumstances, it is a fair use of language, and consistent with the apparent policy of the legislation, to describe the element of chance as provided by means of the terminal. [31] Accordingly, Ranks appeal is dismissed. [32]
The appeal concerns an order made by City of Westminster Magistrates Court for forfeiture of donations made to the United Kingdom Independence Party (UKIP), a registered political party. Restrictions on donations to political parties are set out in Chapter II of Part IV of the Political Parties, Elections and Referendums Act 2000 ("PPERA"). Section 54 PPERA provides that a donation must not be accepted by a political party if the donor is not a permissible donor at the time of receipt. Permissible donors are defined in section 54(2)(a) as individuals registered in an electoral register. Under section 56(1) PPERA, a political party which receives a donation must take all reasonable steps to verify the identity of the donor and whether he is a permissible donor. Under the terms of the statute, if a party is not satisfied that a donation is made by a permissible donor it can return the donation within thirty days. Only if it fails to do so will it be regarded as having accepted the donation. Sections 58 60 of PPERA provide for forfeiture in relation to donations made by impermissible donors. In particular, section 58(2) provides that where a political party has accepted a donation which it is prohibited from accepting, the Electoral Commission may apply to a Magistrates Court for an order of forfeiture by the party of an amount equal to the value of the donation. Mr Alan Bown, a member of UKIP, was entitled to be registered as an elector but, for the period 1 December 2004 2 February 2006, his name was not on any electoral register. During that period Mr Bown made donations to UKIP amounting to 349,216. UKIP did not return any of the donations within thirty days, or at all. On 16 March 2007, the Electoral Commission applied to the City of Westminster Magistrates Court for an order of forfeiture of an amount equal to the donations. The judge ordered the forfeiture of only 14,481, being the value of donations received by UKIP after the date of a meeting between the Electoral Commission and the party at which UKIP was aware that Mr Bown was not on the electoral roll. Following judicial review proceedings challenging the decision of the Magistrates Court brought by the Electoral Commission, the Court of Appeal held that the Magistrates Court had erred in its construction of PPERA and had not made a valid exercise of discretion under s58(2): its decision was irrational and inadequately reasoned. The Court held that (1) s.58(2) of PPERA required that an order for forfeiture of an unlawful donation must reflect the full sum of the donation, and (2) on the exercise of the discretion by the Magistrates Court, there is a strong presumption in favour of forfeiture. UKIP appealed to the Supreme Court. The appeal was allowed and the order of the Magistrates Court restored. The majority of the Court (Lords Phillips, Mance, Kerr and Clarke) held that section 58(2) permitted the forfeiture of a sum less than the total donation and that the presumption in favour of forfeiture was displaced in the present case where the donor was eligible to be on the UK electoral register but had not been registered by reason of administrative oversight. UKIP would be required to forfeit 14,481. Three dissenting Justices (Lords Rodger, Brown and Walker) would have held that the full donation must be forfeited. Lord Phillips, with whom Lords Mance, Kerr and Clarke agreed, decided that the appeal should be allowed. Lord Phillips stated that the primary issue is whether section 58(2) confers a broad discretion on the court to choose to make an order for forfeiture or whether there is a strong presumption in favour of forfeiture (the presumption issue). Related to the presumption issue is the issue of whether section 58(2) PPERA permits the court to make an order for partial forfeiture (the all or nothing issue). In order to answer the questions raised in the appeal, it was necessary to look at the legislative history of PPERA, in particular the Fifth Report of the Committee on Standards in Public Life on the Funding of Political Parties in the United Kingdom, published in October 1998 (the Neill Report), and White Paper Cm4413. That history provided a clear picture of the objects of Chapter II of Part IV of PPERA. The primary object is to prevent donations to political parties from foreign sources. Parliament made a significant change to the test proposed in the Neill Report in restricting permissible donors to those actually on an electoral register, excluding those eligible to be put on one. The change was not due to the fact that there is anything undesirable about parties being funded by those who are not on an electoral register; rather, it was made for pragmatic reasons. The secondary object of the Chapter II of Part IV of PPERA is to provide a scheme for achieving the primary object that is easy to apply, easy to police and that contains adequate sanctions for non compliance (paras [25] [26]). There are two distinct objects of the power to forfeit in section 58(2). The primary object of forfeiture is the direct prevention of the mischief that the legislation is designed to prevent the receipt by a political party of foreign funding. The second object of the power to forfeit is to provide a deterrent or sanction against failure to comply with the requirements of the Act that are designed to make sure that donations are not received from an impermissible donor (paras [31] [35]). Rather than following the eligibility test proposed by the Neill Report, Parliament chose to adopt a different scheme under which impermissible donations may or may not be foreign. Under this scheme, the significance of an individual impermissible donation may vary widely. It was clear that in making the power to forfeit discretionary, Parliament intended that the Magistrates Court should discriminate between cases where forfeiture was warranted and cases where it was not. Parliament intended the court to consider whether forfeiture was a proportionate response to the facts of the particular case (paras [35] [36]). Where a political party has accepted a donation from an impermissible source, there should be an initial presumption in favour of forfeiting the donation. If the donor was eligible to be registered on the electoral roll, the initial presumption in favour of forfeiture will have been rebutted and the question will then be whether there have been failures to comply with those requirements of the Act that are designed to ensure that such donations are not accepted, and the nature of those failures (paras [47] [49]). On the all or nothing issue, Lord Phillips noted that the language of section 58(2) suggests that there is only one amount that can be forfeited. However, the word forfeit is used in an unusual way in the context of the statute, in a manner which is more akin to a fine. Considering the context, the preferable interpretation is to treat the power to order forfeiture of an amount equal to the value of an impermissible donation as implicitly including the power to order forfeiture of a lesser sum (paras [50] [51]). Lord Kerr (with whom Lord Mance agreed), whilst agreeing with the outcome proposed by Lord Phillips, held that the critical issue was the all or nothing issue. If partial forfeiture is possible it follows that the courts discretion as to whether or not to order forfeiture should be wide; if not, a broad discretion is not likely to be appropriate. As the primary aim of PPERA was to ban foreign donors, it was possible to hold that Parliament did not intend that where other donors were caught because of the simplicity and breadth of the provision that was adopted to achieve that aim, they would be subject to the same draconian penalty as those to whom the legislation was principally directed (para [114]). The court has the power to make an order of forfeiture for less than the full amount of the donation, and its discretion as to the level at which to fix the sanction at less than full forfeiture must be wide. Agreeing with Lord Phillips, where it is shown that a donation has come from an impermissible source it should be presumed that it is a foreign donation and, if that presumption is not rebutted, forfeiture should follow. If, however, it can be shown that the donation came from someone who was entitled to be on an electoral register, the level of forfeiture should reflect the particular circumstances of the case (para [116]). The dissenting judgments of Lord Rodger and Lord Brown (with whom Lord Walker agreed) held that the language of PPERA was clear. UKIP was not permitted to retain money that it had not lawfully been entitled to receive. Section 58(2) does not permit the forfeiture of a sum less than the donation. In most cases, and certainly in this case where neither the benefit nor its value has ever been returned, it is difficult to see how the discretion could properly be exercised other than by order for forfeiture (paras [63] [64], [90] [95]).
Is it an answer to a refugee claim by an individual who has no political views and who therefore does not support the persecutory regime in his home country to say that the individual would lie and feign loyalty to that regime in order to avoid the persecution to which he would otherwise be subjected? This is the question which arises in these appeals, which form a sequel to this courts decision in HJ (Iran) v Secretary of State for the Home Department in which it was held that a gay man was entitled to live freely and openly in accordance with his sexual identity and it was no answer to the claim for asylum that he would conceal his sexual identity in order to avoid the persecution that would follow if he did not do so (the HJ (Iran) principle). [1] The country guidance for Zimbabwe, applicable in these cases, found that there is a campaign of persecution perpetrated by undisciplined militias who have delivered a quite astonishingly brutal wave of violence to whole communities thought to bear responsibility for the wrong outcome of the March 2008 election. Any attempt to target those who are themselves involved with the Movement for Democratic Change (MDC) has been abandoned and those at risk includes anyone who cannot demonstrate positive support for Zanu PF or alignment with the regime. The means used to establish loyalty include requiring the production of a Zanu PF card or the singing of the latest Zanu PF campaign songs. Inability to do these is taken as evidence of disloyalty and therefore support for the opposition. In deploying these militia gangs, the regime unleashed against its own citizens a vicious campaign of violence, murder, destruction, rape and displacement. [2], [15] [16] The first appeal concerns RT, SM and AM. They arrived in the UK from Zimbabwe at various times between 2001 and 2008 and have each claimed asylum here. Each of their claims was refused. RT, while credible, had never been politically active. SM was not a credible witness and had given inconsistent accounts of her involvement with the MDC and had lied in a number of respects. On reconsideration it was found that she had no connections with MDC. AM was found not to be a credible witness and although he was in favour of the MDC, he had no political profile and was not politically engaged prior to his departure from Zimbabwe. The Court of Appeal allowed the appeals of RT, SM and AM on the basis that if individuals are forced to lie about their absence of political beliefs, solely in order to avoid persecution, that is covered by the HJ (Iran) principle and does not defeat their claims for asylum. [4] [10] The second appeal concerns KM. He claimed to have arrived in the UK in January 2003 on a false South African passport and claimed asylum on 20 August 2008. His claim was refused. While his son had been granted asylum in the UK because he had a well founded fear of persecution in Zimbabwe on the grounds that he was a sympathiser of the MDC, KM was found by the Tribunal not to have established any adequate factual basis to support his claim that he would be at real risk of finding himself in a position where he would be unable to demonstrate loyalty to the regime. In the Court of Appeal, although the Secretary of State accepted that the appeal should be allowed because it was arguable that adequate consideration had not been given to the assessment of risk, there was an issue between the parties as to whether the case should be allowed outright or sent back to the Tribunal. The Court of Appeal allowed the appeal and sent the case back for further decision. [12] [14] The Supreme Court unanimously dismisses the Home Secretarys appeals in the cases of RT, SM and AM and allows KMs appeal. The HJ (Iran) principle applies to applicants who claim asylum on the grounds of a well founded fear of persecution for reasons of lack of political belief. Lord Dyson gives the leading judgment with which Lord Hope, Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson and Lord Reed agree. Lord Kerr also gives a short concurring judgment. There are no hierarchies of protection amongst the Refugee Convention reasons for persecution. Thus the Convention affords no less protection to the right to express political opinion openly than it does to the right to live openly as a homosexual. The Convention reasons reflect characteristics or statuses which either the individual cannot change or cannot be expected to change because they are so closely linked to his identity or are an expression of fundamental rights.[25] The HJ (Iran) principle applies to any person who has political beliefs and is obliged to conceal them in order to avoid the persecution that he would suffer if he were to reveal them.[26] The right to freedom of thought, opinion and expression protects non believers as well as believers and extends to the freedom not to hold and not to have to express opinions. There is no basis in principle for treating the right to hold and not to hold political beliefs differently from religious ones. There can also be no distinction between a person who is a committed political neutral and one who has given no thought to political matters. [32] [45] It is not in doubt that an individual may be at risk of persecution on the grounds of imputed political opinion and that it is nothing to the point that he does not in fact hold that opinion. [53] Persecution on the grounds of imputed opinion will occur if a declared political neutral is treated by the regime as a supporter of its opponents and persecuted on that account. But a claim may also succeed if it is shown that there is a real and substantial risk that, despite the fact that the asylum seeker would assert support for the regime, he would be disbelieved and his neutrality would be discovered. [55] This gives rise to questions of fact, but it is difficult to see how an asylum claim advanced on the basis of imputed political opinion could be rejected, unless the judge was able to find that the claimant would return to an area where political loyalty would be assumed and where, if he was interrogated, he would not face the difficulties faced by those who were not loyal to the regime in other parts of the country. If the claimant would return to any other parts of the country, the judge would be likely to conclude that there was a real and substantial risk that a politically neutral person who pretended that he was loyal to the regime would be disbelieved and therefore persecuted. [56] [59]
Between 1973 and 2009 the Respondent, Taylor Clark Leisure Plc (TCL) was the representative member of the Taylor Clark VAT Group (the VAT Group) in terms of Article 11 of the Principal VAT Directive 2006/112/EEC (the Principal Directive) and its predecessor, Article 4.4. of the Sixth Council Directive (77/388/EEC) (the Sixth Directive). The idea of a VAT group of companies was introduced to simplify the collection of VAT. In about 1990, TCL undertook a group reorganisation which involved the transfer of its bingo business to another member of the VAT group, Carlton Clubs Ltd (Carlton). The transfer to Carlton was effected by a letter dated 30 March 1990 (the 1990 Asset Transfer Agreement). In 1998 Carlton ceased to be part of the VAT group. In 2008 the House of Lords held that UK legislation that imposed a shortened three year time limit on claims for the refund of overpaid VAT in the period from 1973 to 4 December 1996 without providing for an adequate transitional period, which was fixed in advance, was contrary to European law. In response, the UK Parliament enacted s121 of the Finance Act 2008 (FA 2008) which provides an extended time limit for claims relating to a prescribed accounting period ending before 4 December 1996. Instead of requiring that the claim must be made within the three year time limit, s121 required such a claim to be made before 1 April 2009. On 16 November 2007, Carlton submitted four claims to the Appellant (HMRC) under s80 of the Value Added Tax Act 1994 (VATA) for repayment of VAT output tax, which TCL as representative member for the VAT group had overpaid in accounting periods between 1973 and 1998. Carlton submitted these claims without notifying TCL. These claims related to (i) mechanised cash bingo takings, (ii) gaming machine takings, (iii) participation fees and (iv) added prize money and participation fees. On 8 January 2009, it submitted a revised claim (iv) in which it asserted a right to claim overpaid VAT back to 1973 (i.e. before its incorporation in 1990) by relying on the 1990 Asset Transfer Agreement. After initially refusing all of Carltons claims, HMRC paid the sum claimed by Carlton in its revised claim (iv) to TCL (as representative member of the VAT Group) on 12 May 2009. On 23 September 2010, HMRC confirmed to TCL an assessment for repayment of the sum paid on 12 May 2009 and refused TCLs claim for repayment of the other claims (i.e. claims (i), (ii) and (iii)). HMRC gave three reasons: (i) TCL had not submitted claims before the expiry of the time limit imposed by s121 FA 2008; (ii) the claims predating 31 March 1990 had been assigned to Carlton and (iii) because the VAT group had since been disbanded (on 28 February 2009), the claim for over declared output tax must be made by the company whose activities gave rise to the over declaration and Carlton had made that claim. TCL and Carlton pursued rival appeals against HMRCs decision. The First Tier Tribunal (FTT) held, amongst other things, that TCL had not made a claim under s80 of VATA and could not rely on Carltons claims. On appeal by TCL, the Upper Tribunal (UT) found that TCL had not made a claim and no claim had been made on its behalf before expiry of the time limit. TCLs further appeal to the Inner House of the Court of Session (IH) on this issue was successful. The IH held that the representative member embodied the VAT group which was a single taxable person, or a quasi persona and Carltons claims fell to be construed as claims on behalf of TCL. The Supreme Court unanimously allows HMRCs appeal. Lord Hodge gives the lead judgment with which the other Justices agree. HMRCs principal argument is that the IH erred in holding that a claim for repayment of VAT by an individual member of a VAT group must normally be construed as a claim made on behalf of the representative member of that group. HMRC argued that Carltons claim was made on its own behalf and TCL could not rely on it to avoid the statutory time bar. TCL relied on the reasoning of the IH and argued that, as the representative member, it was entitled to rely on Carltons claims [18]. The Court notes that Article 11 of the Principal Directive (like Article 4.4 of the Sixth Directive), is permissive and is not prescriptive; it does not require member states to institute a single taxable person regime and does not lay down a template as to how a member state will treat a group of persons as a single taxable person [19]. It is clear from the words in s43(1) of VATA that the UK chose to achieve the end which the Principal Directive authorised not by deeming the group to be a quasi person but by treating the representative member as the person which supplied or received the supply of goods or services. In UK legislation, the single taxable person is the representative member [21 22]. There is no need to complicate matters by introducing a concept of the VAT group as a quasi persona in an analysis of the UK legislation [26]. Section 43 of VATA does not make the group a taxable person but treats the groups supplies and liabilities as those of the representative member for the time being [27]. It is clear from s80 of VATA that HMRCs liability for overpaid output tax is owed to the person who accounted to them for VAT. It is also clear that a claim must be made for the credit or repayment to that person before HMRC comes under any liability to credit or repay. It follows from the operation of s43 of VATA that where the representative member has overpaid VAT, the person entitled to submit a claim during the currency of a VAT group, unless the claim has been assigned, is either the current representative member of the VAT group or a person acting as the representative members agent [29]. The FTT correctly found that Carlton did not make the claims on behalf of TCL. Four reasons supported this finding. Firstly, when Carlton made the claims, it had long ceased to be a member of the VAT group. Secondly, it appears from the 2007 letters that Carlton had already presented claims in relation to its own business activities in the period after it had left the VAT group. Thirdly, the use by Carlton of the VAT groups VAT registration number was necessary to identify the original source of the allegedly overpaid VAT but did not disclose who was entitled to the repayment. Fourthly, in each of the claims submitted in 2007, Carlton was claiming repayment of sums paid from 1973, long before its incorporation in 1990, as well as in the period after 1990 when it was member of the VAT group. It clarified the basis on which it made those claims in its 2009 revised claim. At the time, both Carlton and HMRC would have readily understood Carlton to be claiming repayment in its own interest [34 36]. The 2009 revised claim provides relevant and admissible evidence concerning the basis upon which Carlton made the 2007 claims [37]. Carlton did not act as TCLs agent. Carlton had no actual authority to send the letter on TCLs behalf. In any case, in circumstances where the UT made its decision on the basis that Carlton had submitted the letters on its own behalf, it was not open to an appellate court to find that there was an agency relationship between Carlton and TCL. Furthermore, there is also no basis for the argument that TCL ratified Carltons claims, thereby conferring retrospective authority upon them. [38 39]. Finally, TCL applied to the Court to make a reference in this case to the Court of Justice of the European Union (CJEU) but this is neither necessary nor appropriate. A ruling by the CJEU on the nature of the single taxable person is not necessary for the determination of this appeal [40 41]. There is also no inconsistency between schedule 1 of VATA and the Courts interpretation of s43 of VATA [42].
The appeals, brought by the Commissioners for Her Majestys Revenue and Customs (HMRC), are concerned with schemes which were designed to avoid the payment of income tax on bankers bonuses, by taking advantage of exemptions under Chapter 2 of Part 7 of the Income Tax (Earnings and Pensions) Act 2003, as amended by Schedule 22 to the Finance Act 2003 (ITEPA). In particular, under section 425(2) of ITEPA, an exemption is conferred on the award to employees of restricted securities, defined by section 423 as shares which are subject to provision for their forfeiture if some contingency occurs. Under the schemes, the banks decided to award discretionary bonuses to their employees, but rather than paying the bonuses to them directly, the banks instead used the amount of the bonuses to pay for redeemable shares in offshore companies set up for the purposes of the schemes. The shares were then awarded to the employees in place of the bonuses. Conditions were attached to the shares making them subject to forfeiture if a contingency occurred, so as to qualify for the exemption. In the UBS case, the contingency was a specified rise in the FTSE 100 within the next three weeks. The contingency was unlikely to occur, and it was also hedged against so that the employees would lose out slightly, but not significantly, if it did occur. In the DB case, the contingency was the employees being dismissed for misconduct or voluntarily resigning within the next six weeks. Once the exemptions had accrued, the shares were redeemable by the employees for cash. HMRC decided that tax should be assessed as if the employees had been paid in cash the amount of the bonuses allocated to them. UBS and DBs appeals to the First Tier Tribunal were dismissed. The Upper Tribunal heard the cases together and allowed UBSs appeal. DBs appeal was dismissed on the basis that the scheme failed to comply with a technical requirement for exemption. The Court of Appeal dismissed HMRCs appeal in the UBS case, and allowed DBs appeal. The Supreme Court unanimously allows HMRCs appeals. Lord Reed gives the lead judgment, with which the other Justices agree. Lord Reed explains that the case of W T Ramsay Ltd v Inland Revenue Comrs [1982] AC 300 extended the purposive approach to statutory construction, which was orthodox in other areas of the law, to tax cases. It also established that the analysis of the facts depends on that purposive construction of the statute [61 62]. Taxing statutes generally draw their life blood from real world transactions with real world economic effects. Where an enactment is of that character, and a transaction, or an element of a composite transaction, has no purpose other than tax avoidance, it can usually be said that to allow tax treatment to be governed by transactions which have no real world purpose of any kind is inconsistent with that fundamental characteristic. Where schemes involve intermediate transactions inserted for the sole purpose of tax avoidance, it is quite likely that a purposive interpretation will result in such steps being disregarded for fiscal purposes [64]. In the present appeals, Lord Reed begins by asking whether a purposive interpretation of the legislation is possible. The context of Chapter 2, and the background to its enactment, provide some indication of Parliaments intention. The purposes of Part 7 were broadly identified in Grays Timber Products Ltd v Revenue and Customs Comrs [2010] UKSC 4 as being: (i) to promote employee share ownership by encouraging share incentive schemes; (ii) since such schemes require benefits to be contingent on future performance, creating a problem if tax is charged on the acquisition of the shares, to wait and see in such cases until the contingency has fallen away; and (iii) to counteract consequent opportunities for tax avoidance [74]. The background to the enactment of Chapter 2 indicates that it was intended to address practical problems, and to forestall opportunities for tax avoidance [75]. It is difficult to accept that Parliament intended to encourage, by exemption from taxation, the award of shares to employees, when the award of such shares has no purpose other than the obtaining of the exemption itself [77]. The section 425(2) exemption, in respect of the acquisition of securities which are restricted securities by virtue of section 423(2), was designed to address practical problems arising from valuing a benefit which was, for business or commercial reasons, subject to a restrictive condition involving a contingency. Nothing suggests that Parliament intended that section 423(2) should also apply to restrictive conditions that have no business or commercial purpose, but are deliberately contrived solely to take advantage of the exemption [78]. This is not undermined by the section 429 exemption, which is confined to two specific situations falling within the broader section 425 exemption, whose purposes are consistent with the general approach to Chapter 2 [80]. The fact that Parliament has expressly dealt with tax avoidance in Chapters 3A to 3D does not support the inference that Parliaments intentions in relation to anti avoidance had been exhaustively expressed [82]. Lord Reed concludes that the reference in section 423(1) to any contract, arrangement or condition which makes provision to which any of subsections (2) to (4) applies is to be construed as being limited to provision having a business or commercial purpose, and as not applying to commercially irrelevant conditions whose only purpose is the obtaining of the exemption [85]. In the UBS case, Lord Reed finds that the condition was completely arbitrary, and had no business or commercial rationale. Further, the economic effect of the restrictive condition was nullified by the hedging arrangements, except to an insignificant and pre determined extent. Accordingly, the condition should be disregarded, with the consequence that the shares are not restricted securities within the meaning of section 423 [86 7]. The condition in the DB case operated only for a very short period, during which the possibility that it might be triggered lay largely within the control of the employee who would be adversely affected. It had no business or commercial purpose, and thus fell outside section 423 [88]. Having found that the exemption does not apply, Lord Reed holds that the proper basis for taxation of the bonuses is as shares, and not as cash. The shares did not simply function as a cash delivery mechanism: the amount of cash for which the shares might be redeemed was neither fixed nor ascertainable when the shares were acquired [92]. The value of the shares has to be assessed as at the date of their acquisition, and the restrictive conditions must be taken into account, as ordinary taxation principles require the tax to be based on the shares true value [94 5].
These appeals are brought on behalf of various lone parent mothers and their young children to challenge the legislative provisions known as the benefit cap. These provisions originally capped specified welfare benefits at a total of 26,000 per household. But by the Welfare Reform and Work Act 2016 the government and Parliament reduced the cap to 23,000 for a household in London, 20,000 elsewhere. Single people (including lone parents) are exempt from the revised cap (the cap) if they work for 16 hours each week. The aim of the cap is to incentivise work. The appellants argue that in introducing the cap, the government, through Parliament, has discriminated against lone parents of young children, whose childcare obligations severely curtail their ability to work, and against the children themselves. In the DA case the appellants are three lone parent mothers two of whom had a child under two at the outset of proceedings, and those two children themselves. In DS, the appellants are two lone parent mothers with nine children, three of whom were under five, and those nine children themselves. On 22 June 2017 the High Court held in the DA case that the benefit cap unlawfully discriminated against the children under two and their mothers, but on 15 March 2018 the Court of Appeal set aside the High Courts order. On 26 March 2018 Lang J formally dismissed the DS claimants claims but granted a leap frog certificate so that they could apply to appeal directly to the Supreme Court. The Supreme Court dismisses the appeal by a majority of 5 2. Lord Wilson (with whom Lord Hodge agrees) gives the main judgment. Lord Carnwath (with whom Lord Reed and Lord Hughes agree) and Lord Hodge (with whom Lord Hughes agrees) give concurring judgments. Lady Hale agrees with Lord Wilson on the principles, but not the outcome. Lord Kerr disagrees with him about both. Lord Wilson acknowledges that the cap has had a major impact on lone parent households with a child aged under five and in particular under two [22]. It does incentivise them to try to find work for at least 16 hours per week, but this was argued to fly in the face of the governments own policy of providing no free childcare for children under two and of replacing income support with job seekers allowance only after a lone parents youngest child has reached school age. The governments funding of Discretionary Housing Payments (DHPs) may alleviate the impact of the cap on such lone parent households but the evidence on this could be stronger. The cap saves little public money, but it can take the families it affects well below the poverty line. Living in poverty has a particularly adverse impact on the development of children under five [23] [34]. The caps reduction of benefits to well below the poverty line engages the claimant mothers and childrens right under Article 8 of the European Convention on Human Rights (ECHR) to respect for their family life [35] [37]. Each of the four classes of claimants has a separate status under Article 14 (for example, lone parents of children under two) on grounds of which status, they might complain they face discrimination in the enjoyment of that right [38] [39]. Their complaint, for which there is prima facie evidence, would be that despite being in a relevantly different situation from others subjected to the cap, they are treated the same way see Thlimmenos v Greece (2000) 31 EHRR 12 [40] [51]. The government must objectively justify this discrimination in this case, its failure to exempt the DA and DS cohorts from the cap [52] [54]. The test for whether the government can justify a discriminatory rule governing the distribution of welfare benefits is whether the rule is manifestly without reasonable foundation (MWRF). Once the government has put forward a foundation, the court will proactively examine whether it is reasonable [55] [66]. The United Nations Convention on the Rights of the Child (UNCRC) requires the public authorities to treat the childs best interests as a primary consideration. It forms no part of our domestic law, but aids interpretation of the ECHR, as to whether the government unjustifiably discriminated against the children and their parents in their enjoyment of their right under Article 8. The evidence shows that the government did, as a primary consideration, evaluate the likely impact of the cap on lone parents with young children [67] [87]. Furthermore, the governments belief that there are better long term outcomes for children in households where an adult works is a reasonable foundation for treating the DA and DS cohorts similarly to all others subjected to the cap [88]. Lord Carnwath and Lord Hodge both express reservations on the issue of status, but agree with Lord Wilson on the relevance of the UNCRC and also on the application of the MWRF test. They agree with him that the executive and Parliament both gave proper consideration to the interests of the children affected [89] [123], [124] [131]. Lady Hale agrees with Lord Wilson on the legal principles but not their application. She holds that the government failed to strike a fair balance between the very limited public benefits of the cap and the severe damage done to the family lives of young children and their lone parents if the parents must choose between working outside the home and not having enough for the family to live on [132] [157]. Lord Kerr considers the MWRF test to have derived from the margin of appreciation which is afforded to decisions of national authorities in the European Court of Human Rights. He would not import this approach into the national courts consideration of a measures proportionality. The steps in the proportionality analysis at the national level are well settled in the case law [164] [172]. The MWRF standard should not be applied as part of this analysis instead, the question should be whether the government has established that there is a reasonable foundation for its conclusion that a fair balance has been struck [173] [177]. In relation to the UNCRC, Lord Kerr does not agree with Lord Wilson that the key question is whether the government has acted in breach of Article 3 of the UNCRC [183]. A finding that Article 3 has not been breached does not establish the proportionality of the measure [186]. The evidence in this case shows that, while the impact on childrens rights was considered, it was not given a primacy of importance which Article 3 requires [196].
Cavendish v El Makdessi By an agreement, Mr Makdessi agreed to sell to Cavendish a controlling stake in the holding company of the largest advertising and marketing communications group in the Middle East. The contract provided that if he was in breach of certain restrictive covenants against competing activities, Mr Makdessi would not be entitled to receive the final two instalments of the price paid by Cavendish (clause 5.1) and could be required to sell his remaining shares to Cavendish, at a price excluding the value of the goodwill of the business (clause 5.6). Mr Makdessi subsequently breached these covenants. Mr Makdessi argued that clauses 5.1 and 5.6 were unenforceable penalty clauses. The Court of Appeal, overturning Burton J at first instance, held that the clauses were unenforceable penalties under the penalty rule as traditionally understood. ParkingEye v Beavis ParkingEye Ltd agreed with the owners of the Riverside Retail Park to manage the car park at the site. ParkingEye displayed numerous notices throughout the car park, saying that a failure to comply with a two hour time limit would result in a Parking Charge of 85. On 15 April 2013, Mr Beavis parked in the car park, but overstayed the two hour limit by almost an hour. ParkingEye demanded payment of the 85 charge. Mr Beavis argued that the 85 charge was unenforceable at common law as a penalty, and/or that it was unfair and unenforceable by virtue of the Unfair Terms in Consumer Contracts Regulations 1999. The Court of Appeal upheld the first instance decision rejecting those arguments. The Supreme Court allows the appeal in Cavendish v El Makdessi and dismisses the appeal in ParkingEye v Beavis, thus upholding the validity of the disputed clauses in both cases. Lord Neuberger and Lord Sumption give a joint judgment, with which Lord Clarke and Lord Carnwath agree. Lord Mance and Lord Hodge write concurring judgments. Lord Toulson agrees that the appeal in Cavendish v El Makdessi should be allowed but dissents in ParkingEye v Beavis. The Legal Principles The penalty rule is an ancient, haphazardly constructed edifice which has not weathered well [3]. However, it is of long standing and a similar rule exists in all other developed systems of law. It also covers types of contract which are not regulated in any other way. It should not therefore be abolished, but neither should it be extended [36 40]. The fundamental principle is that the penalty rule regulates only the contractual remedy available for the breach of primary contractual obligations, and not the fairness of those primary obligations themselves [13]. The relevant contractual remedy typically stipulates payment of money, but it equally applies to obligations to transfer assets, or clauses where one party forfeits a deposit following its own breach of contract [14 18]. What makes a contractual provision penal? Lord Dunedins tests in Dunlop Pneumatic Tyre Company Ltd. v New Garage and Motor Company Ltd. [1915] AC 79 have too often been treated as a code. The speeches of the rest of the Appellate Committee, particularly Lord Atkinson, are at least as important. The validity of a clause providing for the consequences of a breach of contract depends on whether the innocent party can be said to have a legitimate interest in the enforcement of the clause. There is a legitimate interest in the recovery of a sum constituting a reasonable pre estimate of damages, but the innocent party may have a legitimate interest in performance which extends beyond the recovery of pecuniary compensation. The law will not generally uphold a contractual remedy where the adverse impact of that remedy significantly exceeds the innocent partys legitimate interest [18 30]. The concepts of deterrence and genuine pre estimate of loss are unhelpful. The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation [32]. Lord Mance agrees with that test. The first step is to consider whether any (and if so what) legitimate business interest is served and protected by the clause, and if so and secondly, whether the provision made for that interest is extravagant, exorbitant or unconscionable [152]. The penalty doctrine has been applied to clauses withholding payments, and transfers of moneys worth [154 159], and may be considered alongside relief against forfeiture [161]. It should not be abolished or restricted: its existence is justified by its longstanding invocation and endorsement in the United Kingdom, Europe and across common law jurisdictions [162 170]. Lord Hodge concurs, reviewing the authorities from England and Scotland and the historical development of the doctrine in Scots law. The doctrine only applies to secondary obligations arising out of a breach of contract, but is not confined to cases requiring the payment of money on breach. It applies to clauses withholding payments on breach, clauses requiring the party in breach to transfer property, and clauses requiring payment of a non refundable deposit if that deposit is not reasonable as earnest money (particularly where such a clause exceeds the percentage set by long established practice) [234 241]. The test is whether the sum or remedy stipulated as a consequence of a breach of contract is exorbitant or unconscionable when regard is had to the innocent partys interest in the performance of the contract. A clause fixing a level of damages payable on breach will be a penalty if there is an extravagant disproportion between the stipulated sum and the highest level of damages that could possibly arise from the breach [255]. Lord Toulson agrees with Lord Hodges formulation of the test above, and with Lord Mance and Lord Hodge on the relationship between penalty and forfeiture clauses [294]. Application to Cavendish v El Makdessi The court concludes that neither clause 5.1 nor clause 5.6 are unenforceable penalty clauses, and accordingly allows the appeal. Clause 5.1 is a price adjustment clause. It is not a secondary provision but a primary obligation. The Sellers earn consideration for their shares by (amongst other things) observing the restrictive covenants. Whilst clause 5.1 has no relationship with the measure of loss attributable to the breach, Cavendish also had a legitimate interest in the observance of the restrictive covenants, in order to protect the goodwill of the Group generally. The goodwill of the business was critical to Cavendish and the loyalty of Mr Makdessi was critical to the goodwill. The court cannot assess the precise value of that obligation or determine how much less Cavendish would have paid for the business without the benefit of the restrictive covenants. The parties were the best judges of how it should be reflected in their agreement [73 75]. A very similar analysis applies to clause 5.6. It is also a primary obligation, and it could not be treated as invalid without rewriting the contract [83 88]. It was said to be penal because the formula excluded goodwill from the calculation of the payment price. It did not represent the estimated loss attributable to the breach. But it reflected the reduced consideration which Cavendish would have been prepared to pay for the acquisition of the business on the hypothesis that they could not count on the loyalty of Mr Makdessi [79 83]. Lord Mance, Lord Hodge and Lord Toulson concur on both clause 5.1 and clause 5.6 [171 187; 269 282; 292]. Application to ParkingEye v Beavis The court dismisses the appeal by a majority of six to one, and declares that the charge does not contravene the penalty rule, or the Unfair Terms in Consumer Contracts Regulations 1999. Mr Beavis had a contractual licence to park in the car park on the terms of the notice posted at the entrance, including the two hour limit. The 85 was a charge for contravening the terms of the contractual licence. This is a common scheme, subject to indirect regulation by statute and the British Parking Associations Code of Practice. The charge had two main objects: (i) the management of the efficient use of parking space in the interests of the retail outlets and their users by deterring long stay or commuter traffic, and (ii) the generation of income in order to run the scheme [94 98]. Unlike in Cavendish v El Makdessi, the penalty rule is engaged. However, the 85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin [99]. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices [100 101]. The result is the same under the 1999 Regulations. Although the charge may fall under the description of potentially unfair terms at para. 1(e) of Schedule 2, it did not come within the basic test for unfairness in Regulations 5 and 6(1), as that test has been recently interpreted by the Court of Justice in Luxembourg [102 106]. Any imbalance in the parties rights did not arise contrary to the requirements of good faith, because ParkingEye and the owners had a legitimate interest in inducing Mr Beavis not to overstay in order to efficiently manage the car park for the benefit of the generality of users of the retail outlets. The charge was no higher than was necessary to achieve that objective. Objectively, the reasonable motorist would have, and often did, agree to the charge [106 109]. Lord Mance and Lord Hodge both concur [188 214; 284 288]. Lord Toulson (dissenting) would have allowed the appeal, on the grounds that the clause infringes the 1999 Regulations, which reflect the special protection afforded to consumers under the European Directive on unfair terms in consumer contracts. The burden is on the supplier to show that the consumer would have agreed to the terms in individual negotiations on level terms. It is not reasonable to make that assumption in this case, and in any event ParkingEye had not produced sufficient evidence to that effect [309 315].
This appeal is about article 24(2) of the Brussels I Recast Regulation (Regulation (EU) No 1215/2012) (the Recast Regulation). This sets out special jurisdictional rules on the governance of corporations. The sixth appellant (Koza Altin) is a publicly listed company in Turkey. It is part of the Koza Ipek Group (the Group), formerly controlled by the second respondent (Mr Ipek) and his family. The first respondent (Koza Ltd) is a private company in England and a wholly owned subsidiary of Koza Altin. Mr Ipek alleges that he and the Group have been targeted unfairly by the Turkish government. In September 2015, he caused a number of changes to be made to Koza Ltds constitution and share structure to control his interests. Their validity and effect are in issue in these English proceedings. On 26 October 2015, in Turkish proceedings relating to a criminal investigation, a judge appointed certain individuals as trustees of Koza Altin and companies in the Group. Subsequently, he appointed the first to fifth appellants as trustees. On 19 July 2016, the trustees caused Koza Altin to serve a notice on the directors of Koza Ltd under section 303 of the Companies Act 2006 (the 2006 Act), requiring them to call a general meeting to consider resolutions for their removal and replacement with three of the trustees. The directors refused. On 10 August 2016, Koza Altin served a notice under section 305 of the 2006 Act to convene a meeting on 17 August. On 16 August, Mr Ipek and Koza Ltd made an urgent without notice application seeking an injunction to prevent the meeting. Injunctive relief was sought on two bases. First, that the notices of 19 July and 10 August 2016 (the notices) were void under section 303(5)(a) of the 2006 Act (the English company law claim). Second, that the notices were void because the English courts should not recognise the authority of the trustees to cause Koza Altin to do anything as a Koza Ltd shareholder, since they were interim appointees only and acting contrary to Turkish law, human rights and natural justice (the authority claim). On 16 August 2016, Snowden J granted interim injunctive relief. On 18 August, Mr Ipek and Koza Ltd issued a claim seeking declaratory and injunctive relief. Koza Altin and the trustees filed an acknowledgement of service and then an application contesting jurisdiction. Koza Altin also filed a Defence and Counterclaim to the English company law claim. In turn, Mr Ipek and Koza Ltd issued a strike out application, alleging lack of authority. Asplin J, in the High Court, dismissed the jurisdiction challenge on 17 January 2017. It was common ground that the English company law claim fell within article 24(2) of the Recast Regulation. Her assessment was that the authority claim was inextricably linked with that claim, which she considered the principal subject matter of the proceedings as a whole. Koza Altin and the trustees appealed. The Court of Appeal dismissed the appeal. It largely agreed with Asplin Js assessment and also rejected a distinct submission that the trustees are not necessary parties. The trustees and Koza Altin appeal to this Court. The issues are: (1) whether article 24(2) of the Recast Regulation confers jurisdiction on the English courts to determine the authority claim as against Koza Altin and (2) whether article 24(2) confers exclusive jurisdiction on the English courts to determine either the authority claim or the English company law claim as against the trustees. The Supreme Court unanimously allows the appeal. Lord Sales gives the sole judgment, with which all members of the Court agree. The basic scheme for allocation of jurisdiction under the Recast Regulation is that persons domiciled in a member state of the European Union should generally be sued in that member state (by article 4), but they may also be sued in another member state in certain situations, including in cases of exclusive jurisdiction specified under article 24 [20]. The cases of exclusive jurisdiction within article 24 reflect situations where there is an especially strong and fixed connection between the subject matter of a dispute and the courts of a particular member state [24]. The principle of exclusive jurisdiction supersedes the other principles underlying the Recast Regulation, including the domiciliary principle of jurisdiction (under article 4) and the principle of respect for party autonomy [25]. Given the scheme of the Recast Regulation, in principle, there should be only one correct application of article 24 in relation to a given claim [28]. The interpretation and application of article 24 cannot depend on an evaluative judgment in which different courts could reasonably take different views [28]. This is consistent with the objectives of setting highly predictable rules on the allocation of jurisdiction and avoiding inconsistent judgments on the same issue by the courts of different member states [29]. Decisions of the Court of Justice of the European Union, particularly Hassett v South Eastern Health Board (Case C 372/07) [2008] ECR I 7403 and Berliner Verkehrsbetriebe v JP Morgan Bank Chase Bank NA (Case C 144/10) [2011] 1 WLR 2087, show that article 24(2) is to be construed narrowly, as an exception to the general domiciliary principle, and should not be given an interpretation broader than required by its objective [31 32, 40 41]. These decisions also stress the importance of arriving at an interpretation which avoids the risk of inconsistent decisions [39]. Therefore, the interpretation of article 24(2) adopted by the Court of Appeal cannot be sustained. An evaluative assessment of proceedings relating to a specific claim may show that a particular aspect of the claim, involving an assessment of the validity of decisions of a companys organs, is so linked with other features of the claim that it is not the principal subject matter of those proceedings, as required by article 24(2). Where there are two distinct claims one, by itself, falling within article 24(2) and the other, by itself, not falling within article 24(2) it is not legitimate to maintain that by an overall evaluative judgment as to both claims taken together the second also falls within article 24(2), giving the English courts exclusive jurisdiction. A mere link between the two claims is not sufficient. [33 34] On issue (1), in this case, the English company law claim and the authority claim are connected in a sense, but they are distinct claims which are not inextricably bound up together. The English company law claim can be brought and made good on its own terms without regard to the authority claim, as can the authority claim. Assessing the authority claim as a distinct set of proceedings, clearly the principal subject matter does not comprise the validity of the decisions of the organs of a company with its seat in England. That interpretation and application of article 24(2) is acte clair. The English courts thus lack article 24(2) jurisdiction over Koza Altin and the trustees as to that claim. [35, 43] On issue (2), since article 24(2) does not cover the authority claim, the English courts lack article 24(2) jurisdiction in relation to the trustees with respect to that claim. The proceedings against the trustees are principally concerned with the authority claim. Article 24(2) jurisdiction over the English company law claim cannot extend to the trustees, who are not necessary parties to that claim. [45]
The Appellant is the landlord of a six storey terraced building at 51 Brewer Street, Soho, London W1. The Respondent is the current tenant under a lease granted in 1986. Its sub tenant, Romanys Ltd, runs an ironmongers shop from the basement and ground floor. Under clause 3(11) of the lease, the tenant may use any part of the building for (among other things) retail, offices or residential purposes, although the landlord gives no warranty that this usage will comply with planning rules. Clause 3(19) of the lease says the tenant cannot apply for planning permission without the landlords consent. It also says this consent must not be unreasonably withheld. This is known as a fully qualified covenant. Between 2013 and 2015, the sub tenant converted the first, second, third and fourth floors into self contained flats. The first and second floors were previously used as storage and office space, and the existing planning permission did not allow residential use. The former landlord (the Appellants predecessor in title) reserved its position on a planning application until the works were completed. At that point, the tenant sought the former landlords consent to apply for planning permission to use those two floors residentially. The former landlord believed a change of use would damage its own financial interests. The majority of the building would become residential which, in turn, would give the tenant the chance to compulsorily acquire the freehold under the Leasehold Reform Act 1967 (a process called enfranchisement.) An increased risk of enfranchisement would devalue the landlords property. So the landlord refused consent to make a planning application for increased residential use. The tenant said this was unreasonable and challenged the landlords decision in the County Court. HHJ Collender agreed with the tenant, as did the Court of Appeal (Sir Terence Etherton MR, McCombe LJ and Lindblom LJ.) The landlord now appeals to the Supreme Court. The key question is whether the trial judge was right to find the landlord acted unreasonably in withholding consent. The Supreme Court allows the appeal by a majority of three to two. Lord Briggs gives the main judgment with which Lord Carnwath and Lord Hodge agree. Lady Arden and Lord Wilson each give a dissenting judgment. The circumstances in which a landlord may be asked to give consent under a fully qualified covenant are infinitely variable. In every case, the reasonableness of the landlords decision will be a question of fact and degree. This must be assessed by reference to the facts at the date of the tenants request, not what the parties contemplated when the lease was granted [27] [32]. The real issue in this case is whether the courts below were correct in construing the lease in such a way as to prevent the landlord from having regard to an increased risk of enfranchisement from residential use. Three reasons have been advanced in support of that conclusion [33] [34]. The first reason (adopted by the tenants counsel before the Supreme Court) is that refusal of consent under clause 3(19) is inconsistent with the landlords grant of rights under clause 3(11). The majority rejects this argument, holding that the two clauses must be read together. Under clause 3(19) the tenant must act consistently with planning legislation; so clause 3(11) only allows residential use of the building to the extent that it is permitted by the planning regime [34]; [36]. The second reason (adopted by HHJ Collender) is that clause 3(19) serves a limited purpose of protecting the landlord from liability which might arise under new planning conditions. But there is nothing to suggest that there is only one purpose for the existence of clause 3(19). The right approach is to decide whether the landlords refusal serves a purpose which is sufficiently connected with the landlord and tenant relationship: [37]. The third reason (adopted by the Court of Appeal) is that it makes no sense to allow the landlord to refuse planning permission to avoid the risk of enfranchisement, because a third party could apply for the same planning permission free of any such restraint and with the same adverse consequences to the landlord [18]; [34]. It is true that the landlord was vulnerable to enfranchisement if a third party sought planning permission. But, as a matter of fact, no third party did apply for planning permission. At the time of the tenants request, the landlords ability to refuse consent under clause 3(19) gave the landlord a real measure of protection against enfranchisement [38]. So the Court of Appeal made an error of law which requires the Supreme Court to consider the question of reasonableness for itself [39]. The Court considers that, on the undisputed facts, the landlord was acting reasonably in protecting the value of its property [40] [42]. Dissenting judgments of Lady Arden and Lord Wilson Lady Arden and Lord Wilson both rely on clause 3(11) which suggests the tenant may use the building for residential purposes. In their judgment, this cannot be cut down by the landlords power to refuse consent to a planning application [44]; [47]; [55] [60]. If so, this effectively rewrites clause 3(11) [61] [62]. Lady Arden reads the authorities as establishing that the court should make an assessment of all the circumstances to determine whether the consent was unreasonably refused. Here, the parties cannot have intended that the landlord should be able to protect itself against the risk of increased enfranchisement by refusing consent to a planning application for increased residential use [48] [50]. Lord Wilson emphasises that reasonableness is fact sensitive and considers that the Supreme Court has no reason to depart from the trial judges determination [63].
These two joined appeals raise the question of whether a property used wholly for commercial purposes may qualify as a house for the purposes of legislation governing the right to leasehold enfranchisement (i.e. the right of a lessee in certain circumstances compulsorily to acquire the freehold of the building from his/her landlord) [1]. In the Hosebay case, the respondents owned the leases of three buildings in central London which had originally been built as separate houses as part of a late Victorian terrace [10]. The leases restricted the use of the houses to use for residential purposes, but on the date when the respondent served notices on the appellants under s.8 of the Leasehold Reform Act 1967 (the 1967 Act) seeking compulsorily to acquire the freehold of the buildings, they were being used wholly as a self catering hotel [10,13]. In the Lexgorge case, the respondent owned the lease of a five storey building in central London also originally built as a house [16]. The terms of the lease restricted the use of the upper two floors of the building to residential flats [18]. On the date when the respondent served a notice under s.8 of the 1967 Act, the building was used wholly for office purposes [17]. The building was listed as a building of special architectural or historic interest, and English Heritages records described it as a terraced house [18]. The issue in both appeals was whether the properties constituted houses within the meaning of s.2(1) of the 1967 Act. This raised two separate but overlapping questions: (i) Were the buildings designed or adapted for living in? (ii) Were they houses reasonably so called? [8] Both elements of the definition were disputed by the appellants in the Hosebay case, but only second element of the definition was disputed by the appellant in the Lexgorge case [8]. The judge at first instance in each case concluded that the buildings were houses for the purposes the 1967 Act, and the Court of Appeal reluctantly upheld those decisions [1,2]. The Supreme Court unanimously allows both appeals. It holds that neither property constituted a house for the purposes of the 1967 Act on the date when the relevant statutory notice was served. The judgment of the Court is given by Lord Carnwath. The decision of the Court of Appeal was not the result intended by Parliament when, pursuant to the Commonhold and Leasehold Reform Act 2002, it removed the requirements of residence from the 1967 Act [3 5]. As far as possible, an interpretation of the 1967 Act which has the effect of conferring rights on lessees going beyond those which Parliament intended to confer should be avoided [6]. The first element of the definition of house in s.2(1) of the 1967 Act (i.e. designed or adapted for living in) looks to the identity or function of the building based on its physical characteristics, the second element (i.e. a house reasonably so called) ties the definition to the primary meaning of house as a single residence, as opposed to, for example, a hostel or a block of flats [9]. Both parts of the definition need to be read in the context of a statute which is about houses as places to live in, not about houses as pieces of architecture or features in a street scene [9]. As to the first part of the definition of house in s.2(1) of the 1967 Act, the words designed and adapted do not constitute alternative qualifying requirements, despite the literal meaning of the provision [34]. Context and common sense argue strongly against a definition turning principally on historic design, if that has long been superseded by adaptation to some other use [34]. The words is adapted in s.2(1) refer to the present state of the building and do not imply any particular degree of structural change [34,35]. As to the second part of the definition, the external and internal physical appearance of a building should not be treated as determinative of whether it is a house reasonably so called , nor should the terms of the lease be treated as a major factor [41]. The buildings in the Hosebay case were not houses reasonably so called [43]. The fact that they might look like houses and might be referred to as houses for some purposes was not sufficient to displace the fact that their use was entirely commercial [43]. It was unnecessary to decide whether the buildings were designed or adapted for living in [44]. The building in the Lexgorge case was also not a house reasonably so called because it was used wholly for office purposes [45]. The fact that it was designed as a house and is still described as a house for many purposes (such as architectural histories) was beside the point [45].
The appellants, all Algerian nationals, were suspected terrorists whom the Secretary of State proposed to deport to Algeria. It was common ground that Algeria was a country where torture was systematically practised by state officials and no state official had ever been prosecuted for it. The Secretary of State obtained assurances from the Algerian Government that the appellants rights not to be tortured or subjected to other ill treatment would be respected on return to Algeria. The Special Immigration Appeals Commission Act 1997 established an appeal system which allows where necessary for closed material procedures and the appointment of special advocates. If the Secretary of State wishes to adduce evidence which, for reasons of national security or other sufficient public interest reasons, cannot safely be communicated to the other party, SIACs rules and procedures provide for this to be done. In this case, however, it was one of the appellants who wished to adduce evidence from a witness (W), who had inside knowledge of the position in Algeria and asserted that, notwithstanding the Algerian Governments official assurances, those in the appellants positions were in fact likely to be subjected on return to torture or other ill treatment. W was prepared to give evidence in the appellants appeals to SIAC only on one unalterable condition: that his identity and evidence would by order remain absolutely and irrevocably confidential to SIAC and the parties to the appeals. W was concerned that the Secretary of State might otherwise seek to communicate his evidence to the Algerian authorities, if only to assess its veracity and reliability, and that her doing so would place him and/or his family in peril. The Secretary of State had two main objections to such an order being made. First, she would be unable to participate effectively in the conduct of the appeals before SIAC, being unable to test either the validity of the reasons asserted by W in support of his claimed need for confidentiality or the substance of Ws evidence itself. Secondly, the Secretary of State may find herself in possession of information pointing to the existence of a terrorist threat abroad or some other risk to national security, yet, bound by SIACs order, unable to alert the foreign state to the risk. This could gravely imperil future diplomatic relations with foreign states. The question in the appeals therefore was whether it was open to SIAC to make an order for an absolute and irreversible guarantee of total confidentiality in respect of Ws identity and evidence before the same were disclosed to the Secretary of State (in circumstances where it would nevertheless remain open to the Secretary of State to challenge the admissibility or weight of that evidence before SIAC in its determination of the substantive appeals). The Supreme Court unanimously allows the appeals. Lord Brown gives the leading judgment of the Court; Lord Dyson gives a concurring judgment. The fundamental objection of the Secretary of State to the proposed order, based on her concerns about being obliged to withhold vital information relating to national security from a foreign state, thereby imperilling future diplomatic relations, is unpersuasive [11] [13]. It must surely be a substantial defence to any diplomatic complaint by a foreign state that the Secretary of State is subject to a final and absolute court order prohibiting her from acting differently [14]. A number of recent international instruments are replete with statements urging states to ensure that witnesses are protected against ill treatment or intimidation, particularly in a human rights context [15]. The imperative need here is to maximise SIACs chances of arriving at the correct decision on the issue before them concerning the safety of the appellants on return to Algeria and, therefore, for SIAC to obtain all such evidence as may contribute to this task [18]. Accordingly, it is open to SIAC to make absolute and irreversible ex parte orders of the kind sought in this case and on occasion it may be appropriate to do so [19]. The power to make such orders should however be used most sparingly [19]. Before making one of the proposed ex parte orders, SIAC should require the very fullest disclosure from the applicant (A) of (a) the proposed evidence from As proposed witness (W), (b) the particular circumstances in which W claims to fear reprisals, and (c) how A and his legal advisers came to hear about Ws proposed evidence and what if any steps they have taken to encourage W to give that evidence in the usual way subject to the usual steps generally taken to safeguard witnesses in such circumstances (e.g. anonymity orders and hearings in private) [20]. SIAC should only then, in the interests of justice, grant such an order if it (1) is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and (2) has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals if his identity and the evidence that he is willing to give were disclosed to the relevant foreign state [34]. Notwithstanding the absolute and irreversible nature of the order, it should in addition be open to the Secretary of State, upon such order being made, to try to persuade SIAC either to seek from A and W a sufficient waiver of the ex parte order forbidding any further communication of the information, or, if such waiver proves unobtainable, to exclude or regard with additional scepticism the evidence submitted [21]. The Court, in permitting the making of such ex parte orders in the circumstances of this case, has in no way been influenced by the circumstances in which the Secretary of State is on occasion entitled to adduce evidence in closed proceedings divulged only to a special advocate and not to A. The scope of the orders sought here should not be regarded as levelling the playing field between the parties: the Secretary of State in cases before SIAC acts in the wider public interest and not as an interested party [22]. The same considerations and the same result would follow if the case engaging as it does here the rights of the appellants under article 3 of the ECHR raised a question under article 2 of the same. However, if the ground on which an appellant is resisting deportation is an alleged risk of breach of some other article of the ECHR (e.g. article 8), the balance will almost certainly be struck the other way. In those circumstances it would be inappropriate to make an ex parte order to protect the confidentiality of a witness [38].
Impact Funding Solutions (Impact) entered into a disbursements funding master agreement (DFMA) with solicitors, Barrington Support Services Ltd (Barrington), by which Impact, by entering into loan agreements with Barringtons clients, provided funds to Barrington to hold on behalf of its clients and to use to make disbursements in the conduct of its clients litigation in pursuit of damages for industrial deafness. Barrington failed to perform its professional duties towards its clients in the conduct of the litigation, by not investigating the merits of their claims adequately and through the misapplication of funds provided by Impact, breaching their duty of care to them. Barrington thereby put itself in breach of a warranty in its contract with Impact. Barringtons clients were not able to repay their loans. Impact sought to recover from Barrington the losses which it suffered on those loans by seeking damages for the breach of the warranty. On 30 March 2013, the High Court awarded Impact damages of 581,353.80, which represented the principal elements of the loans that would not have been made if Barrington had not breached its contract with Impact. On Barringtons insolvency, Impact seeks in this action to recover those losses from Barringtons professional indemnity insurers AIG Europe Ltd (AIG), under the Third Parties (Rights against Insurers) Act 1930. The issue in the appeal concerns the construction of an exclusion clause in Barringtons professional indemnity policy (the Policy). The relevant part of the exclusion clause provided that This policy shall not cover Loss in connection with any Claim or any loss: arising out of, based upon, or attributable to any breach by any Insured of terms of any contract or arrangement for the supply to, or use by, any Insured of goods or services in the course of providing Legal Services. The question is whether the DFMA falls within the scope of this exclusion clause, and as a result, the Policy excludes cover in relation to Impacts cause of action. On 13 December 2013, the High Court held that Impacts claim against AIG for an indemnity failed. In a judgment dated 3 February 2015 the Court of Appeal allowed Impacts appeal. AIG now appeals to the Supreme Court. The Supreme Court allows AIGs appeal by a majority of 4 to 1. Lord Hodge gives the lead judgment (with which Lord Mance, Lord Sumption and Lord Toulson agree). Lord Toulson gives a concurring judgment (with which Lord Mance, Lord Sumption and Lord Hodge agree). Lord Carnwath gives a dissenting judgment. Questions of Construction The general doctrine that exemption clauses should be construed narrowly, has no application to the relevant exclusion in this Policy. The extent of the cover in the Policy is therefore ascertained by construction of all its relevant terms without recourse to a doctrine relating to exemption clauses [7]. The insurance policy The boundaries of AIGs liability are ascertained by construing the broad statement of cover and also the broad exclusions in the context of the regulatory background [18]. Two questions arise: (i) whether the contract between Impact and Barrington was a contract by which Impact supplied services to Barrington in the course of Barringtons provision of legal services; and (ii) whether it is necessary to imply a restriction into the relevant Policy exclusion clause limiting its effect in order to make it consistent with the purpose of the Policy [18]. The DFMA and the resulting loans to Barringtons clients were a service which Impact provided to Barrington for four reasons. Firstly, Barrington contracted as a principal with Impact and not as agent for its clients. Secondly, Barrington clearly obtained a benefit from the funding of its disbursements. Thirdly, this was not an incidental or collateral benefit to Barrington derived from a service provided to its clients, but was part of a wider arrangement. Fourthly, it was a service for which Barrington paid the administration fee, undertook the onerous obligation to repay Impact if a client breached the credit agreement, entered into the obligation to indemnify Impact and gave the warranty to Impact on which Impact won its claim for damages against Barrington [29]. Therefore, the DFMA was a contract for the supply of services to Barrington [30, 46]. That conclusion accords well with the essential purpose of the Solicitors Indemnity Insurance Rules 2009 to protect the section of the public that makes use of the services of solicitors, the relevant clause in the 2009 Rules being substantially the same as the exclusion clause [46]. There is no basis for implying additional words into the exclusion in order to limit its scope. Marks & Spencer plc v BNP Paribas Securities Services [2015] 3 WLR 1843 confirmed that a term would be implied into a detailed contract only if, on an objective assessment of the terms of the contract, the term to be implied was necessary to give the contract business efficacy or was so obvious it went without saying [31]. Impacts cause of action under the DFMA is an independent cause of action. Excluding such a claim creates no incoherence in the Policy. Indeed, it would be consistent with the purpose of the Policy of ensuring that protection was provided to the clients of solicitors if such a claim were excluded [32]. In a dissenting judgment, Lord Carnwath would have dismissed the appeal, finding that the essential service provided by the DFMA was the provision of loans to Barringtons clients, not to Barrington. It may have had incidental benefits to Barrington, but that was not the essential purpose of the contract, nor was it a service comparable in any way to the supply of good or services for use in the practice [56].
The appellant is a Jamaican national who arrived in the United Kingdom on 9 October 1998 when he was seven years old. He has several criminal convictions, including two robberies that triggered deportation proceedings. On 17 July 2013, a deportation order was issued. He appealed to the First tier Tribunal (Immigration and Asylum Chamber) (FTT) against his proposed deportation, based on a claimed right to respect for his private life in the UK. It was accepted at the time that there was no family life in play. His appeal was dismissed, and he was refused permission to appeal to the Upper Tribunal (Immigration and Asylum Chamber) (UT). He exhausted his rights of appeal on 1 May 2015. On 13 May 2015, the appellants previous solicitors made further submissions to the Secretary of State, focusing on the fact that his partner at the time was pregnant. The submissions did not explicitly request that the deportation order be revoked, nor did they refer to human rights. The Secretary of State treated the representations as an application to revoke the deportation order on the basis that it would breach Article 8 of the ECHR. In a letter dated 23 June 2015, the Secretary of State concluded that deportation would not breach Article 8, refused to revoke the deportation order and decided that the submissions did not amount to a fresh human rights claim under paragraph 353 of the Immigration Rules (rule 353). The appellants son was born on 26 July 2015. The appellant made further submissions to the Secretary of State on 28 July 2015 regarding the birth of his son and providing documentation from the hospital. In a letter dated 31 July 2015, the Secretary of State again concluded that deportation would not breach Article 8 and that the further submissions did not amount to a fresh claim. The appellant appealed against the decision of 31 July 2015 but the FTT declined jurisdiction on the basis that there was no right of appeal against the decision. The UT dismissed his application for judicial review of the Secretary of States decision that the further representations were not a fresh claim and the FTTs decision that he had no right of appeal. On 4 May 2017, the Court of Appeal dismissed his appeal. The Supreme Court dismisses the appeal. Lord Lloyd Jones gives the sole judgment with which the other Justices agree. The question in this appeal is: where a person has already had a human rights claim refused and there is no pending appeal, do further submissions that rely on human rights grounds have to be accepted by the Secretary of State as a fresh claim in accordance with rule 353 if a decision in response to those representations is to attract a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) [1]? The appellant raises two principal arguments for why they do not. 1. BA (Nigeria) The appellant submits that the line of authority beginning with R v Secretary of State for the Home Department Ex p Onibiyo [1996] QB 768, which established that it was for the Secretary of State to decide whether further submissions constituted a fresh claim giving rise to a right of appeal, did not survive the Supreme Courts decision in BA (Nigeria) v Secretary of State for the Home Department [2009] UKSC 7 [26]. The Court disagrees as BA (Nigeria) was limited to cases where the further submissions have been rejected and there was an appealable decision [50]. Its reasons are as follows: (1) BA (Nigeria) established that, where the Secretary of State receives further submissions on which he makes an immigration decision within section 82 of the 2002 Act, in the absence of certification there will be an in country right of appeal. Onibiyo and rule 353, by contrast, address a prior issue of whether there is a claim requiring a decision at all [46]. (2) The 2002 Act, particularly the powers of certification under sections 94 and 96, does not render Onibiyo and rule 353 redundant. The effect of rule 353 is that no right of appeal ever arises, rather than only to limit to an out of country appeal, and it operates at a prior stage to section 94. Section 96(1) addresses a different aspect of renewed claims, as it applies where a person relies on a matter that could have been raised in an earlier appeal but has no satisfactory reason for not doing so [47]. (3) Parliament did not intend the 2002 Act to provide a comprehensive code for dealing with repeat claims or for rule 353 no longer to be effective. There was no attempt to repeal rule 353s predecessor and Parliament has approved subsequent amendments to the Immigration Rules that did not delete rule 353. Moreover, following the amendment of the 2002 Act in 2014, rule 353 was amended to ensure it applies to human rights claims and protection claims, which suggests it was still effective [48]. (4) The appellants broad reading of BA (Nigeria) is inconsistent with ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, in which the House of Lords held that the Secretary of State had erred in applying section 94(2) of the 2002 Act rather than rule 353 in considering further submissions. BA (Nigeria) merely decided that rule 353 has no part to play once there is an appealable immigration decision. It contains no express statement that it intends to overrule or depart from ZT (Kosovo), and it is extremely improbable that that was the intention [49]. 2. 2014 Amendments to the 2002 Act The appellant submits that the amendments to the 2002 Act effected by the Immigration Act 2014 fundamentally changed the operation of the statutory scheme, with the result that rule 353 no longer applies [58]. The Court rejects these submissions for the following reasons: (1) Referring to rule 353 to determine if subsequent submissions are a human rights claim does not result in the same words bearing different meanings. In BA (Nigeria) there was in each case a human rights claim, but there was a right of appeal against an immigration decision, so the interpretation of human rights claim did not need to refer to rule 353. In this case, the issue is the prior question of whether there is a claim at all [59]. (2) The 2014 amendments limit appeals to where there has been a refusal of a protection claim or a human rights claim, or the revocation of protection status. The structure and operation of section 82 remains unchanged. The amended section 82 does not relieve a person of the burden of establishing that the Secretary of State has refused a valid human rights claim [60]. (3) Parliament is presumed to legislate in the knowledge of and having regard to relevant judicial decisions. In the present context, the Court of Appeal in ZA (Nigeria) v Secretary of State for the Home Department [2010] EWCA Civ 926 had provided an authoritative explanation of the effect of BA (Nigeria). Parliament is therefore assumed to have legislated in light of a consistent line of authority establishing that a purported human rights claim short of the threshold of a fresh claim under rule 353 was not a claim at all. There is nothing in the 2014 amendments to suggest Parliament intended to enable repeated claims raising human rights issues to generate multiple appeals [62]. Therefore, human rights claim in section 82 of the amended 2002 Act means an original human rights claim or a fresh human rights claim within rule 353. As a result, the Secretary of States response to the appellants further submissions did not attract a right of appeal [64].
In 1974, there was much terrorist activity in Northern Ireland, a large part of which was generated by the Provisional Irish Republican Army (PIRA). On 13 June 1974, members of the Life Guards regiment of the British Army, under the command of the appellant, found a group of men loading material into a vehicle. A firefight ensued and arms and explosives were discovered in the vehicle. On 15 June 1974, a Life Guards patrol, also led by the appellant, was travelling on a road about 3.5 miles from the location of the firefight. They saw a man, Mr Cunningham, who appeared startled and confused. Mr Cunningham climbed a gate into a field and ran towards a fence. The appellant ordered the patrol to halt and three members, including the appellant, pursued Mr Cunningham. After shouting a number of commands to stop, the appellant and another soldier fired shots and Mr Cunningham was killed. It later transpired that he had limited intellectual capacity, that he was unarmed, and that he had been running towards his home. In 2015, the appellant was charged with the attempted murder of Mr Cunningham and with attempting to cause him grievous bodily harm. On 20 April 2016, the Director of Public Prosecutions (DPP) issued a certificate pursuant to section 1 of the Justice and Security (Northern Ireland) Act 2007 (the Act) directing that the appellant stand trial by a judge sitting without a jury. Section 1(2) of the Act provides that the DPP may issue such a certificate if he (a) suspects that any of the relevant conditions are met and (b) is satisfied that in view of this there is a risk that the administration of justice might be impaired if the trial were to be conducted with a jury. Condition 4 is defined by section 1(6) of the Act: Condition 4 is that the offence or any of the offences was committed to any extent (whether directly or indirectly) as a result of, in connection with or in response to religious or political hostility of one person or group of persons towards another person or group of persons. Section 7(1) of the Act reads: No court may entertain proceedings for questioning (whether by way of judicial review or otherwise) any decision or purported decision of the Director of Public Prosecutions for Northern Ireland in relation to the issue of a certificate under section 1, except on the grounds of (a) dishonesty, (b) bad faith, or (c) other exceptional circumstances (including in particular exceptional circumstances relating to lack of jurisdiction or error of law). The appellant was not made aware of the issue of the certificate until 5 May 2017. He sought to challenge the DPPs decision to issue the certificate by way of judicial review. He was unsuccessful before the Divisional Court, which certified the question of whether a true construction of condition 4 included a member of the armed forces shooting a person he suspected of being a member of the IRA. The appellant also seeks to challenge the DPPs decision on procedural grounds, arguing that he ought to have been provided with the reasons that the DPP was minded to issue a certificate and with the material on which his consideration of that question was based. He also claims that he should have been given the opportunity to make representations on whether a certificate should have been issued in advance of any decision on the matter. The Supreme Court unanimously dismisses the appeal. It holds that a true construction of condition 4 does include a member of the armed forces shooting a person he suspected of being a member of the IRA and it rejects the procedural challenges advanced by the appellant. Lord Kerr writes the judgment. The breadth of the power under section 1 of the Act is immediately apparent. The DPP need only suspect that one of the stipulated conditions is met and that there is a risk that the administration of justice might be impaired if there was a jury trial. These decisions can be of the instinctual, impressionistic kind. Whilst the DPP must be able to point to reasons for his decision, it may be based on unverified intelligence or suspicions, or on general experience, rather than on hard evidence [13]. The circumstances covered by condition 4 are also extremely wide. This covers offences committed to any extent (even if indirectly) in connection with or in response to religious or political hostility of one person or group of persons. The PIRA campaign in Northern Ireland was based on that organisations political hostility to continuing British rule and the incident which occurred a few days before Mr Cunningham was killed bore all the hallmarks of a PIRA operation. When this is considered, it is entirely unsurprising that the DPP should have concluded that the offences with which the appellant is charged were connected (directly or indirectly) with or in response to the political hostility of PIRA members against those who believe that Northern Ireland should remain a part of the UK [14]. The other exceptional circumstances referred to in section 7(1)(c) of the Act are not specified, but they must take their flavour from the preceding provisions and the succeeding words which particularise lack of jurisdiction and error of law. These are clear indications that the full panoply of judicial review superintendence is generally not available to challenge decisions under section 1 [16]. There is no need to consider the Explanatory Notes to the Act or the ministerial statements referred to by the appellant because the language of the relevant statutory provisions is clear [20] & [24]. Trial by jury should not be assumed to be the unique means of achieving fairness in the criminal process. Trial by jury can in certain circumstances be antithetical to a fair trial and the only assured means, where those circumstances obtain, of ensuring that the trial is fair is that it be conducted by a judge sitting without a jury.[34]. Further, although trial by jury has been referred to as a right, it is not an absolute right. Moreover, the right has been restricted by the express provisions of the Act and must yield to the need to ensure that a trial is fair [37]. Although it has been argued that the DPP erred in stating that section 1(1) should be broadly interpreted, this is irrelevant so long as (a) he acted within his powers and (b) any misapprehension was immaterial to the decision he took. On the facts of this case, it is clear that the DPP was bound to have made the decision even if he had considered that section 1 had to be construed narrowly [44]. As to whether he acted within his powers, the DPP took proper steps to allow him to consider whether he suspected that condition 4 was met [47]. He also addressed whether there was a risk that the administration of justice would be impaired and his conclusion was entirely unsurprising [48]. As to the procedural argument, section 7 expressly provides that a judicial review challenge is only admissible on grounds of bad faith, dishonesty, or other exceptional circumstances. This is not a case of bad faith or dishonesty [54]. Whilst the appellant claims that this case falls into the exceptional circumstances category because of the fundamental right to a jury trial, the fundamental right is to a fair trial. Whilst there is a right to a jury trial, this cannot make this case an exceptional one, particularly in the context of a statute whose purpose is to prescribe the circumstances in which someone can be denied the right to a jury trial [55]. There are no circumstances in this case which could be said to be exceptional within the terms of section 7(1)(c) of the Act [62].
Cameron Mathieson was born on 19 June 2007 and sadly passed away on 12 October 2012. He was diagnosed with cystic fibrosis and Duchenne muscular dystrophy soon after he was born, and his parents went to great lengths to meet his exceptional and complex care needs during his short life [3]. They received, on his behalf, the state benefit known as Disability Living Allowance (DLA). Camerons disabilities were so severe that he was entitled to the highest rates of the care component and the higher rate of the mobility component of DLA [8 10]. On 4 July 2010 Cameron was admitted to Alder Hey Hospital in Liverpool for symptoms of chronic bowel obstruction. He remained there as an inpatient until 4 August 2011 [4]. During his stay one or other of his parents was present in the hospital at all times. They remained his primary caregivers, including administering twice daily physiotherapy, giving nebulised antibiotics, feeding him via a nasogastric tube, and changing his stoma bag up to eight times a day [5]. The additional costs incurred by the family over the duration of Camerons hospital admission, including the costs of travel from their home in Warrington, amounted to around 8,000 [6]. Regulations 8(1), 10, 12A and 12B of the Social Security (Disability Living Allowance) Regulations 1991 (the 1991 Regulations) together provide that a child under 16 will cease to receive DLA after the 84th day of his or her admission as an inpatient in an NHS hospital [12]. In the case of a person aged 16 or over, DLA is withdrawn after the 28th day. On 3 November 2010 the Secretary of State decided that Camerons DLA should be suspended effective from 6 October 2010 on grounds that he had been an inpatient at Alder Hey for more than 84 days [13]. The Mathieson family continued to receive other state benefits including child benefit, child tax credit, and income support [15]. However, the suspension of DLA from October 2010 to August 2011 amounted to a loss of about 7,000 [14]. Cameron challenged the Secretary of States decision in the First tier Tribunal (Social Security and Child Support), which dismissed his appeal on 10 January 2012. After Cameron died, his father continued the proceedings in his stead [2].The Upper Tribunal (Administrative Appeals Chamber) dismissed Mr Mathiesons further appeal on 15 January 2013, as did the Court of Appeal on 5 February 2014. The Supreme Court unanimously allows the appeal, sets aside the Secretary of States decision and substitutes the decision that Cameron Mathieson was entitled to continued payment of DLA with effect from 6 October 2010 [48]. Lord Wilson (with whom Lady Hale, Lord Clarke and Lord Reed agree) gives the leading judgment. Lord Mance (with whom Lord Clarke and Lord Reed agree) gives a concurring judgment. Camerons father, Mr Mathieson, in taking forward the appeal contended that the 84 day rule breached Article 14 of the European Convention on Human Rights (ECHR), which provides: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, or other status [16]. It was conceded by the Secretary of State that the provision of DLA falls within the scope of Article 1 of Protocol 1 ECHR, which protects the peaceful enjoyment of possessions [18]. Therefore, the government is obliged to administer DLA without discrimination on any of the identified grounds [17]. The ground relied upon by Mr Mathieson was other status, namely that of being a severely disabled child in need of lengthy inpatient hospital treatment [19]. Lord Wilson concludes that such status falls within the grounds of discrimination prohibited by Article 14: disability has been found to be a prohibited ground, and discrimination between disabled persons with different needs equally engages Article 14 [23]. Lord Mance, in his concurring judgment, prefers to formulate the relevant status as being that of a child in an NHS hospital for over 84 days, rather than a private hospital [60]. Lord Wilson goes on to consider whether the difference in treatment in withdrawing DLA from children in hospital for longer than 84 days was justified, or whether it amounted to unlawful discrimination. A difference in treatment on a prohibited ground will be justified if it pursues a legitimate aim and there is a reasonable relationship of proportionality between the means employed and the aim sought to be realised [24]. In the area of welfare benefits, a court will not interfere with the governments approach unless the rule applied is manifestly without reasonable foundation [26]. Neither will a bright line rule be invalidated because hard cases fall on the wrong side of it, provided that the rule is beneficial overall [27]. In this case, the governments aim in imposing the 84 day rule was to avoid overlapping provision to meet disability related needs [28]. However, the court was presented with evidence showing that the disability related needs of children in hospital are far from being entirely met by the NHS. Since the 1980s, parental participation in the care of a child in hospital has been increasingly encouraged and ultimately become the norm [30]. An online survey of families with disabled children showed that almost all carers provide the same or a greater level of care when their child is in hospital rather than at home, and bear increased costs [33]. The Citizens Advice Bureau confirmed that parents are positively required to take an active part in their childs medical management in hospital, and that financial difficulties arise due to expenditure on travel, meals and childcare for siblings, together with loss of parental earnings [35]. This evidence (to which the Secretary of State did not adduce any material in response) demonstrated that the Mathiesons situation was not a hard case; rather, the personal and financial demands made on the substantial majority of parents with disabled children in hospital are at least no less than when they care for them at home [36]. Therefore, state provision for disabled children in hospital is not overlapping to an extent which justifies the suspension of DLA after the 84th day. This conclusion is in harmony with the rights afforded to Cameron under international law by the UN Convention on the Rights of the Child and the UN Convention on the Rights of Persons with Disabilities [44]. Although Mr Mathieson invites the court to disapply the provisions for the suspension of DLA under the 1991 Regulations in the case of children, the court declines to do so, leaving it to the Secretary of State to decide what measures should be taken to avoid the violation of the rights of disabled children such as Cameron following their 84th day in hospital [49].
Normally, when a car distributor buys a demonstrator car from the manufacturer, it pays VAT on the full wholesale price (input tax). Then, when it eventually sells the car to a customer, it collects VAT on the full retail price (output tax). It accounts to HMRC for the output tax it has collected less the input tax it has paid. The Pendragon Group, the largest car sales group in Europe, used a scheme devised by KPMG to reduce its VAT liability on two occasions in late 2000 and early 2001. The KPMG scheme exploited three exceptions to the normal incidence of VAT so that Pendragon would only have to account for VAT in respect of the difference between the wholesale purchase price and the retail sale price of its demonstrator cars. The scheme worked as follows. Step 1: Pendragon bought cars from a wholesaler, then sold them to four captive leasing companies (CLCs). Pendragon paid input tax on the wholesale purchase price but recovered it by accounting for output tax received when the cars were sold to the CLCs. Step 2: The CLCs immediately leased the cars to Pendragon dealerships. The CLCs paid input tax on the purchase of the cars from Pendragon but recovered it by accounting for output tax paid by the Pendragon dealerships on their rental payments under the leases. Step 3: The CLCs then assigned the leases and their title in the cars to the offshore bank Soc Gen Jersey (SGJ). They received approximately 20m (financed by SG London, which received a further assignment of the assets as security). The assignment to an offshore bank was not a supply for VAT purposes and so no VAT was payable. Step 4: Some 30 to 45 days later, SGJ transferred as a going concern the lease agreements and title in the cars to Captive Co 5. It also sold as a business the hire of cars said to have been carried on by SGJ. The total consideration exceeded 18m, with 100,000 in respect of goodwill. The sale of the business as a going concern was not a supply for VAT purposes and so no VAT was payable. Step 5: The demonstrator cars were sold to customers by the dealerships, acting as agents for Captive Co 5. Customers paid VAT only on Captive Co 5s profit on the sale, rather than on the total sale price, under the profit margin scheme, which is available under domestic law where the goods were acquired as part of a business transferred as a going concern. It is common ground that the scheme technically worked, in that the transactions at steps 3 and 4 satisfied the conditions for exemption from VAT, and the transaction at step 5 satisfied the conditions for the application of the margin scheme. However, VAT is an EU tax (governed at the time by the Sixth Directive) and subject to the EU law principle of abuse of law. The First Tier Tribunal held that the scheme was not abusive. The Upper Tier Tribunal held that it was. The Court of Appeal restored the decision of the First Tier Tribunal. HMRC now appeals to the Supreme Court. It argues that the scheme was abusive and that Pendragon should have to pay to it the VAT avoided under the scheme. The Supreme Court unanimously allows the appeal and holds that the scheme was abusive. Lord Sumption, with whom all members of the Court agree, gives the leading judgment. Lord Carnwath adds further comments on the role of the Upper Tribunal. In Halifax plc v Customs and Excise Commissioners (Case C 255/02) [2006] STC 919, the Grand Chamber said that, in the sphere of VAT, an abusive practice can be found to exist only if two conditions are met. [7] The first condition is that it must be shown that the transactions concerned result in a tax advantage which would be contrary to the purpose of the conditions laid down in the relevant EU Directive and implementing national legislation. One must assume that it is the purpose of the VAT Directives to accommodate normal commercial transactions. [11] This condition is satisfied. The purpose of VAT is to tax consumption. The direct purpose of the margin scheme is to grant relief to traders who have acquired goods from a supplier who had no right to deduct input tax in respect of their own acquisition of them. The indirect purpose of the margin scheme is thereby to avoid double taxation, since second hand goods may already have been the subject of a net VAT charge at some earlier stage in their history. [14 20] In this case, a system designed to prevent double taxation has been exploited so as to prevent any taxation at all. [30] The fact that the margin scheme will sometimes apply in cases where there was no earlier net VAT charge is simply the consequence of designing a workable scheme. [22 23] Even if the margin scheme is made available by domestic rather than EU law, the underlying purpose of the margin scheme remains the same, and general principles of EU law, including the abuse of law principle, still apply; in any event, it must have been intended that the abuse of law principle should apply even as a matter of English domestic law. [24 29] The second condition is that it must be objectively apparent that the essential aim of the transactions is to obtain a tax advantage. Even if a transaction has a legitimate commercial purpose, it is open to challenge if the accrual of a tax advantage constitutes its principal aim. [12] The scheme should be assessed as a whole. [13] This condition is also satisfied. It is not in itself objectionable that Pendragon chose to enter into a transaction with an offshore bank. However, it was essential to the scheme that Captive Co 5 acquire the cars as part of a business as a going concern, and for that to be possible, it was essential that the transferor of the business have acquired the cars by assignment. These steps were manifestly included for the sole purpose of reducing VAT liability. [31 34] Abusive transactions must be redefined so as to re establish the situation which would have prevailed absent the abusive practice. [8] This transaction should be redefined by stripping out the five captive companies, so that the dealerships will be accountable for VAT on the full second hand price. [41 42] The Court of Appeal held that the Upper Tribunal exceeded its proper appellate role by substituting its own decision for a decision of the First Tier Tribunal based on an evaluation of competing factors. In Lord Sumptions opinion, the Upper Tribunal was entitled to intervene because the First Tier Tribunal erred in law. [35 40] Lord Carnwath adds that the Tribunals, Courts and Enforcement Act 2007 now provides that, where the Upper Tribunal finds that the First Tier Tribunal has erred in law, it may itself remake the decision, including by making further findings of fact. It was appropriate for the Upper Tribunal to do so in this case in order to give guidance on the abuse principle. It was their decision rather than that of the First Tier Tribunal which should have been the main focus of the Court of Appeals consideration. [44 51]
From 1982 to 1986, Professor Shanks (the appellant) was employed by Unilever UK Central Resources Ltd (CRL). CRL employed the UK based research staff of the Unilever group of companies (Unilever). It was not a trading company and was a wholly owned subsidiary of Unilever plc. While employed by CRL, Professor Shanks conceived an invention, the rights to which belonged to CRL from the outset under the Patents Act 1977 (the 1977 Act). CRL assigned those rights to Unilever plc for 100. Unilever was later granted various patents relating to the invention (the Shanks patents). Over time, Unilever derived a net benefit from the Shanks patents of approximately 24.3 million. On 9 June 2006, Professor Shanks applied for compensation under section 40 of the 1977 Act on the basis that the Shanks patents had been of outstanding benefit to CRL and that he was entitled to a fair share of that benefit. On 21 June 2013, the hearing officer acting for the Comptroller General of Patents (the Comptroller) found that, having regard to the size and nature of Unilevers business, the benefit provided by the Shanks patents fell short of being outstanding. Professor Shanks appealed to the High Court and Mr Justice Arnold dismissed the appeal. Professor Shanks then appealed to the Court of Appeal. That appeal succeeded in part, but the Court of Appeal found that Professor Shanks was not entitled to compensation. Professor Shanks now appeals to the Supreme Court. The Supreme Court allows the appeal. Lord Kitchin gives the sole judgment, with which the other Justices agree. An employee who makes an invention which belongs to his or her employer from the outset and for which a patent has been granted is entitled to compensation if he or she establishes: first, that the patent is, having regard among other things to the size and nature of the employers undertaking, of outstanding benefit to the employer; and secondly, that, by reason of these matters, it is just that he or she be awarded compensation [30]. At least in the ordinary case, Parliament intended the term employer to mean the inventors actual employer [31]. The relevant benefit is the benefit the inventors actual employer has derived or may reasonably be expected to derive from the patent, or from the assignment or grant to a person connected with him of any right in the invention, patent or patent application [32]. In assessing the benefit derived or expected to be derived by an employer from an assignment of the patent to a person connected with the employer (the circumstances of this case), the court must consider the position of the actual employer and the benefit which the assignee has in fact gained or is expected to gain [33]. Previous cases on applications for inventor compensation are helpful to a point, but they provide no substitute for the statutory test, which requires the benefit to be outstanding. That is an ordinary English word meaning exceptional or such as to stand out and it refers to the benefit (in terms of money or moneys worth) of the patent to the employer rather than the degree of inventiveness of the employee. It is, however, both a relative and qualitative term and the context must be considered [39]. An undertaking is a unit or entity which carries on a business activity, and here the undertaking to be considered is that of the company or other entity which employs the inventor [41]. The correct approach in identifying the relevant undertaking is to look at the commercial reality of the situation. Where a group company operates a research facility for the benefit of the whole group and the work results in patents which are assigned to other group members for their benefit, the focus of the inquiry into whether any one of those patents is of outstanding benefit to the company must be the extent of the benefit of that patent to the group and how that compares with the benefits derived by the group from other patents for inventions arising from the research carried out by that company [48]. A highly material consideration is the extent of the benefit of the Shanks patents to the Unilever group and how that compares with the benefits the group derived from other patents resulting from the work carried out at CRL [51]. The court should take into account matters such as the fact that a large undertaking might be able to harness its goodwill and sales force in a way that a smaller undertaking could not do [53]. However, a tribunal should be very cautious before accepting a submission that a patent has not been of outstanding benefit to an employer simply because it has had no significant impact on its overall profitability or the value of all of its sales [54]. As to the relevance of tax, the employee must account for any tax due on his or her fair share and the employer must account for any tax due on the balance. This approach is consonant with the legislative purpose of the provisions of the 1977 Act and is fairer than an approach which requires the employer to pay the employee a share of the benefit net of tax [58]. Separately, if the benefit is outstanding, then the fair share of the benefit should reflect the deleterious effect on the real value of money of the substantial time between Unilevers receipt of the licence fees and other moneys and its making of any payment of compensation [66]. The 1977 Act does not bar the Comptroller from having regard to the impact of inflation. This approach is not unduly complex and should not encourage delay [67]. The hearing officers assessment of the benefit of the Shanks patents was flawed. First, he adopted the wrong starting point. CRLs undertaking for the purposes of section 40 was the business of generating inventions and providing those inventions and the patents which protected them to Unilever for use in connection with its business [79]. Secondly, the hearing officers particular focus upon the overall turnover and profits generated by Unilever was misdirected [80]. Thirdly, it cannot be said that the size and success of Unilevers business as a whole played any material part in securing the benefit it has enjoyed from the Shanks patents, and the hearing officer failed to take into account relevant matters [81]. Fourthly, the hearing officer wrongly adopted an approach which involved assessing the extent and nature of the benefit derived from a patent simply by comparing it to the patent owners overall turnover or profits [82]. The hearing officers decision must be set aside [84]. The benefit Unilever enjoyed from the Shanks patents was outstanding within the meaning of section 40 [85]. Mr Justice Arnold was wrong to find that 3% would have represented a fair share of the benefit Unilever enjoyed from the Shanks patents [90]. It would not be appropriate to interfere with the hearing officers conclusion that 5% would have been a fair share [91]. The fair share to which Professor Shanks is entitled is 2m and the appeal is allowed [92 93].
This appeal concerns the liability of employers in the knitting industry of Derbyshire and Nottinghamshire for hearing loss suffered by employees prior to 1 January 1990. The central issue is whether liability existed at common law in negligence and/or under s.29(1) of the Factories Act 1961 towards an employee who suffered noise induced hearing loss due to exposure to noise levels between 85 and 90dB(A)lepd. Mrs Baker, the Respondent, worked in a factory in Sutton in Ashfield, Nottinghamshire, from 1971 until 2001. From 1971 to 1989 she was exposed to noise which was found at trial to have been between 85 and 90dB(A)lepd and which had led to her sustaining a degree of noise induced hearing loss. The measure db(A)lepd indicates exposure at a given sound level over a period of eight hours. Mrs Baker brought a claim against her employers, for whom liability now rests with Quantum Clothing Group Ltd, one of the Appellants. A number of other individuals brought similar claims against Meridian Ltd, Pretty Polly Ltd and Guy Warwick Ltd, and all the claims were decided together as test cases. Only Mrs Baker was found to have suffered hearing loss due to noise exposure in her employment and the other claims were therefore dismissed. Mrs Bakers claim was dismissed on the different basis that her employers had not committed any breach of common law or statutory duty. The Court of Appeal allowed an appeal by Mrs Baker and reached conclusions less favourable to all four employers than those arrived at by the judge at first instance. The Court held that liability at common law arose in January 1988 for employers with an average degree of knowledge, which included Guy Warwick. Quantum, Meridian and Pretty Polly were found to have had greater than average knowledge and were liable at common law from late 1983. S.29(1) of the Factories Act 1961 provides that, every place at which any person has at any time to work shall, so far as is reasonably practicable, be made and kept safe for any person working there. The Court held that the section imposes a more stringent liability than at common law and in particular that what was safe was to be judged irrespective of whatever was regarded as an acceptable risk at the time. On this basis the Court held that the date from which liability arose under the section was January 1978. The present appeal has been brought by Quantum, Meridian and Pretty Polly, with Guy Warwick intervening. The Supreme Court allows the appeal by a majority of 3:2 and restores the judges decision at first instance. Lord Mance gives the lead judgment. Lord Dyson gives an additional concurring judgment, and Lord Saville agrees with both. Lord Kerr and Lord Clarke give dissenting judgments. The Supreme Court first dealt with common law liability in negligence. The central question was whether a 1972 Code of Practice published by the Department of Employment, which recommended a noise exposure limit of 90dB(A)lepd, constituted an acceptable standard for average employers to adhere to during the 1970s and 1980s. The judge at first instance had found that it did until the terms of a draft European Directive of 1986, which proposed a lower limit, came to be generally known in 1988 via a consultative document. The Court upheld that conclusion of the judge. Examination of the underlying statistical material did not undermine the relevance of the Code as a guide to acceptable practice. It was official and clear guidance which set an appropriate standard upon which a reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s. The Court also endorsed a further two year period beyond 1988 allowed by the judge for implementing protective measures, thus meaning that the average employer had no common law liability before 1 January 1990. The Court of Appeal had been incorrect to replace that period with a period of six to nine months. On the facts, Quantum and Guy Warwick were in the position of average employers to whom the 1 January 1990 date applied. Courtaulds and Pretty Polly, however, were in a special position. By the beginning of 1983 they had an understanding of the risk that some workers would suffer damage from exposure to between 85 and 90dB(A)lepd, which distinguished their position from that of the average employer. Allowing a further two years to implement protective measures, they were potentially liable at common law from the beginning of 1985. The Court then dealt with liability under s.29(1) of the 1961 Act. In construing the section, the Court first held that a workplace may be unsafe within the meaning of the section not only due to its physical fabric, but also due to activities carried on in it. The next question was whether the section applies to risks created by noise. The Court held that it did, on the basis that the section could accommodate attitudes to safety that were not held at the time when it was enacted. Thirdly, the Court held that what is safe is a relative concept that must be judged having regard to general knowledge and standards at the time of the alleged breach of duty. Finally, the Court held that the qualification, so far as is reasonably practicable, also allows such general knowledge and standards to be taken into account. Applying that construction, the section did not impose in this respect a more stringent liability than at common law. The employers by complying with the Code of Practice were not in breach of the statutory duty before like dates as those from which they were potentially liable at common law. Lord Kerr and Lord Clarke dissented. They held that the terms of the Code of Practice and other material available by 1976 were such that employers should have been aware that damage to hearing could occur at levels below 90dB(A)lepd and that certain individuals in the workforce would be particularly vulnerable at those levels. Further, the employers should have been aware that they could have reduced that risk at not inordinate cost by the provision of ear protection. Liability therefore arose at common law from the late 1970s onwards. As to liability under s.29(1), the concept of safety, unlike the qualification of reasonable practicability, does not include an assessment of what was foreseeable at the time. On the facts, the workplaces were not safe and it was reasonably practicable to provide ear protection. The dissenting Justices therefore held that employers were liable under the section from 1978 as held by the Court of Appeal.
Local authority rates are payable in respect of the rateable occupation of hereditaments. Rates are a tax on property and hereditaments are the units of assessment. The statutory definition of hereditament in section 115(1) of the General Rate Act 1967 states that it is such a unit of property which is, or would fall to be, shown as a separate item in the valuation list. Where different parts of an office building are occupied by the same occupier, the ordinary practice of the valuer is to enter them as a single hereditament if they are contiguous, but as separate hereditaments if they are not. The property in question in this appeal, Tower Bridge House, is an eight storey office block in St Katherines Way, London. Mazars, a firm of chartered accountants, occupies the second and sixth floors of the building under separate leases. These floors are separated by common areas in the building and were entered in the 2005 rating list as separate hereditaments. In February 2010 Mazars applied to the Valuation Tribunal for England (VTE) to merge the two entries to form a single hereditament. The VTE agreed that the two entries should be merged. The Valuation Officer, Mr Woolway, appealed to the Upper Tribunal (Lands Chamber) on the grounds that the properties were two separate hereditaments. The Upper Tribunal confirmed that the premises could be treated as one hereditament. The Court of Appeal dismissed Mr Woolways appeal. Mr Woolway appeals to the Supreme Court. The Supreme Court unanimously allows the appeal. Lord Sumption gives the leading judgment and Lord Neuberger, Lord Carnwath and Lord Gill give separate concurring judgments. The question in this appeal is how different storeys under common occupation in the same block are to be entered in the rating list for the purpose of non domestic rating [1]. Three broad principles apply in answering this question. The primary test is geographical, being based on visual or cartographic unity. Contiguous spaces will normally possess this characteristic, but unity is not simply a question of contiguity. If contiguous units do not intercommunicate and can be accessed via other property of which the common occupier is not in exclusive possession, this will be a strong indication that they are separate hereditaments. Second, where two spaces are geographically distinct, a functional test may nevertheless enable them to be treated as a single hereditament, but only where the use of the one is necessary to the effectual enjoyment of the other. Third, the question whether the use of one section is necessary to the effectual enjoyment of the other depends not on the business needs of the ratepayer but on the objectively ascertainable character of the premises. This calls for a factual judgment on the part of the valuer, exercising professional common sense [12]. In the present case neither a geographical nor a functional test was applied [20]. The appeal is allowed therefore. The orders of the Valuation Tribunal and Upper Tribunal are set aside and the Court makes a declaration that the premises demised to Mazars on the second and sixth storeys of Tower Bridge House are to be entered in the rating lists as separate hereditaments [22]. In his concurring judgment, Lord Gill emphasises that the reference to functionality in the tests articulated by Lord Sumption does not refer to the use which the ratepayer chooses to make of the premises. Rather, it is a reference to the necessary interdependence of the separate parts of the property that is objectively ascertainable [39]. The concept of fairness has no place in the application of the three principles laid down by Lord Sumption, which provide straightforward and workable guidance [40]. Contiguity is not the decisive criterion in the geographical tests. Properties that are discontinguous but geographically linked may constitute one hereditament if the occupation of one part would be pointless without the occupation of the other [41]. The discontiguity between the offices in question lies in the fact that the only access between them is through the public part of the building, not whether they are vertically or horizontally adjacent [43]. Lord Neuberger, concurring with Lord Sumption and Lord Gill, concludes that a hereditament is a self contained piece of property, namely all parts of which are physically accessible from all other parts, without having to go onto other property [47]. Where premises consist of two self contained pieces of property it would require relatively exceptional facts before they could be treated as a single hereditament. The mere fact that each property may have the same occupier should, normally, make no difference [51]. If, however, one property could not be sensible occupied or let other than with the other property, they should normally be treated as single hereditament [52]. In order to decide whether two separate self contained units of property constitute a single hereditament the relationship between the two properties should be considered. The plant, machinery and other fixtures which form part of the property for rating purposes are relevant to this consideration [55]. Two separate self contained floors in the same office building, whether or not they are contiguous, cannot be said to constitute a single hereditament, at least in the absence of very unusual facts. Once they cease to be self contained, so that each floor is accessible from the other without going onto other property, then the two hereditaments will normally be treated as having been converted into one larger hereditament [56]. Lord Carnwath agrees with the judgment of Lord Sumption but does not express a concluded view on the treatment of contiguous floors [62].
Newhaven is a port town on the mouth of the River Ouse in East Sussex; its harbour (the Harbour) has existed since the mid sixteenth century. The Newhaven Harbour and Ouse Lower Navigation Act 1847 established harbour trustees with powers to maintain and support the Harbour and associated works. The Newhaven Harbour Improvement Act 1878, transferred these powers to the Newhaven Harbour Company. That Act also conferred on the Harbour Company the power to make byelaws in the manner prescribed by the Harbours, Docks and Piers Clauses Act 1847. In 1931, byelaws were made regulating access to the Harbour and the use of the Harbour for (among other things) fishing, playing sports or games and dog walking (the Byelaws). The Harbour was subsequently vested in Newhaven Port and Properties Limited (NPP) in 1991 by statutory instrument (the 1991 Newhaven Order). West Beach (the Beach) is part of the operational land of the Harbour, and is subject to statutory provisions and to the Byelaws. NPP is obliged to maintain and support the Harbour and it has powers including the dredging of the sea bed and the foreshore In December 2008 Newhaven Town Council applied to the County Council to register the beach as a town or village green on the basis that it had been used by a significant number of local inhabitants as of right for a period of at least 20 years. The issue raised by this appeal is whether the County Council was wrong in law to decide to register the Beach as a village green under the Commons Act 2006. This was on the basis either: (i) that the public enjoyed an implied licence to use the foreshore and therefore the use was not as of right; (ii) that the public enjoyed an implied licence arising from the Byelaws and therefore the use was not as of right; or (iii) that in any event, the Commons Act 2006 cannot be interpreted so as to enable registration of land as a town or village green if such registration was incompatible with some other statutory function. The Supreme Court unanimously allows the appeal. Lord Neuberger and Lord Hodge (with whom Lady Hale and Lord Sumption agree) give the main judgment, allowing the appeal on both the second and third ground. Lord Carnwath (who writes a concurring judgment) would have preferred not to reach any decision on the third ground as it was not necessary to do so in order to dispose of the appeal. Use as of right means use without any right, whether derived from custom and usage, statute, prescription or express or implied permission of the owner. NPP argued that the public enjoyed an implied licence to use the foreshore for sports and pastimes and therefore that use was not as of right. In the alternative they argued that the public had an implied licence to use the Beach arising from the Byelaws. In the further alternative they argued that the Commons Act 2006 could not be interpreted so as to enable registration in circumstances where registration was incompatible with some other statutory function to which the land was to be put, that is, as a working harbour [23 24]. Implied licence to use the foreshore In the absence of express permission from the owner of the foreshore, there are three possible conclusions on the legal basis of the publics use of the foreshore for bathing; (i) there exists a general common law right to use the foreshore for bathing; (ii) the owner of the foreshore is presumed to permit members of the public to use the foreshore for bathing until the owner revokes this implied permission; or (iii) no such right exists and members of the public who do so are trespassers [29]. However, given the difficulty of the issues raised, it seems that, unless necessary to do so for the purpose of determining this appeal, the Court ought not to determine the first issue; it is therefore best to proceed on the assumption that, so far as the general common law is concerned, members of the public used the Beach for bathing as of right and not by right [50 51] Lord Carnwaths concurring judgment offers further discussion and analysis on the question of public rights over the foreshore and the approach taken in Scotland, New Zealand and the United States [105 140]. Implied licence from byelaws A byelaw can permit an activity which would otherwise be unlawful; there is nothing in the wide words of the 1847 Clauses Act to prevent byelaws created under that Act from creating such a permission [54 56]. Moreover, a prohibition can be expressed in such a way as to imply a permission; a requirement that dogs in a park must be kept on a lead implies a permission to bring dogs into the park [57 58]. A normal speaker of English reading the Byelaws would assume that he or she was permitted to bathe or play provided the activity did not fall foul of the restrictions in the Byelaws [60 63]. The only remaining question was whether the Byelaw needed to be brought to the publics attention for this implied licence to exist. It is not always necessary for the landowner to show that members of the public have to have had it drawn to their attention that their use of land was permitted in order their use to be treated as being by right. In this case there existed a public law right for the public to go onto the land and to use it for recreational purposes, and therefore, the recreational use of the land in question by inhabitants of the locality was by right and not as of right [69 71]. It follows that NPPs appeal should be allowed on the second issue [74]. Statutory incompatibility The statutory scheme for registering town and village greens is analogous to the acquisition of rights over land by long use (prescription) under English and Scots law. Under both English and Scots law, it is not possible to acquire rights by prescription against a public authority which had acquired land for specified statutory purposes and continued to carry out those purposes, when the use of the land would be incompatible with those statutory purposes [91]. The question of incompatibility is one of the statutory construction and some assistance may be obtained from the rule that a later general provision does not depart from an earlier special one [93].The registration of the Beach as a town or village green would make it a criminal offence to damage the green or interrupt its use as a place for exercise and recreation. Registration would clearly be incompatible with the use of the Harbour as a working harbour [95 97]. It follows that the Commons Act 2006 cannot operate in respect of the Beach by reason of statutory incompatibility [101 102].
The First Appellant, Jane Steel, is a solicitor. In 2007 she was a partner in Bell & Scott LLP, the Second Appellant, who were a firm of solicitors in Glasgow. In her capacity as a solicitor Ms Steel had, for many years, acted for a Mr Hamish Munro, and subsequently a company in which he had an interest Headway Caledonian Ltd. This company was the registered owner of Cadzow Business Park in Hamilton, a property which comprised four different units, and had been registered with the Land Register in two separate titles. When the business park was purchased Headway Caledonian had granted the Respondent, NRAM, an all sums standard security over the property, which had been registered against the titles in 1998. In addition, in 2002, Headway had granted NRAM a floating charge over all its assets. In 2006 Headway entered into a contract for the sale of Unit 1 of the park and a request was duly made to NRAM to release this unit from its security. This was agreed by NRAM, in consideration of a repayment of 495,000, and it was understood by both parties that after the sale the security would remain in place in relation to Units 2 and 4 (Unit 3 having already been sold in 2005). The sale was due to complete on 23 March 2007. At 5pm on 22 March Ms Steel sent an email to NRAM asking for a letter of non crystallisation of the floating charge, and for the execution of two draft deeds of discharge. Ms Steel wrote: I also attach discharges for signing and returnas the whole loan is being paid off for the estate and I have a settlement figure for that. This request was not queried by NRAM, and the two deeds of discharge (which referred to the discharge of security over all three of the remaining units, rather than just Unit 1) were executed and a letter of non crystallisation drafted and signed. The letter was signed by Mr Clarke, the head of the Loan Review Team, who made no attempt to check the accuracy of Ms Steels statements against the material on NRAMs file. It has since been accepted by Ms Steel that the statement in her email was entirely inaccurate she had never been instructed that the whole loan was to be repaid, and neither did she have a settlement figure for that repayment. At trial, Ms Steel could not explain this error, and the fact that the security had been discharged went unnoticed by NRAM until 2010 when Headway Caledonian went into liquidation. NRAM consequently issued a claim against Ms Steel (and Bell & Scott LLP) for damages suffered as a result of its reliance on her email of 22 March 2007. NRAM alleged that she had owed it a duty of care and had made the statements in the email negligently. The Lord Ordinary dismissed the claim, but the Inner House allowed NRAMs reclaiming motion, and substituted an award of damages in its favour of 369,811.18. The Supreme Court unanimously allows the appeal and restores the interlocutor of the Lord Ordinary. Lord Wilson gives the judgment, with which Lady Hale, Lord Reed, Lord Hodge and Lady Black agree. The starting point, when considering whether someone is liable for a careless misrepresentation which causes economic loss, is the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465. What lay at the heart of that decision was the need, in order for the representor to be liable, for the representee reasonably to have relied on the representation, and for the representor reasonably to have foreseen that he would do so [18 19]. However, it has since become clear that not all claims in tort for losses resulting from careless representations can easily be resolved by reference to this concept of assumption of responsibility. This was what prompted Lord Griffiths, in Smith v Eric Bush; Harris v Wyre Forest District Council [1990] 1 AC 831, to propose a threefold test that required (1) that it was foreseeable that, were the information given negligently, the claimants would be likely to suffer damage; (2) that there was a sufficiently proximate relationship between the parties; and (3) that it was just and reasonable to impose the liability [20 21]. This test was considered in Caparo Industries Plc v Dickman [1990] 2 AC 605, and for many years the court in Caparo was considered to have indorsed it. However, as has already been explained by the Supreme Court in other recent cases, the courts decision in Caparo was actually more nuanced than has often been allowed, and in fact the case is notable for its reassertion of the need for it to be reasonable for the representee to have relied on the representation, and for the representor to have reasonably foreseen that they would so rely [22 23]. Indeed, it is now clear that this concept of assumption of responsibility remains the foundation of liability for a careless misrepresentation, although the concept may sometimes require cautious incremental development in order to fit cases to which it does not readily apply [24]. Such development is unnecessary here, however, as the concept fits the case perfectly [25]. Consideration of six relevant authorities demonstrates that a solicitor will not assume responsibility towards the opposite party unless it was reasonable for the latter to have relied on what the solicitor said, and unless the solicitor should reasonably have foreseen that the opposite party would actually rely on the statement. These ingredients of reasonable reliance and foreseeability are particularly relevant to a claim against a solicitor by the opposing party, because it is presumed to be inappropriate for a solicitor to assume such a responsibility towards the other side [32]. In this case, the Lord Ordinary had found that Ms Steel generally expected NRAM to check her requests before complying with them, and therefore that she had not foreseen that they would rely on her assertions without checking their accuracy. In addition, any prudent bank taking basic precautions would have checked the accuracy of such statements, and it was therefore not reasonable for NRAM to have relied on the email [33]. The majority of the Inner House however had disagreed, and held that there were certain circumstances which led to the conclusion that Ms Steel had assumed responsibility for the representations in the email, such that the court did not even need to consider whether NRAM should have checked its file. These circumstances included, amongst other things, Ms Steels area of expertise, and the fact the NRAM had not instructed solicitors [34]. The approach of the majority was, however, incorrect. Nothing in the relevant case law supports a conclusion that it is not always necessary for a representee to show that it was reasonable of it to have relied on the relevant representation. This is an essential element of the concept of assumption of responsibility [35]. Moreover, the Lord Ordinary was correct to find that a commercial lender about to implement an agreement relating to its security does not act reasonably if it proceeds upon no more than a description of the agreements terms put forward by the borrower [38].
Mr Rahmatullah, a Pakistani citizen, was transferred to US forces after being detained by British forces in February 2004 in an area of Iraq under US control. Shortly after that, the UK authorities became aware that US forces intended to transfer him out of Iraq. That transfer took place without the UK having been informed of it. By June 2004 UK officials knew that Mr Rahmatullah was no longer in Iraq. He had been taken to Afghanistan and was being held in a detention facility in Bagram Air Field and there he has remained. On 15 June 2010 the recommendation of a detainee review board of the US army that Mr Rahmatullah be released was approved by a senior officer but this has not taken place. On 23 March 2003 a Memorandum of Understanding regarding the transfer of those captured in the fighting in Iraq was signed on behalf of the armed forces of the US, UK and Australia (the 2003 MOU). The 2003 MOU was to be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War (GC3) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC4). The 2003 MOU provided that any prisoners of war, civilian internees, and civilian detainees transferred by the UK would be returned by the US to the UK without delay upon request by the UK (clause 4). It also provided that the removal of transferred prisoners of war away from Iraq would only be made by agreement between the UK and the US (clause 5). The 2003 MOU was not legally binding. It was a diplomatic agreement between the countries concerned. The Divisional Court refused an application made on Mr Rahmatullahs behalf for a writ of habeas corpus requiring his release. On appeal, the Court of Appeal allowed Mr Rahmatullahs appeal and issued a writ of habeas corpus requiring the UK to seek his return or at least demonstrate why it could not. The Secretary of State requested the US authorities to return Mr Rahmatullah. A letter was received in response from the US deputy assistant Secretary of State for Defense. The US authorities did not agree to return Mr Rahmatullah to the UK. The letter stated that the US had already received a request from the Government of Pakistan for Mr Rahmatullah's repatriation, and that they considered it to be more appropriate to discuss the conditions of transfer directly with the Government of Pakistan. The Court of Appeal found that this letter was a sufficient response to the writ of habeas corpus and that was the end of the matter. The Secretary of State appealed the decision of the Court of Appeal to issue the writ of habeas corpus and Mr Rahmatullah cross appealed the decision that the response by the US was sufficient to demonstrate that the UK could not secure his release. The Supreme Court unanimously dismisses the appeal of the Secretary of State and by a majority of 5 2 (Lady Hale and Lord Carnwath dissenting) dismisses the cross appeal of Mr Rahmatullah. Lord Kerr gave the leading judgment with which Lord Dyson and Lord Wilson agreed. The UK does not need to have actual custody of Mr Rahmatullah to exercise control over his release as habeas corpus is a flexible remedy [42 43]. It is sufficient for the issuing of a writ of habeas corpus that there was material before the court suggesting that there was a reasonable prospect of the UK obtaining his release, OBrien [1923] AC 603 applied [46 48, 64]. The fact that the 2003 MoU was not legally binding does not reduce its significance. The UK needed the agreement to show that it had effectively ensured that the Geneva Conventions (GC) would be complied with. It provided the essential basis of control for the UK authorities over prisoners who had been handed over to the US [8 11]. The assertion by a witness for the Secretary of State that it would be futile to request Mr Rahmatullahs return was not supported by any evidence. Such a claim was surprising given the nature and terms of the 2003 MoU [15]. Although the legality of Mr Rahmatullahs detention did not need to be determined for the purposes of this appeal, there was clear prima facie evidence that he is detained unlawfully under the GC. The UK was under a duty to ensure that Mr Rahmatullah was not being held in breach of the GC or to request his return [22 40]. The issue of the writ was not an instruction to the Government to act in any particular way or to engage in diplomacy. It merely reflected the fact that there were sufficient grounds for believing that the UK Government could obtain control over the custody of Mr Rahmatullah. What was required of them was to show whether or not control existed in fact [60]. The decision to issue the writ did not entail any intrusion in the area of foreign policy [68]. On the cross appeal; the letter sent by the US authorities, while not explicitly referring to the 2003 MoU, did not suggest that it had not been considered. The US authorities had a copy of the Court of Appeals decision and were aware of the basis upon which it was made. It was clear from their response that the US authorities felt they were holding Mr Rahmatullah lawfully and were not willing to relinquish control of his detention to the UK [83 84]. Lord Phillips gives a short concurring judgment agreeing that there was sufficient evidence to suggest that the UK may be able to exert control over Mr Rahmatullah to issue the writ. He also considered that the issues of whether it mattered that Mr Rahmatullah had been handed over lawfully by the UK in the first place and whether Mr Rahmatullah could invoke in domestic proceedings the obligations of the UK under the Geneva Conventions had not been resolved in this case [100 107]. Lord Reed gives a concurring judgment. He agrees with Lord Kerr that the appeals should be dismissed but on the narrower ground that there was sufficient uncertainty as to whether the UK authorities had control of Mr Rahmatullahs detention to justify the issue of the writ [111 114]. Lady Hale and Lord Carnwath give a short joint judgment concurring with the majority in relation to the Secretary of States appeal but dissenting on the cross appeal. The basis for issuing the writ was the UKs apparent control provided by the 2003 MoU, supported by the UKs continuing responsibility as detaining authority under the Geneva Conventions (GC4). The UK Government did not make it clear to the US that it had an unqualified right under Clause 4 of the 2003 MoU to require Mr Rahmatullahs return. The US response similarly failed to deal with that central issue. In these circumstances, Lady Hale and Lord Carnwath found, the court should not rest on an inconclusive response, but should require resubmission of the request in firmer terms by the UK [125 131].
Article 50 of the Treaty on the European Union provides, in summary terms, that, if a member state decides to withdraw from the European Union (the EU) in accordance with its own constitutional requirements, it should serve a notice of that intention (a Notice), and that the treaties which govern the EU (the EU Treaties) shall cease to apply to that member state within two years thereafter. Following the June 2016 referendum, the Government proposes to use its prerogative powers to withdraw from the EU by serving a Notice withdrawing the UK from the EU Treaties. The principal issue in these appeals is whether such a Notice can, under the UKs constitutional arrangements, lawfully be given by Government ministers without prior authorisation by an Act of Parliament. Northern Ireland, and interventions by the Lord Advocate for the Scottish Government and the Counsel General for Wales for the Welsh Government, raise the additional issues of whether the terms on which powers have been statutorily devolved require consultation with or the agreement of the devolved legislatures before Notice is served, or otherwise operate to restrict the Governments power to do so (the devolution issues). The UKs constitutional requirements are a matter of domestic law which the parties all agree should be determined by UK judges. The issues in these proceedings have nothing to do with political issues such as the merits of the decision to withdraw, the timetable and terms of so doing, or the details of any future relationship between the UK and the EU. The claimants submit that, owing to the well established rule that prerogative powers may not extend to acts which result in a change to UK domestic law, and withdrawal from the EU Treaties would change domestic law, the Government cannot serve a Notice unless first authorised to do so by an Act of Parliament. Resolution of this dispute depends on the proper interpretation of the European Communities Act 1972 (the ECA), which gave domestic effect to the UKs obligations under the then existing EU Treaties, together with subsequent statutes, which gave effect to and related to later EU Treaties, and the European Union Referendum Act 2015. The devolution issues require the court to consider whether the terms of the Northern Ireland Act 1998 (NIA), and associated agreements, require primary legislation, and the consent of the Northern Ireland Assembly and/or the people of Northern Ireland, before a Notice can be served. Under each of the devolution settlements in Northern Ireland, Scotland and Wales the devolved legislatures have responsibilities to comply with EU law, and there is a convention (the Sewel Convention) that the UK Parliament will not normally exercise its right to legislate with regard to devolved matters without the agreement of the devolved legislature. The principal issue was raised in proceedings brought by Gina Miller and Deir Dos Santos against the Secretary of State for Exiting the European Union. The Divisional Court of England and Wales (Lord Thomas LCJ, Sir Terence Etherton MR and Sales LJ), declared that the Secretary of State did not have power to give Notice, without Parliaments prior authority. The Secretary of State has appealed to the Supreme Court against this decision. The Northern Ireland claims were heard together by Maguire J in the Northern Ireland High Court, who determined and dismissed the devolution issues, and, on an application by the Attorney General for Northern Ireland Maguire J referred four issues to the Supreme Court and the Northern Ireland Court of Appeal referred one further issue. The Supreme Court by a majority of 8 to 3 dismisses the Secretary of States appeal (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption and Lord Hodge in the majority with Lord Reed, Lord Carnwath and Lord Hughes dissenting). In a joint judgment of the majority, the Supreme Court holds that an Act of Parliament is required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union. Each of the dissenting justices gives a separate judgment. On the devolution issues, the court unanimously concludes that neither section 1 nor section 75 of the NIA is of assistance in this case, and that the Sewel Convention does not give rise to a legally enforceable obligation. The principal issue Majority judgment The Supreme Court considers that the terms of the ECA, which gave effect to the UKs membership of the EU, are inconsistent with the exercise by ministers of any power to withdraw from the EU Treaties without authorisation by a prior Act of Parliament Section 2 of the ECA authorises a dynamic process by which EU law becomes a source of UK law and takes precedence over all domestic sources of UK law, including statutes [60]. So long as the ECA remains in force its effect is to constitute EU law as an independent and overriding source of domestic law [65]. It operates as a partial transfer of law making powers, an assignment of legislative competences, by Parliament to EU institutions, unless and until Parliament decides otherwise [67 68]. It is common ground that UK domestic law will change as a result of the UK ceasing to be party to the EU treaties and the rights enjoyed by UK residents granted through EU law will be affected [69]. The Government argues that the 1972 Act does not exclude the power for ministers to withdraw from the EU Treaties, and that section 2 of the Act actually caters for the exercise of such a power as it gives effect to EU law only so long as the power of withdrawal is not exercised [75]. However, there is a vital difference between variations in UK law resulting from changes in EU law, and variations in UK law resulting from withdrawal from the EU Treaties. Withdrawal makes a fundamental change to the UKs constitutional arrangements, by cutting off the source of EU law, [78 80]. Such a fundamental change will be the inevitable effect of a Notice being served [81]. The UK constitution requires such changes to be effected by Parliamentary legislation [82]. The fact that withdrawal from the EU would remove some existing domestic rights of UK residents also renders it impermissible for the Government to withdraw from the EU Treaties without prior Parliamentary authority [83]. It would have been open to Parliament when enacting the ECA to authorise ministers to withdraw from the EU Treaties, but clear words would have been required; not only are there no such clear words, but the provisions of the ECA indicate that ministers do not have such power [87, 88]. Withdrawal is not authorised by section 2, which envisages ministers taking part in the EU law making processes: withdrawing from the EU is doing the opposite [95]. The fact that ministers are accountable to Parliament for their actions is no answer constitutionally, if the power to act does not exist in the first place and where (as the court has been asked to assume) the exercise of the power would be irrevocable and pre empt any Parliamentary action [92]. Subsequent EU related legislation and events after 1972, including the introduction of Parliamentary controls in relation to decisions made by UK ministers at EU level relating to the competences of the EU or its decision making processes, but not to the giving of notice under Article 50(2), are entirely consistent with an assumption by Parliament that no power existed to withdraw from the treaties without a statute authorising that course [111]. The 2016 referendum is of great political significance. However, its legal significance is determined by what Parliament included in the statute authorising it, and that statute simply provided for the referendum to be held without specifying the consequences. The change in the law required to implement the referendums outcome must be made in the only way permitted by the UK constitution, namely by legislation. The Government accepts that the resolution of the House of Commons on 7 December 2016 calling on ministers to give notice under Article 50 by 31 March 2017 is a political act which does not affect the issues arising in the appeals [116 124]. Dissenting judgments Lord Reed, with whom Lord Carnwath and Lord Hughes agree, considers that the effect which Parliament has given to EU law under the ECA is inherently conditional on the application of the EU treaties to the UK and therefore on the UKs membership of the EU. The ECA does not impose any requirement or manifest any intention in respect of the UKs membership of the EU. It does not therefore affect the Crowns exercise of prerogative powers in respect of UK membership [177]. Lord Carnwath observes that service of notice under Article 50(2) will not itself change any laws or affect any rights but is merely the start of an essentially political process of negotiating and decision making within the framework of that article. The Government will be accountable to Parliament for those negotiations and the process cannot be completed without the enactment by Parliament of primary legislation in some form [259]. The devolution issues The devolution Acts were passed by Parliament on the assumption that the UK would be a member of the EU, but they do not require the UK to remain a member. Relations with the EU and other foreign affairs matters are reserved to UK Government and parliament, not to the devolved institutions. Withdrawal from the EU will alter the competence of the devolved institutions, and remove the responsibilities to comply with EU law. [129 130]. In view of the decision of the majority of the Justices that primary legislation is required for the UK to withdraw from the EU, it is not necessary for the court to decide if the NIA imposes a discrete requirement for such legislation [132]. The decision to withdraw from the EU is not a function carried out by the Secretary of State for Northern Ireland in relation to Northern Ireland within the meaning of section 75 NIA. Moreover, section 1 NIA, which gave the people of Northern Ireland the right to determine whether to remain part of the UK or to become part of a united Ireland, does not regulate any other change in the constitutional status of Northern Ireland [133 135]. As to the application of the Sewel Convention to the decision to withdraw from the EU given the effect on the devolved competences, the Convention operates as a political constraint on the activity of the UK Parliament. It therefore plays an important role in the operation of the UK constitution. But the policing of its scope and operation is not within the constitutional remit of the courts. The devolved legislatures do not have a veto on the UKs decision to withdraw from the EU [136 151].
The Respondent, Mr Mott, has a leasehold interest in a putcher rank fishery on the banks of the Severn Estuary. A putcher rank is an old fishing technique, involving the use of conical baskets to trap adult salmon as they attempt to return from the open sea to their river of origin to spawn. According to Mr Motts evidence, the operation of the putcher rank has been his full time occupation since 1979. The Appellant, the Environment Agency (the Agency), has a long standing policy of reducing exploitation of salmon stocks in the area. For some years, the status of salmon stock in the Wye and Usk rivers, to which mixed salmon stock in the Severn Estuary are destined to return, has been categorised as unfavourable or at risk. These rivers are designated as Special Areas of Conservation (SAC) under European law and are part of the wider Severn Estuary European Marine Site. To operate the putcher rank during salmon season, Mr Mott has needed an annual licence from the Agency under section 25 of the Salmon Freshwater Fisheries Act 1975 (the 1975 Act). With effect from 1 January 2011, the 1975 Act was amended to enable the Agency to grant a licence subject to conditions which limit the number of fish taken as the Agency considered necessary for the protection of any fishery. On 1 June 2012, after negotiations between the parties for termination of the lease and permanent cessation of the putcher rank fishery failed, the Agency served notice on Mr Mott under the amended 1975 Act limiting his catch to 30 fish for the 2012 season. Further limits of 23 salmon and 24 salmon were imposed in 2013 and 2014, respectively. Whilst Mr Mott was paid compensation on various occasions between 2004 and 2011 not to operate the fishery during particular seasons, no compensation was paid to him in relation to the restrictions imposed between 2012 and 2014. Mr Mott began judicial review proceedings against the Agencys decision to impose conditions. He claimed that the catch limit conditions made his fishery wholly uneconomic to operate. He also claimed that the decisions were irrational and in breach of his property rights under Article 1 of Protocol 1 (A1P1) of the European Convention on Human Rights (ECHR). The judge held that the decisions were irrational and that, under A1P1, the Agency could not properly have imposed the conditions, if otherwise lawful, without payment of compensation. The Court of Appeal allowed the Agencys appeal on the issue of irrationality, but dismissed the appeal under A1P1. Only the A1P1 issue arises on appeal to the Supreme Court. The Supreme Court unanimously dismisses the Agencys appeal. Lord Carnwath gives the lead judgment with which the other justices agree. The application of A1P1, in circumstances comparable in some respects to the present, was considered by the Court of Appeal in R (Trailer and Marina (Leven) Ltd) v Secretary of State for the Environment, Food and Rural Affairs [2005] 1 WLR 1267 [19]. In Trailer and Marina, Neuberger LJ referred to the decision of the Grand Chamber of the European Court of Human Rights (ECtHR) in Sporrong & Lonnroth v Sweden (1982) 5 EHRR 85 for the proposition that, irrespective of whether an interference with property rights can be classified as a deprivation or a control of use under A1P1, it may be necessary to consider whether a fair balance was struck between the demands of the general interests of the community and the requirements of the protection of the individuals fundamental rights [20]. An authoritative summary of the principles is found in the Grand Chamber ECtHR decision of Hutten Czapska v Poland (2007) 45 EHRR 4 which held that in each case involving an alleged violation of A1P1 the court must ascertain whether by reason of the states interference the person concerned had to bear a disproportionate and excessive burden [22]. The issues arising in this appeal were: (i) whether the conditions imposed by the Agency amounted to control or de facto expropriation under A1P1, (ii) if the former, did the fair balance require compensation to be paid, and (iii) if the latter, were there any exceptional circumstances justifying the absence of compensation [27]. The Agency submitted that the restrictions in question were clearly a control of use of Mr Motts property. As to whether a fair balance had been struck, the Agency referred to its important responsibilities with respect to protection of the environment, a factor emphasised in the ECtHR case law [28 30]. Mr Mott submitted that the effect of the conditions was to nullify the practical use of his lease, and thus amounted to expropriation. Even if the conditions were regarded as a control of use, the courts below were entitled to find that they required Mr Mott to shoulder an excessive and disproportionate burden, such that breach of A1P1 could only be prevented by payment of compensation [31]. The Court found that that the distinction between expropriation and control under ECtHR case law is neither clear cut nor crucial to the present analysis. It is necessary to consider whether the effect on the particular claimant was excessive and disproportionate [32]. The Agency was correct to emphasise the special importance of environmental protection but this does not detract from the need to draw a fair balance, nor from the potential relevance of compensation [33]. Against the background of the ECtHR case law, the Court was unable to fault the judges analysis of the applicable legal principles in this case [34 36]. The fact that the conditions imposed by the Agency were closer to deprivation than mere control was clearly relevant to the fair balance. The Agency gave no consideration to the particular impact on Mr Motts livelihood, which was severe. The judge suggested that the lease retained some small value if sold for leisure rather than commercial use but this was doubtful and did not consider restrictions on Mr Motts ability to transfer his interest in the lease [36]. In upholding the decision of the courts below, the Court emphasised that this was an exceptional case on the facts, because of the severity and the disproportion (as compared to others) of the impact on Mr Mott. The national authorities have a wide margin of discretion in the imposition of necessary environmental controls, and A1P1 gives no general expectation of compensation for adverse effects. Furthermore, where (unlike this case) the authorities have given proper consideration to the issues of fair balance, the courts should give weight to their assessment [37].
This appeal concerns the final stage of the administration of Lehman Brothers International (Europe) (LBIE). It became commercially insolvent due to the worldwide crash of the Lehman group. LBIE went into administration on 15 September 2008. The administration generated an unprecedented surplus in the region of 7 billion. It is estimated that about 5 billion is payable as statutory interest. All unsecured creditors have already been repaid the principal sums owed, in full, by 30 April 2014. The question on appeal is whether interest payable under rule 14.23(7) of the Insolvency Rules 2016 (the 2016 Rules) is yearly interest within the meaning of section 874 of the Income Tax Act 2007 (the 2007 Act). If so, the administrators must deduct income tax before paying interest to creditors. In the High Court, Mr Justice Hildyard considered that statutory interest under rule 14.23(7) is not yearly interest for the purposes of the 2007 Act. This was because of the absence of any accrual of interest over time, before the surplus was identified and quantified. The Court of Appeal disagreed, allowing the appeal by the Commissioners (HMRC). It considered that interest under rule 14.23(7) is indeed yearly interest. It did not accept a requirement that yearly interest should accrue over time and considered that, because the statutory interest was compensation for the creditors, it had the required long term quality. The administrators now appeal to the Supreme Court. The Supreme Court dismisses the appeal. Lord Briggs gives the lead judgment, with which all members of the Court agree. Income tax must be deducted before payment of statutory interest to the creditors. Rule 14.23(7) of the 2016 Rules, which replaced substantially identical provisions in rule 2.88(7) of the Insolvency Rules 1986, requires a surplus after payment of proved debts in an administration to be used for payment of statutory interest [1]. Interest is paid as statutory compensation for the loss which the creditors have suffered by being kept out of their money during the administration [6]. Section 874 of the 2007 Act, which is a much more historic provision within the income tax legislation, requires a debtor to deduct income tax from payments of yearly interest arising in the UK [1, 11 15]. Historically, the income tax legislation adopted a dichotomy between the treatment of interest of any kind which is not paid out of profits or gains, on the one hand, and yearly interest, on the other hand [15]. The mandatory deduction at source of yearly interest remains in place for interest paid by companies as well as certain other categories of taxpayers, and interest paid by any person to someone whose usual place of abode is outside the UK [15]. There are two lines of English and Scottish case law that are relevant to this appeal. The first deals with whether interest which accrues over time is properly categorised as yearly interest [20]. The second is mainly concerned with interest payable as a result of a judicial decision, either when granting an equitable remedy or when exercising a discretion to award interest under statute [20]. However, statutory interest under rule 14.23(7) of the 2016 Rules does not strictly fall within either category. The answer to the question on appeal must thus be found by analogy [20]. In the first line of cases, a number of general tests for whether interest is yearly interest or not were laid down [21 29]. These were summarised by the Court of Session in Inland Revenue Comrs v Hay (1924) VIII TC 636 (the Hay tests). In summary: (1) interest payable on so called short loans is not yearly interest; (2) for interest to be yearly interest, there must be some element of permanence in the contractual arrangement under which it is payable; (3) the arrangement under which interest is payable must be in the nature of an investment; (4) the loan must not be one repayable on demand; and (5) there must be some tract of future time during which interest will continue to be payable [30]. The Hay tests remain the best convenient summary about the meaning of yearly interest in the context of interest which accrues over time [33]. In the second line of cases, the same question has been addressed in the context of interest usually payable in a single lump sum [34]. The most important case is the House of Lords decision in Riches v Westminster Bank Ltd [1947] AC 390 [36 42]. In most of these cases, interest became payable only after the event (and usually in one lump sum) upon the order of the court and it served as compensation for being deprived of money or property during a past period [34, 47 48]. Relevant examples include cases where a trustee has misused trust property and cases where the court has ordered interest to be paid on damages, such as for personal injury, until the date of judgment [34 48]. Where that period exceeds a year, interest was held to be yearly interest for income tax purposes [52]. Interest payable on a surplus in an administration is of a special type [49]. Such interest, once paid, compensates proving creditors for being kept out of their proved debts in respect of the period from the beginning of the administration until they are actually paid [49]. Consequently, the relevant analogy is to the second line of cases [47 48, 52]. This is because in both the present appeal and those cases there is no liability to pay interest during the period in respect of which it is calculated, and the interest is not itself payable over a period of time [47 48]. Moreover, in both cases, it cannot be known during the period of calculation whether interest will in fact be payable at all [47 48]. In both, the interest amounts to compensation for the recipients having been out of their money [48, 52]. There is no relevant uncertainty, because, like in the trust and personal injury cases, the taxpayer will know to which period the interest relates by the time it becomes due and thus make suitable tax deductions [54]. In the present case, the period is fixed by the date of commencement of the administration and the date (or dates) when the proving creditors are paid their debts [54]. Arguments based on the source of the relevant income conflict with the second line of cases [55 56]. Further, they are wrong in principle as: (1) the income tax deduction obligation under section 874 of the 2007 Act does not depend on whether the interest is taxable in the hands of the recipient; (2) it is artificial to regard the source of statutory interest as either the realisation of the surplus or the administrators decision to pay interest; and (3), if anything, the relevant status of the recipient is as a proving creditor between the start of the administration and payment of the principal debt [57 59]. On the present facts, the result is that the statutory interest payable is yearly interest [61]. Therefore, income tax is to be deducted at source pursuant to section 874 of the 2007 Act [61].
The issues in this appeal are (a) whether, in the absence of any statutory power, a District Judge in extradition proceedings has the power to admit the evidence in a closed material hearing (without disclosing it to the State requesting extradition); and alternatively (b) whether, in such proceedings, a witness anonymity order can be made under the Coroners and Justice Act 2009, s.87 [2]. The facts were that the Government of Rwanda had, under Memoranda of Understanding with the United Kingdom dated 8 March 2013, requested the extradition of the Appellants and the Intervener to stand trial in Rwanda for war crimes [1]. In the extradition proceedings before Westminster Magistrates' Court, the Appellants sought to establish that their extradition risked exposing them to a flagrantly unfair trial (contrary to Article 6 of the ECHR) and even torture or mistreatment (contrary to Article 3 of the ECHR). Evidence on which they sought to rely came from witnesses who were unwilling to reveal their identity to the Rwandan Government and the Appellants argued that this evidence should be considered by the judge without being disclosed to the Rwandan Government or the CPS (who were acted on its behalf). The District Judge found that she could not consider evidence in a closed hearing or make witness anonymity orders [4] [8]. The Administrative Court dismissed the challenge to the District Judges decision but commented that the Coroners and Justice Act 2009, s.87 enabled witness anonymity orders to be made in extradition proceedings [9]. On appeal to the Supreme Court, it was common ground between the parties that the Coroners and Justice Act 2009, s.87 had no relevant application to extradition proceedings [47]. The Supreme Court dismisses the appeal by a 4 1 majority (Lord Toulson dissenting), finding that: (1) The judge had no power to order a closed material hearing or otherwise limit disclosure and was right not to do so [27] and [34]. (2) The judge had no power to order disclosure to the CPS on the condition that further disclosure to the Rwandan Government was prohibited and was right not to do so [35] and [37]. (3) The judge had no power to make a witness anonymity order under s.87 of the Coroners and Justice Act 2009 [47]. Lord Mance (with whom Lord Neuberger and Lord Reed agrees) gives the lead judgment and agrees with the judgment of Lord Hughes on the admissibility of anonymous evidence in extradition proceedings. Lord Hughes (with whom Lord Neuberger and Lord Reed also agree) agrees with Lord Mance but adds further comments. Lord Toulson dissents, but agrees with Lord Hughes on the admissibility of anonymous evidence in extradition proceedings. Lord Mance reasons that: (1) Section 77(1) of the Extradition Act 2003 provides that in extradition hearings the judge has the same powers (as nearly as may be) as a magistrates court would have if the proceedings were the summary trial of an information against the person whose extradition is requested [13]. That includes matters of evidence and procedure [19]. Although the parties were agreed that the normal rules of evidence should be relaxed in extradition hearings raising issues of human rights [21], the power of the court to order a closed material hearing remained limited to the exceptional circumstances recognised in Al Rawi v Security Service [2011] UKSC 34 (to protect the best interests of a child or where disclosure would undermine the whole object of the proceedings) [27] and [34]. It would not be in the interests of justice to allow further departure from the normal principle of open justice, as the relevance, truthfulness and persuasiveness of the evidence could not be tested in a closed material hearing [29]. (2) As the proceedings were, in substance, between the Appellants and the Rwandan Government, and the CPS represented the latter, there was no power to order disclosure to the CPS but prohibit disclosure to the Rwandan Government [37]. (3) The judge would not, as was common ground between the parties, have had the power to make a witness anonymity order under s.87 of the Coroners and Justice Act 2009 [47] [48]. Lord Hughes agrees with the conclusion of Lord Mance that an extradition court lacks the power to embark upon closed material hearings [53], but makes additional comments on (a) the relationship between extradition proceedings and any subsequent immigration or human rights claims [54] [62]; and (b) the power of the court to admit anonymous evidence in extradition proceedings conducted under the Extradition Act 2003, provided that the proceedings are nevertheless fair [63] [74]: Lord Toulson dissents on the basis that the District Judge had accepted that the proposed evidence was relevant [82] and that it would be wrong to assume (in effect) that the evidence was untrue merely because its veracity could not be tested in a closed material hearing [84]. He concluded that there should be an exception to the principle of open justice where, as here, not ordering a closed material hearing or not prohibiting disclosure to the State requesting extradition would facilitate a foreseeable and potentially serious breach of human rights [86] [93].
The Respondent operates a fish farm in Malta. On 17 June 2010, it was transporting tuna in fish cages when its vessel was attacked by a ship, named the Steve Irwin. One of the fish cages was rammed and divers from the Steve Irwin forced it open, releasing the fish. The Respondents crew were fought off with liquid filled bottles and rubber bullets. This incident was carried out by the Sea Shepherd Conversation Society (SSCS) as part of a campaign, called Operation Blue Rage, to intercept and oppose the overfishing of Bluefin tuna in the Mediterranean. SSCS was formed in 1997 in the state of Washington, USA, where it is still based, for the purpose of conserving and protecting ecosystems and species. Since then, a network of SSCS subsidiaries, such as the Appellant, have formed in various different countries. The Appellant, one such subsidiary, is a company limited by guarantee and a registered charity based in the UK. Its general objectives are to conserve and protect the worlds marine wilderness ecosystems and marine wildlife species. In 2010, its primary objective was to provide funds and support the aims and objectives of its parent organisation, SSCS. The Appellant had purportedly contributed in two main ways to the incident on 17 June 2010. It had: (i) participated in the fundraising for Operation Blue Rage; and, (ii) recruited two volunteers. In relation to the fundraising, SSCS involved the Appellant to make use of its bulk mailing services within the UK and so that UK donors could contribute through sterling cheques or transfers. As such, SSCS sent the Appellant a mailshot appealing for funds for Operation Blue Rage. This mailshot was designed, organised and paid for by SSCS but was sent out in the name of, and with (at least) the knowledge of, the Appellant, but not by or on the instructions of the Appellant. The subsequent donations, amounting to 1,730, were paid to the Appellant who then transferred this to SSCS. In relation to the recruitment of volunteers, the Appellant passed on the names of those who had contacted it about volunteering. One of the volunteers sourced a pump for the Steve Irwin. He and the other volunteer then transported the pump to the Steve Irwin and did a days work on board. The Respondent brought a claim in the English courts in tort against the Appellant for the loss and damage it had suffered. A preliminary issue was whether the Appellant could be held liable, directly or vicariously, for this damage. At trial, Hamblen J dismissed the claim finding that the Appellant could not be held liable. The Court of Appeal disagreed and allowed the Respondents appeal. The Supreme Court allows the appeal by a majority of three to two. Although all five Justices agree on the test for liability, they disagree as to the application of the test to the facts of this case. Lord Toulson delivers the lead judgment. Lord Neuberger and Lord Kerr give concurring judgments. Lord Sumption and Lord Mance give dissenting judgments. The test for liability Lord Toulson reasons that a defendant will be jointly liable for the tortious acts of the principal if the defendant: (i) acts in a way which furthers the commission of the tort by the principal; and, (ii) does so in pursuance of a common design to do or secure the doing of the acts which constitute the tort [21]. Lord Sumption agrees that a defendant will be jointly liable if: (i) he has assisted the commission of the tort by another person; (ii) it is pursuant to a common design; and, (iii) an act is done which is, or turns out to be, tortious [37]. Lord Neuberger agrees with these statements of the law [55], [61]. It is unwise to attempt to define the necessary amount of connection between the defendant and the tort; this is ultimately fact sensitive [56]. The defendants assistance must be substantial rather than minimal to be jointly liable. Once assistance is shown to be more than trivial, a defendants relatively unimportant contribution should be reflected through the courts power to apportion liability and then order contribution between the defendant and the principal [57]. Lord Kerr [90] and Lord Mance [91] agree with these formulations of the test. Application to the facts of this case Lord Toulson finds that Hamblen J correctly asked whether the Appellants contribution had any significance to the commission of the tort [25]. Hamblen J reached an entirely proper conclusion that the role played by the Appellant, based mainly on its fundraising relating to a small sum solicited by SSCS, had been of minimal importance [26]. Lord Neuberger considers that although the Appellant and SSCS shared a common design [68], the judge at first instance had been entitled to find that the Appellants contribution was minimal and played no effective part in the commission of the tort [70]. The Appellants recruitment of volunteers was trivial [72] and, in relation to the fundraising, all the Appellant did was not to object to the use of its name and bank account in the mailshot before paying the small sum over to SSCS [79]. According to Lord Kerr, it was plainly open to Hamblen J to find that the Appellant had no more than a minimal or peripheral input so that it played no effective part in the commission of the alleged tort. There was, therefore, no reason to interfere with this finding [87], [89]. Lord Sumption (dissenting) finds that the Appellant had a common intention with SSCS that SSCS should cut the nets of fishermen and forcibly release their catch if necessary [46 48]. The Appellants participation in relation to fundraising, though small, cannot be described as so trivial as to be no fact at all in the eyes of the law [50 51]. Lord Mance (dissenting) agrees with Lord Sumption that the fundraising assistance given by the Appellant to SSCS cannot be described as minimal [97]. The mailshot was sent out in the Appellants name and on its behalf, having explicitly or implicitly authorised this, and the sum raised was not insignificant [98 99].
The Investigatory Powers Tribunal (IPT) is a specialist tribunal established under the Regulation of Investigatory Powers Act 2000 (RIPA). It has jurisdiction to examine, among other things, the conduct of the Security Service, the Secret Intelligence Service and the Government Communications Headquarters. Section 67(8) of RIPA provides: Except to such extent as the Secretary of State may by order otherwise provide, determinations, awards and other decisions of the Tribunal (including decisions as to whether they have jurisdiction) shall not be subject to appeal or be liable to be questioned in any court. On a preliminary issue in a claim brought by the appellant, the IPT ruled that section 5(2) of the Intelligence Services Act 1994 (the 1994 Act), which empowers the Secretary of State to issue a warrant authorising the taking of such action as is specified in the warrant in respect of any property so specified, extends to warrants authorising a class of activity in respect of a class of property so called thematic warrants. The appellants applied for judicial review, but the High Court ruled that section 67(8) of RIPA prohibits judicial review of that decision. The Court of Appeal dismissed the appellants appeal against that ruling. The two issues before the Supreme Court are: i) Whether section 67(8) of RIPA ousts the supervisory jurisdiction of the High Court to quash a judgment of the IPT for error of law. ii) Whether, and, if so, in accordance with what principles, Parliament may by statute oust the supervisory jurisdiction of the High Court to quash the decision of an inferior court or tribunal of limited statutory jurisdiction. The Supreme Court allows the appeal by a majority. Lord Carnwath gives the lead judgment, with which Lady Hale and Lord Kerr agree. Lord Lloyd Jones gives a separate concurring judgment. The majority allow the appeal on the first issue, as they conclude that section 67(8) does not oust the supervisory jurisdiction of the High Court for errors of law. Lord Sumption (with whom Lord Reed agrees) and Lord Wilson give dissenting judgments. (i) Whether section 67(8) of RIPA ousts the supervisory jurisdiction of the High Court Lord Carnwath holds that the interpretation of section 67(8) must be informed by the close parallel with the provision under review by the House of Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 14. By the time the predecessor to RIPA was drafted in 1985, following Lord Diplocks explanation in OReilly v Mackman [1983] 2 AC 237, the drafter can have had no doubt that a determination vitiated by any error of law, jurisdictional or not, was to be treated as no determination at all. The reference to a determination was to be read as a reference only to a legally valid determination [105]. The exercise is not one of ordinary statutory interpretation, as there is a common law presumption against ousting the jurisdiction of the High Court. The plain words of the subsection must yield to the principle that such a clause will not protect a decision that is legally invalid. Therefore the exclusion in section 67(8) of RIPA applies only to determinations, awards or other decisions that are not erroneous in law [107]. The relevant decision in this case raised a short point of law, which on no ordinary view could be regarded as a decision as to whether [the IPT] had jurisdiction [108]. If read in the context of Anisminic, those words in parenthesis in section 67(8) apply only to a legally valid decision relating to jurisdiction [109]. This does not mean the words in parenthesis are otiose, as some decisions as to jurisdiction will involve issues of fact to which the exclusion could be said to apply without engaging the presumption against ouster [110]. Moreover, judicial review can only be excluded by the most clear and explicit words. A more explicit formula might have excluded challenges to any determination or purported determination [111]. The features of the IPT regime, on which the Court of Appeal relied, do not change the interpretation of section 67(8). As this case shows, the IPT can organise its procedures to ensure that a material point of law can be considered without threatening any security interests. Further, the potential for overlap with legal issues considered by ordinary courts makes it important that the IPT is not able to develop its own local law without scope for further review [112]. Lord Lloyd Jones agrees with Lord Carnwath. He adds that it is a necessary corollary of the sovereignty of Parliament that there should exist an authoritative and independent body which can interpret and mediate legislation made by Parliament. Central to the appeal is whether it was the intention of Parliament to modify the procedures by which statute law is mediated [160]. He finds it a striking feature of section 67(8) and its predecessor that it failed to exclude purported determinations, awards and other decisions, in light of the judgment of Lord Diplock in OReilly v Mackman [164]. The words in parenthesis do not extend the exclusion of the jurisdiction of the High Court to what purport to be decisions but in law are not to be so regarded [165]. Lord Sumption, dissenting, concludes that the effect of section 67(8) is to exclude the jurisdiction of the High Court to entertain a challenge to the IPTs decisions on the merits. The rule of law is sufficiently vindicated by the judicial character of the IPT and it does not require a right of appeal from the decisions of a judicial body of this kind [172]. If the IPTs construction of section 5(2) of the 1994 Act was an error, then it was an error within the permitted field of interpretive power which Parliament has conferred on the IPT. Therefore, the effect of section 67(8) is that the High Court had no jurisdiction to entertain a challenge to the IPTs decision in the present case [206]. Lord Wilson, dissenting, concludes that the meaning of the words in parenthesis in section 67(8) encompass within the exclusion of judicial supervision all the decisions of the IPT in relation to its jurisdiction. He ascribes to that word the strained extension of its effect adopted in Anisminic, such that the exclusion in section 67(8) covers both ordinary errors of law as well as errors of jurisdiction in the proper sense of the word. The presumption that Parliament did not intend such an exclusion has to yield to the only reasonable meaning of its words [224]. (ii) Whether Parliament may by statute oust the supervisory jurisdiction of the High Court Lord Carnwath states that his conclusion on the first issue makes it strictly unnecessary to consider the second issue [113]. He nonetheless comments that it is ultimately for the courts, not the legislature, to determine the limits set by the rule of law to the power to exclude review [131]. This proposition is a natural application of the constitutional principle of the rule of law and an essential counterpart to the power of Parliament to make law. The question in any case is the level of scrutiny required by the rule of law [132]. Some forms of ouster clause may readily satisfy such a test, as in the six week time limit for planning cases [133]. Lord Carnwath sees a strong case for holding that binding effect cannot be given to a clause which purports wholly to exclude the supervisory jurisdiction of the High Court to review a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction, or error of law. It should remain a matter for the court to determine the extent to which such a clause should be upheld, having regard to its purpose and statutory context, and the nature and importance of the legal issue in question [144]. Lord Sumption does not think it would be appropriate or wise to answer the second issue in wholly general terms. It should be addressed in the context of the statute in this case, and of the assumption that section 67(8) excludes judicial review of the IPTs decisions on merits [207]. He accepts that Parliaments intention that there should be legal limits to a tribunals jurisdiction is not consistent with the courts lacking the capacity to enforce those limits [210]. The question here, however, is how to reconcile the limited character of the IPTs jurisdiction with the language of section 67(8). The reconciliation is that section 67(8) does no more than exclude review by the High Court of the merits of decisions made by a tribunal performing the same functions as the High Court. It is in substance an exclusion of appeals on the merits and other proceedings tantamount to an appeal on the merits [211]. Lord Wilson recasts the second issue to address only Parliaments exclusion of judicial review of an ordinary error of law [237]. He concludes that Parliament has conferred both independence and authority upon the IPT and, in those circumstances, Parliament does have the power to exclude judicial review of any ordinary errors of law made by it [252 253].
Patrick Finucane was a solicitor in Belfast. On 12 February 1989, gunmen burst into his home and brutally murdered him in the presence of his wife and three children. Those responsible were so called loyalists. It has emerged that there was collusion between the murderers and members of the security forces. Despite various investigations into Mr Finucanes death, none of these has uncovered either the identity of the members of the security forces who engaged in the collusion or the precise nature of the assistance which they gave to the murderers. Following an inquiry into allegations of collusion between the security forces and loyalist paramilitaries, Brian Nelson was identified. Nelson was an informer for the security services and in particular for an organisation within the British army known as the Force Research Unit (FRU). His role had included the gathering of information about potential targets for assassination. In 2001, political talks were held between the UK and Irish governments. It was decided that a judge would be appointed to investigate allegations of collusion in a number of cases, including that of Mr Finucane. It was said that if the judge recommended a public inquiry in any case, the relevant government would implement that recommendation. Judge Cory was appointed in June 2002. Meanwhile, on 1 July 2003, following a case brought by Mrs Finucane, the European Court of Human Rights (ECtHR) decided that there had not been an inquiry into the death of Mr Finucane which complied with Article 2 of the European Convention on Human Rights (ECHR). Judge Cory published his report on 1 April 2004. He concluded that a public inquiry into Mr Finucanes murder was required. In September 2004, the Secretary of State for Northern Ireland (SSNI) wrote to Mrs Finucane and made a statement in the House of Commons to the effect that the inquiry would be held on the basis of new legislation which was to be introduced shortly. This new legislation was the Inquiries Act 2005. Mrs Finucane objected strenuously to the proposal that the inquiry would take place under the new legislation and various discussions as to the terms of the inquiry took place over the years that followed. In May 2010, there was a general election and a new government was formed. Following a consultation on the form which an inquiry into the murder of Mr Finucane should take, the decision was made on 11 July 2011 that a public inquiry would not be conducted. Instead, Sir Desmond de Silva was appointed to conduct an independent review into any state involvement in Mr Finucanes murder. Sir Desmond was given unrestricted access to documents and was free to meet anyone whom he felt could help with his inquiry. He was not given the power to hold oral hearings, however. Although, initially Sir Desmond wished to meet with one of Nelsons former handlers, this meeting did not take place and Sir Desmond explained in his report that the reason that the meeting did not take place was that he had been informed that the handler felt unable to attend for medical reasons. It has become apparent that this information was given to Sir Desmond by the Ministry of Defence. No medical evidence to support the claim of ill health was provided. In the event, Sir Desmond subsequently decided that he did not need to meet the handler, but did not explain why he had changed his view. Sir Desmond stated as part of the conclusion to his report: I am left in significant doubt as to whether Patrick Finucane would have been murdered by the UDA in February 1989 had it not been for the different strands of involvement by elements of the state. Mrs Finucanes case is brought in judicial review. She claims that she had a legitimate expectation that a public inquiry would be held because of the unequivocal assurance given to her in September 2004. She says the government have failed to show valid grounds for failing to fulfil this promise and that the evidence suggests that the decision not to hold the inquiry was a sham with a predetermined outcome. Mrs Finucane supports her case by arguing that the failure to establish a public inquiry constitutes a violation of her rights under Article 2 of the ECHR and section 6 of the Human Rights Act 1998 (HRA) which requires any public authority (including a Court) not to act in a way which is in contravention of an ECHR right. Mr Justice Stephens dismissed Mrs Finucanes application for judicial review but made a limited declaration that an Article 2 compliant inquiry into Mr Finucanes murder had not yet taken place. The Court of Appeal upheld this decision, save that it set aside the declaration. The Supreme Court holds that Mrs Finucane did have a legitimate expectation that there would be a public inquiry into Mr Finucanes death, but that Mrs Finucane has not shown that the governments decision not to fulfil this promise was made in bad faith or that it was not based on genuine policy grounds. The Supreme Court makes a declaration that there has not been an Article 2 compliant inquiry into the death of Mr Finucane. Lord Kerr gives a judgment with which all members of the Court agree. Lord Carnwath delivers a concurring judgment. Legitimate Expectation: Where a clear and unambiguous undertaking is made, the authority giving the undertaking will not be allowed to depart from it unless it is shown that it is fair to do so [62]. The undertakings given by the various ministers amount, individually and cumulatively, to an unequivocal undertaking to hold a public inquiry into Mr Finucanes death [68]. This promise was not of a substantive benefit to a limited class of individuals. Instead, it was a policy statement about procedure. That policy procedure applied not only to Mrs Finucane but also to the world at large [63]. If political issues overtake a promise given by the government and a decision is taken in good faith and on genuine policy grounds not to adhere to the original promise, it will be difficult for a person who holds a legitimate expectation to enforce compliance with it [76]. Mrs Finucanes argument that the process was a sham and the outcome was fixed is a serious charge which would require clear evidence before this could be accepted [77 78]. There is no sustainable evidence to this effect, so this part of Mrs Finucanes appeal fails [81]. Whilst this issue did not arise on the facts of the present case, Lord Carnwath delivers a concurring judgment addressing the issue of detriment in substantive legitimate expectation cases [156 160]. Article 2 of the ECHR: Article 2 gives rise not merely to a duty not to kill people but, where there is an issue as to whether the state had broken this obligation, an obligation on the part of the state to carry out an effective official investigation into the deaths [83]. Mr Finucane died prior to 2 October 2000, which is the date when the HRA (which gives effect to the ECHR in domestic law) came into force [84]. The procedural obligation to investigate can be considered a detachable obligation, however. In that role, it is capable of binding the state even where the death took place before the critical date when these laws came into force [96]. The SSNI argued that there must be a genuine connection between the death and the critical date, and that this had not been established in this case [106 107]. It was suggested that the period between the death and the critical date should not exceed ten years. It was held that there was not an absolute rule that the period between the death and the critical date should be ten years or less. The period between the dates is important but the significance of this diminishes where, as in this case, most of the significant inquiries into the death took place after the HRA came into force [108]. It has been established by the ECtHR that any information or material which has the potential to undermine the conclusions of an earlier investigation or to allow an earlier inconclusive investigation to be pursued further would prompt a revival of the procedural obligation [117]. The need for an effective investigation goes well beyond facilitating a prosecution [127]. In order to be compliant, an investigation must be capable of leading to the identification and punishment of those responsible [128]. This must involve having the means to identify those implicated in the death [131]. Various features show that Sir Desmonds review fell short of being an effective Article 2 compliant inquiry: Sir Desmond did not have the power to compel the attendance of witnesses, those who met him were not subject to testing as to the accuracy of their evidence, and a potentially critical witness was excused attendance for questioning. The review by Sir Desmond, even when taken with earlier inquiries, was not sufficient to fulfil the requirements of Article 2 [134]. Mrs Finucanes representative had declined an invitation made by the Court of Appeal to amend her application and plead, as a freestanding issue, that the state was in breach of its Article 2 obligations. Notwithstanding this, the issue of whether there was a breach of the procedural obligation under Article 2 was before this Court and called for determination [151]. In any event, the confines of the deliberations of the Supreme Court are not necessarily determined by the manner in which the parties choose to make their presentations. Whilst it is unnecessary to decide this point in the present appeal, to allow a violation of an ECHR right to go unremarked upon may well be in breach of the spirit, if not the literal requirement, of section 6 of the HRA [152].
Under the Civil Partnership Act 2004 (CPA), only two people of the same sex may enter into a civil partnership. The Marriage (Same Sex couples) Act 2013 (MSSCA) made marriage of same sex couples lawful. The CPA was not repealed when the MSSCA was enacted. Consequently, same sex couples wishing to formalise their relationship have a choice as to whether to enter into a civil partnership or to marry. This choice is not available to different sex couples. The appellants are a different sex couple in a committed long term relationship, which they wish to formalise. They have genuine ideological objections to marriage based upon what they consider to be its historically patriarchal nature. They wish instead to enter into a civil partnership, which they consider would reflect their values and give due recognition to the equal nature of their relationship. They sought judicial review of the respondents continuing decision not to make changes to the CPA to allow different sex couples to enter into civil partnerships. The issue was whether the bar on different sex couples entering into civil partnerships breaches the appellants rights under article 14 (the prohibition on discrimination) together with article 8 (the right to respect for private life) of the European Convention on Human Rights (ECHR). The High Court and Court of Appeal dismissed their claim. It is now accepted by the respondent that there is an inequality of treatment between same sex and heterosexual couples, and that this inequality engages article 14 read in conjunction with article 8 of the ECHR. The respondent also accepts that the inequality therefore requires justification from the date it first began (ie. on the coming into force of the MSSCA). The principal issue before the Supreme Court was therefore whether justification of the inequality includes consideration of the period of time during which the respondent could investigate how best to eliminate the inequality or whether the justification must be directed exclusively to the very existence of the discrimination. The Supreme Court allows the appeal. Lord Kerr gives the judgment with which all the other Justices agree. When Parliament enacted the MSSCA, it consciously decided not to abolish same sex civil partnerships or to extend them to different sex couples, even though it was recognised at the time that this would bring about an inequality of treatment between same sex partners and those of different sexes, and that this inequality would be based on the sexual orientation of the two groups. It was decided that further investigations were required, and the government concluded that it should not take a final decision on the future of civil partnerships until societal attitudes to them became clearer after same sex marriages had taken root [7]. Government consultations since the introduction of the MSSCA have failed to produce a consensus as to how, or if, the legal position relating to civil partnerships should change. The respondent concluded that it was proportionate to obtain more data in order to decide whether there was a need to preserve civil partnerships [9]. The court rejects the respondents argument that European Court of Human Rights (ECtHR) case law requires a wide margin of appreciation in relation to the timing of legislative change to recognise different forms of relationship, and that a significant measure of discretion should be accorded to Parliament in its decision as to when the timing of legislative change in the field of civil partnerships should occur. Although a measure of latitude should be permitted to Parliament, the concept of a margin of appreciation as applied by the ECtHR has no application in domestic law a national court must confront the interference with an ECHR right and decide whether it is justified [27 28]. In as much as there is a margin of discretion analogous to that applied by the ECtHR, in cases of unequal treatment on grounds of sexual orientation, the margin is narrow [32]. It is reasonable that the legislature should be allowed time to reflect on what should be done when dealing with an inequality that it has come to recognise due to evolving societal attitudes. By contrast, to create a situation of inequality and then ask for time in this case several years to determine how that inequality is to be cured is less obviously deserving of a margin of discretion. [36] There is a well established four stage test to determine whether interference with a qualified ECHR right can be justified: (a) is the legislative objective (legitimate aim) sufficiently important to justify limiting a fundamental right; (b) are the measures which have been designed to meet it rationally connected to it; (c) are they no more than are necessary to accomplish it; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? [41]. To be legitimate, the aim must be intrinsically linked to the discriminatory treatment. In this case, it is not. Tolerance of discrimination while the respondent determines how best to remedy it cannot be characterised as a legitimate aim [42]. The government had to eliminate the inequality of treatment immediately when the MSSCA came into force. This could have been done either by abolishing civil partnerships or by instantaneously extending them to different sex couples. If the government had chosen one of these options, it might have been theoretically possible to then conduct research which could have influenced its longer term decision as to what to do with civil partnerships. Taking time to evaluate whether to abolish or extend could never, however, amount to a legitimate aim for the continuance of the discrimination as it is not connected to the justification for discrimination [50]. Even if the interference with the appellants rights in this case could be regarded as a legitimate aim, a fair balance between their rights and the interests of the community has not been struck. The interests of the community in denying civil partnerships to different sex couples who do not wish to marry are unspecified, whereas the consequences of this denial for such couples may be far reaching. A couple may, for example, suffer serious fiscal disadvantage if one of them dies before their relationship is formalised. There is no end point in sight for the present inequality of treatment [52]. The court has discretion as to whether to make a declaration of incompatibility and must decide whether it is appropriate to do so in a particular case. It should be noted that a declaration of incompatibility does not oblige the government or Parliament to do anything, and in this case, the court should not feel reticent about making such a declaration. The court therefore makes a declaration that sections 1 and 3 of the CPA, to the extent that they preclude a different sex couple from entering into a civil partnership, are incompatible with article 14 taken in conjunction with article 8 of the ECHR [54 62].
Mr Louca is a Cypriot national resident in the UK. His extradition is sought by the Office of the Public Prosecutor of Bielefeld, Germany, for six offences of tax evasion under a European Arrest Warrant (EAW) dated 14 July 2008. Two previous EAWs had been issued by the German Prosecutor, each resulting in the arrest of Mr Louca in April 2008, but were successively withdrawn because of minor technicalities. The current EAW refers to the domestic German arrest warrant but not to the previous, withdrawn, EAWs. Mr Louca argued that it was unlawful to extradite him under an EAW which did not refer to all the previous EAWs. The Supreme Court holds that, when a European Arrest Warrant is issued by the authorities of one Member State for execution in another, it must include a reference to the domestic warrant upon which the European Arrest Warrant is based, but need not include references to any other European Arrest Warrant which may have been issued on the basis of the domestic warrant. The appeal is therefore dismissed. (Paragraph [15]) Lord Mance gave the judgment of the Court, upholding the reasoning of the Divisional Court. The words any other warrant in section 2(4)(c) of the Extradition Act 2003 must be construed in the light of the European Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States of the European Union. (Paragraph [3]). The Framework Decision does not require any other warrant to include previous EAWs. The relevant part of the Decision article 8(1)(c) does not use the phrase European arrest warrant as it does elsewhere. The reference to an enforceable judgment, an arrest warrant or any other enforceable judicial decision (article 8(1)(c)) cannot sensibly be limited to an EAW. One EAW is most unlikely to be based upon another. (Paragraphs [9] [10]) There was no other reason to require the EAW to include information about prior EAWs upon which no reliance was being placed. Not doing so would not prevent Mr Louca arguing that extradition was an abuse of process, and other due process factors were comprehensively covered by the Extradition Act. (Paragraphs [13] [15]) Judgments
The Respondent operates an offshore installation in the North Sea. In April 2013, the installation was inspected by Her Majestys Inspectors of Health and Safety. The inspectors formed the view corrosion had rendered the stairways and stagings to the helideck (a helicopter landing platform) unsafe and served a prohibition notice on the Respondent under s.22 of the Health and Safety at Work Act 1974 (the 1974 Act). In May 2013, the Respondent appealed against the prohibition notice to an employment tribunal under s.24 of the 1974 Act. In July 2013, the Respondent arranged for the metalwork which had been of concern to the inspector to be removed from the installation and tested. The results of the testing showed that all the metalwork passed the British Standard strength test with the exception of a panel which had been damaged during the inspection and could not be tested reliably. There was no risk of personnel being injured by falling through it. The Respondent sought to rely upon the expert report as part of their appeal to the tribunal. The issue in the appeal is whether a tribunal is confined to the material which was, or could reasonably have been, known to the inspector at the time the notice was served or whether it can take into account additional evidence which has since become available. The Supreme Court unanimously dismisses the appeal. Lady Black gives the sole judgment with which the other Justices agree. On an appeal under s.24 of the 1974 Act, the tribunal is entitled to take into account all the available evidence relevant to the state of affairs at the time of the service of the prohibition notice, including information coming to light after it was served. [24] It is vital for inspectors to be able to take prompt and effective action to ensure compliance with the provisions of the 1974 Act. A prohibition notice is a powerful tool in the inspectors hands. It not only allows an inspector to step in when he is of the opinion that a particular activity will involve a risk of serious personal injury, it also encourages employers to have good systems in place to improve public safety. [12] However, the service of a prohibition notice on a business has the potential to do financial and reputational harm to it. [13] The answer to the issue of what information the tribunal is entitled to take into account when forming its view of the facts at the material time is not clear from the wording of s.24 and must be considered in the light of the statutory scheme as a whole. [17] An appeal against an inspectors notice is not against the inspectors opinion but against the notice itself. The tribunal in the present case had to decide whether the stairways to the helideck were so weakened by corrosion as to give rise to a risk of serious personal injury. There is no good reason for confining the tribunals consideration to the material that was, or should have been, available to the inspector. The tribunal must be entitled to have regard to other evidence which assists in ascertaining what the risk in fact was. If the evidence shows that there was no risk at the material time, then the notice will be modified or cancelled as the situation requires. [18] It is no criticism of the inspector when new material leads to a different conclusion about risk from the one he reached. His decision is often taken as a matter of urgency and without the luxury of comprehensive information. [19] The effectiveness of a notice is in no way reduced by an appeal process which enables the realities of the situation to be examined by a tribunal with the benefit of additional information. [20] This wider interpretation of s.24 does not undermine the role of prohibition and improvement notices in encouraging employers to have robust systems in place to demonstrate easily that no risk exists and therefore avoid the disruption of a prohibition notice which remains in force during the appeal process unless suspended by the tribunal. [21] The appellants arguments, that permitting the tribunal to look beyond the material available to the inspector will create delay and cost, do not change the conclusion on the wider interpretation of s.24. The appeal must be started within 21 days and will thereafter be under the control of the tribunal. [22] There are potent considerations in favour of the wider interpretation of s.24. The only means by which a notice can be cancelled under the statutory scheme is an appeal. However, if the appellants interpretation were correct a notice could not be dislodged even if the perceived risk of injury never in fact existed. In some cases, an employer might have to carry out unnecessary works. Further, even if, upon receipt of convincing evidence there was no risk the inspector would not seek to enforce the notice, the notice would still have the capacity to damage the reputation of the employer and his ability to do business. Furthermore, it cannot be right in those circumstances that an employer should be exposed to the possibility of criminal proceedings after his appeal is concluded. [23]
The appellant was a defendant in criminal proceedings in the Crown Court in Belfast. A legal aid certificate entitled him to public funding to instruct a solicitor and two counsel to appear on his behalf in those proceedings. During his first trial, he was represented by a barrister, Mark Barlow (described as leading junior counsel) and a solicitor advocate, Clive Neville. The jury were unable to reach a verdict and they were discharged. The appellant was tried again. He again wished to have Mr Barlow as lead counsel. In the meantime, however, Mr Barlow had been disciplined by the Bar Council of Northern Ireland (the respondent in these proceedings) on the basis that where a certificate had been granted for two counsel, unless there were exceptional circumstances meaning that a senior counsel was not available, he could not act as leading counsel. Mr Barlow therefore informed the appellant that he could not act as leading counsel. The appellant claimed that if Mr Barlow was not permitted to appear as his leading counsel, this would constitute a violation of his rights under article 6 of the European Convention on Human Rights (ECHR). The respondent Bar Council rejected this claim. The appellants re trial proceeded and he was acquitted on seven counts, with the jury failing to reach a verdict on the other four counts. The prosecution indicated that it does not propose that the appellant be tried again on the counts on which the jury failed to agree. The appellant applied for judicial review of the Bar Councils decision on the basis that it impeded his choice of lead counsel and therefore violated his right under article 6 ECHR. He asserted that his right to choose counsel was limited only by the interests of justice test within article 6.3 ECHR. The Divisional Court dismissed his application. The issue was whether, in cases where public funding for two counsel has been granted and where the accused wishes to retain a particular junior counsel, the requirement of the Bar Council that he must instruct an available senior counsel or proceed with junior counsel alone is not compatible with the accuseds right under article 6.3 to defend himself through legal assistance of his own choosing. The Supreme Court dismisses the appeal. Lord Kerr gives the judgment with which all the other Justices agree. Article 6 ECHR provides the right to a fair trial. The relevant provision is article 6.3(c), which states that every person charged with a criminal offence shall have the right to defend himself in person or through legal assistance of his own choosing. The appellant argued that this entitled him to choose which lawyers could defend him, unless the Bar Council could show that the refusal was justified [18 21]. The court examined the relevant case law of the European Court of Human Rights, which emphasises adequacy of representation over freedom of choice as to the identity of counsel. The fundamental basis of the right guaranteed by article 6.3(c) is that the legal representation should be conducive to a fair trial, rather than conferring complete freedom to an individual defendant to choose the lawyer by whom to be represented [28]. A defendant does not have the right to decide in what manner his defence should be assured the right is to be represented by sufficiently experienced counsel of ones choice, but the role to be played by that counsel cannot be dictated by the defendant [30]. In the present case, the appellant has not advanced any grounds why Mr Barlow should be designated as leading counsel so that his rights of defence would be assured. As the respondent has pointed out, Mr Barlow could continue to act for Mr Maguire but as junior counsel, either with senior counsel, or, if senior counsel was not available, alone. Mr Maguire was not deprived of the services of Mr Barlow by operation of the Bar Council code of conduct. The deprivation, if there was one, was the denial of an enhanced payment to Mr Barlow acting as leading counsel [32]. The exercise involved here is one of the courts deciding what the interests of justice require, not whether an interference with an individuals Article 6 right has been justified. Of course, the wishes of a defendant may be pertinent to the question of where the interests of justice lie but that is not because they have an intrinsic value [36]. It is clear from the relevant authorities that the essence of the right to choose ones counsel lies in the contribution that the exercise of that right makes to the achievement of the ultimate goal of a fair trial. It is not an autonomous right which falls to be considered outside that context [38]. Article 6 does not give a defendant the right to demand that he have counsel of his choice at public expense, independently of the requirements of the interests of justice. So far from impinging on the appellants rights under article 6.3(c), the relevant provision in the Bars code of conduct is designed to uphold and vindicate them [44].
The central issue in these appeals is whether at common law an employee can recover damages for loss arising from the unfair manner of his dismissal in breach of an express term of an employment contract. Each of Mr Edwardss and Mr Bothams employment contracts contained express terms governing the procedure for dismissal in cases of misconduct and each were summarily dismissed from their employment as, respectively, consultant orthopaedic surgeon and youth community worker [3], [15]. In Mr Edwards case, disciplinary proceedings were instituted against him in December 2005. He was alleged to have undertaken an inappropriate internal examination of a female patient and then denied that the examination had taken place [4]. In February 2006, a disciplinary hearing was held and the panel decided that he should be summarily dismissed for gross personal and professional misconduct [5]. By a claim issued in the High Court in August 2008, Mr Edwards claimed damages for breach of his employment contract and its wrongful termination. Among other procedural breaches, he alleged that the disciplinary panel had not been constituted in line with the applicable policy, which formed a term of his contract. His case was that, if the panel had included a clinician of the same discipline as him, his contract would not have been terminated. His preliminary schedule of loss alleged that he lost earnings (past and future) of over 3.8 million [9]. Mr Botham was suspended from work in December 2002 and was charged with gross misconduct for behaving inappropriately in relation to two teenage girls. Following disciplinary proceedings, in September 2003 he was summarily dismissed for gross misconduct. Because his misconduct was in relation to young people, he was placed on the list of persons deemed unsuitable to work with children under the Protection of Children Act 1999 (the POCA list) [14]. Mr Botham brought proceedings in respect of his dismissal in the employment tribunal. In May 2007, it held he had been unfairly dismissed and his summary dismissal was a breach of contract. In relation to the unfair dismissal, it found that the Ministry of Defence (MoD) had breached express terms of his contract set out in the Discipline Code found in the MoDs Personnel Manual [15]. The tribunal awarded him 7,000 loss of salary and benefits for his notice period, a basic award of 1,989 and a compensatory award of 53,500. His name was removed from the POCA list [16]. Mr Botham then issued proceedings in the High Court seeking damages for breach of the express terms of his contract. Relying on the findings of the tribunal, he alleged that the MoD, in conducting the disciplinary process, failed to comply with provisions of the Disciplinary Code, by reason of which he suffered a loss of reputation, was put on the POCA list and prevented from obtaining further employment in his chosen field. The Supreme Court by a majority allows the appeal. Employees may not recover damages for loss suffered as a result of a breach of a term in their employment contract as to the manner of their dismissal unless the loss can be said to precede and be independent of the dismissal. Compensation for the manner of dismissal is limited to what they may recover pursuant to the Employment Rights Act 1996 (the 1996 Act). Lord Dyson gives the leading judgment with which Lord Mance (adding further comments) and Lord Walker agree. Lord Phillips agrees that the appeals should be allowed, but for different reasons. Lady Hale and Lords Kerr and Wilson dissent. In Johnson v Unisys Ltd [2001] UKHL 13, the House of Lords held that loss arising from the unfair manner of dismissal is not recoverable as damages for breach of the implied term of trust and confidence in employment contracts: it falls within what has been called the Johnson exclusion area [1]. By the time of the report of the Royal Commission on Trade Unions and Employers Associations 1965 1968 (the Donovan report) it was settled law that an employee was not entitled to recover damages in respect of the manner of his dismissal. The Donovan report recommended that the law should be changed and that statute should establish machinery to safeguard against unfair dismissal [21]. Parliament gave effect to this recommendation in the Industrial Relations Act 1971. The relevant provisions are now contained in the 1996 Act. But Parliament placed significant limitations on the ability of an employee to complain of unfair dismissal, such as the three month time limit for bringing a claim, and on the remedies available: there is a cap on the level of the compensatory award (now 68,400). Therefore, Parliament decided to give a remedy which was less generous than that which the common law would give for breach of contract in the ordinary way [19] [23]. In each legislative modification to the unfair dismissal scheme, Parliament linked failure to comply with disciplinary procedures with the outcome of unfair dismissal proceedings; the provisions about disciplinary procedure were intended to operate within the scope of the law of unfair (not wrongful) dismissal [30] [37]. It follows that, if provisions about disciplinary procedures are incorporated as express terms of an employment contract, they are not ordinary contractual terms. Parliament intended such provisions to apply to employment contracts to protect employees from unfair dismissal. It has specified the consequences of a failure to comply in unfair dismissal proceedings. It could not have intended that they would also give rise to a common law claim for damages. Unless the parties express otherwise, they are taken not to intend that a failure to comply with contractual disciplinary procedures will give rise to a common law claim for damages [37] [39],[94]. This is regardless of whether the term is express or implied. A dismissal may be unfair for a variety of reasons and any such complaint was intended by Parliament to be adjudicated on by the specialist employment tribunal, not that an employee could choose to pursue his complaint of unfair dismissal in the ordinary courts, free from the limitations carefully crafted by Parliament [40]. However, other remedies, such as injunction, which do not cut across the statutory scheme, are not excluded [44]. Whether individual cases fall within the Johnson exclusion area is a matter of fact and depends on whether the procedural breach forms part of the dismissal process: [51]. Mr Edwards dismissal flowed from the panels erroneous findings, which flowed from its improper constitution. Likewise, Mr Botham alleges that the loss of reputation was caused by the dismissal itself. Both cases therefore fall within the Johnson exclusion area [55] [59], [99].
On 5 July 2000 the appellant suffered a serious hypoxic brain injury during a school swimming lesson at Gloucester Park swimming pool in Basildon, Essex. At the time she was aged ten and a pupil at Whitmore Junior School, for which the respondent education authority was responsible. The swimming lesson took place in normal school hours as required by the national curriculum. The appellant was assigned to a group being taught by a swimming teacher, Ms Burlinson, and a lifeguard, Ms Maxwell, was also in attendance. It is alleged on the appellants behalf that both negligently failed to notice that she had got into difficulties in the water, causing her to suffer the injury. Neither was employed by the respondent. Their services had been provided to the respondent pursuant to a contract with Beryl Stopford (trading as Direct Swimming Services) to provide the lessons. The appellant issued proceedings for negligence against a number of parties, including the respondent. Her case against the respondent included an allegation that it owed her a non delegable duty of care, with the result that it was liable for any negligence on the part of Ms Burlinson or Ms Maxwell. The respondent denied that it owed such a duty and applied to strike out this allegation against it. The allegation was struck out in the High Court and this decision was upheld in the Court of Appeal. The Supreme Court unanimously allows the appeal against the order striking out the allegation of a non delegable duty. The case will now return to the High Court to determine whether the appellant was in fact a victim of negligence. Lord Sumption gives the main judgment. Lady Hale gives a supporting judgment. Lord Clarke, Lord Wilson and Lord Toulson agree with both judgments. The question before the court was the scope of the respondents duty to pupils in its care: was it a duty to take reasonable care in the performance of the functions entrusted to it only if it performed those functions itself, through its own employees; or was it to procure that reasonable care was taken in their performance by whomever it might get to perform them a non delegable duty [4]? Non delegable duties of care are inconsistent with the fault based principles on which the law of negligence is based and are therefore exceptional [22]. English law has recognised that non delegable duties can arise in cases with the following characteristics: (1) the claimant is a patient or child or for some other reason is especially vulnerable or dependant on the protection of the defendant against the risk of injury; (2) there is an antecedent relationship between the claimant and the defendant independent of the negligent act or omission itself (i) which puts the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm in the performance of those obligations and not just a duty to refrain from conduct which will foreseeably damage the claimant; (3) the claimant has no control over how the defendant chooses to perform those obligations; (4) the defendant has delegated some function which is an integral part of the positive duty which he has assumed towards the claimant and the third party is exercising the defendants custody or care of the claimant and the element of the control that goes with it; and (5) the third party has been negligent in the performance of the very function assumed by the defendant and delegated by the defendant to him [23]. It is fair, just and reasonable to impose such duties. It is consistent with the long standing policy of the law to protect those who are inherently vulnerable and subject to a significant degree of control. It is wholly reasonable that a school should be answerable for the performance of part of its own educational function. Parents are required by law to entrust their child to a school and have no knowledge or influence over the arrangements that the school may make to delegate specialised functions, or the competence of the delegates. It is not an open ended liability and will only cover functions which the school has assumed for itself a duty to perform rather than to arrange for its performance, and only where control over the child has been delegated. The recognition of this duty has become more significant as a result of increased outsourcing of educational and supervisory functions but only replaces duties which the school formerly owed when the functions were performed by its staff [25]. On the facts of this case, as pleaded by the appellant, the respondent had delegated the control of the appellant to third parties to carry out an integral part of its teaching function during school hours, in a place where the school chose to carry out this part of its functions. If it is found that the third parties were negligent then the respondent will be in breach of duty [26]. Lady Hale, agreeing with Lord Sumption, suggests that this development of the law avoids the unsatisfactory possibility that one pupil could sue her school for injuries sustained during a negligently conducted swimming lesson where another could not, depending on the precise arrangements made by the school to provide them with swimming lessons. The boundaries of what a school may have undertaken to provide might not always be as clear cut as in this case but would have to be worked out on a future case by case basis [38].
The Respondent, Mr Gary Smith, is a plumbing and heating engineer. Between August 2005 and April 2011 Mr Smith worked for the First Appellant Pimlico Plumbers Ltd a substantial plumbing business in London which is owned by the Second Appellant, Mr Charlie Mullins. Mr Smith had worked for the company under two written agreements (the second of which replaced the first in 2009). These agreements were drafted in quite confusing terms. In August 2011 Mr Smith issued proceedings against the Appellants before the employment tribunal alleging that he had been unfairly dismissed, that an unlawful deduction had been made from his wages, that he had not been paid for a period of statutory annual leave and that he had been discriminated against by virtue of his disability. The employment tribunal decided that Mr Smith had not been an employee under a contract of employment, and therefore that he was not entitled to complain of unfair dismissal (a finding that Mr Smith does not now challenge), but that Mr Smith (i) was a worker within the meaning of s.230(3) of the Employment Rights Act 1996, (ii) was a worker within the meaning of regulation 2(1) of the Working Time Regulations 1998, and (iii) had been in employment for the purposes of s.83(2) of the Equality Act 2010. These findings meant that Mr Smith could legitimately proceed with his latter three complaints and directions were made for their substantive consideration at a later date. The Appellants appealed this decision to an appeal tribunal and then to the Court of Appeal, but were unsuccessful. They consequently appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Wilson gives the judgment with which Lady Hale, Lord Hughes, Lady Black and Lord Lloyd Jones agree. The tribunal was entitled to conclude that Mr Smith qualified as a worker under s.230(3)(b) of the Employment Rights Act 1996 (and by analogy the relevant provisions of the Working Time Regulations 1998 and the Equality Act 2010), and his substantive claims can proceed to be heard. Conceptually, it is both legitimate and convenient to treat the three positive findings of the tribunal as having been founded upon a conclusion that Mr Smith was a worker within the meaning of s.230(3)(b) of the Employment Rights Act 1996 (otherwise known as a limb (b) worker) [15]. This was because regulation 2(1) of the Working Time Regulations defines worker in identical terms to s.230(3)(b), and case law has suggested that the meaning of employment in s.83(2) of the Equality Act is also essentially the same [12 15]. Proceeding on that basis, if Mr Smith was to qualify as a limb (b) worker under s.230(3)(b) then it was necessary for him to have undertaken to personally perform his work or services for Pimlico Plumbers, and that the company be neither his client nor his customer. When considering whether Mr Smith had undertaken to provide a personal service, it was relevant that when working for Pimlico Mr Smith had a limited facility (not found in his written contracts) to appoint another Pimlico operative to do a job he had previously quoted for but no longer wished to undertake [24 5]. However, it is helpful to assess the significance of this right to substitute by considering whether the dominant feature of the contract remained personal performance on his part. In this case the terms of the contract (which referred to your skills etc.) are clearly directed to performance by Mr Smith personally, and any right to substitute was significantly limited by the fact that the substitute had to come from the ranks of those bound to Pimlico in similar terms. Consequently, the tribunal was entitled to hold that the dominant feature of Mr Smiths contract with the company was an obligation of personal performance [32 34]. On the issue of whether Pimlico Plumbers was a client or customer of Mr Smith, the tribunal had legitimately found that there was an umbrella contract between the parties, i.e. one which cast obligations on Mr Smith even when he was between assignments for Pimlico. It was therefore not necessary to consider what impact a finding that there was no umbrella contract (and therefore that the contractual obligations subsisted only during the actual assignments) would have had on the limb (b) analysis [37, 41]. Instead, one had to look at the wording of the written contractual documents to determine whether Pimlico was a client or customer of Mr Smith. On the one hand, Mr Smith was free to reject a particular offer of work, and was free to accept outside work if no work was offered by any of Pimlicos clients. He also bore some of the financial risk of the work, and the manner in which he undertook it was not supervised by Pimlico. However, there were also features of the contract which strongly militated against recognition of Pimlico as a client or customer of Mr Smith. These included Pimlicos tight control over Mr Smiths attire and the administrative aspects of any job, the severe terms as to when and how much it was obliged to pay him, and the suite of covenants restricting his working activities following termination [47 48]. Accordingly, the tribunal was entitled to conclude that Pimlico cannot be regarded as a client or customer of Mr Smith [49].
This case concerned the circumstances in which sentences passed on offenders who have given assistance to prosecuting authorities should be referred back to the sentencing court under section 74 of the Serious Organised Crime and Police Act 2005 (the 2005 Act). In August 2008 Robert and David Stewart, former members of a loyalist paramilitary organisation in Northern Ireland, arrived unexpectedly at a police station in Northern Ireland. They informed police about their involvement in offences including a murder in October 2000. They also supplied police with information concerning the alleged involvement of others in those offences. On foot of the information which they provided, the Stewarts entered into agreements with the prosecuting authorities to provide information and assist with ongoing investigations. They also undertook to provide truthful evidence at trial and to plead guilty to the offences they had committed. These agreements stated that failure to comply with the terms could result in any sentence received being referred back to the sentencing court for review pursuant to section 74 of the 2005 Act. In recognition of their assistance, the tariff for their life sentences was reduced by 75% and they both served 3 years in prison. A number of people were charged with different offences as a result of the information given by the Stewarts. Following a long trial, only one person was convicted but this was not because of evidence given by the Stewarts. Jason Loughlin was one of those acquitted. He applied for a judicial review of the decision of the prosecutor not to refer the case of the Stewarts back to the sentencing court. His application succeeded before the Divisional Court. The prosecutor appealed to this court against the Divisional Court's decision. The Supreme Court allows the appeal and dismisses the application by the Respondent, Mr Loughlin, for judicial review. Lord Kerr gives the judgment with which all other members of the panel agree. Section 74 of the 2005 Act requires that, before deciding to refer a sentence passed on an assisting offender back to the original sentencing court a prosecutor must be satisfied that the assisting offender had knowingly failed to comply with the terms of the agreement made with the prosecuting authorities and that a reference was in the interests of justice [11 12]. The Court rejected the Respondents argument that the prosecutor was required to carefully examine every conceivable aspect of the Stewarts accounts. This would have placed an impossible logistical burden on the prosecutor [15 16]. The prosecutor considered that it would not be in the interests of justice to refer the decision back to the sentencing court. She identified five factors relevant to her decision: (i) the nature and extent of assistance provided; (ii) the time which had elapsed since the original sentence had been passed; (iii) whether the imposition of a revised sentence might be considered oppressive; (iv) the potential damage to public confidence in the justice system if a referral was not made; and (v) the prospects of a successful application to the reviewing court. Having analysed these factors in relation to the Stewarts, the prosecutor concluded that the case should not be referred [17 19]. The Divisional Court had considered the key question to be whether circumstances had changed since the original sentence had been passed, suggesting that (i) the prosecutor must first consider whether there had been a change of circumstances; and (ii) if such a change had occurred, unless there were countervailing circumstances, she was bound to conclude that it was in the interests of justice that the case be referred [21 22]. The Court rejected this conclusion. To require the prosecutor to refer a sentence back where there had been a change of circumstance would entail a reference in any instance of deviation by the assisting offender from the agreement. The requirement that the referral be in the interests of justice would then have no meaningful content. Consideration of the interests of justice involves an open ended deliberation section 74(4) does not impose any constraints on how the prosecutor should approach the question [29 31].
The Appellant owns and occupies a mobile home that sits on a plot at Meadowview Park, a mobile homes site belonging to the Respondent. He pays an annual pitch fee to the Respondent for licence to use the plot. Under the terms of his agreement with the Respondent (the agreement), he is not permitted to act in such a way as to annoy or disturb other occupiers of Meadowview Park (the anti social behaviour covenant) [5]. Under the Mobile Homes Act 1983 (the 1983 Act), a site owner can only terminate an occupiers licence in certain limited circumstances [1]. This appeal concerns Paragraph 4 of Chapter 2 of Part 1 of Schedule 1 to the 1983 Act (para 4), which provides: The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the appropriate judicial body (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated. Previously, Section 3(g) of the Mobile Homes Act 1975 (the 1975 Act) provided for the right of the owner to determine the agreement for breach of an undertaking, subject to the requirement, in the case of a breach which is capable of being remedied, that he has served written notice of the breach upon the occupier and has given the occupier a reasonable opportunity of remedying it (emphasis added). However, in the 1983 Act any such clarification that the notice and reasonable time requirements only apply to remediable breaches was omitted [20]. The Appellant suffers some mental ill health, has a mild learning difficulty and exhibits autistic traits [6]. On 31 July 2006 he startled another resident of Meadowview Park, Miss Puncher, by jumping out at her from behind a tree wearing camouflage clothing [7]. In doing so he breached the anti social behaviour covenant. On 15 August 2006 the Respondent wrote to the Appellant warning that he must not make unsolicited approaches to other residents, or the Respondent would apply to court to have the agreement terminated and his mobile home removed. This letter amounted to notice to the Appellant to remedy his breach of the anti social behaviour covenant for the purposes of para 4 [8]. The Appellant did not commit any further breach until 15 July 2009, when he told another resident, Mr Carter, that two women had reported him for jumping out on them in the woods and he was going to kill them. The Appellant then made threats to kill Mr Carter [10]. The Respondent applied to court for termination of the agreement [11]. On 17 August 2011 HHJ Moloney QC found that the requirements of para 4 were satisfied, granted the Respondents application and ordered that the Appellants licence to station his mobile home at Meadowview Park be terminated. The Appellant appealed to the Court of Appeal and his appeal was dismissed on 16 May 2012 [3]. The Supreme Court unanimously allows the Appellants appeal against the order to terminate his licence to station his mobile home at Meadowview Park. Lord Wilson gives the main judgment. Lady Hale and Lord Toulson give concurring judgments. Lord Carnwath (with whom Lord Reed agrees) gives a concurring judgment allowing the appeal for different reasons. The panel reached the following conclusions as to the correct application of para 4: Whether para 4 applies to an irremediable breach Lord Wilson (with whom Lady Hale [44] and Lord Toulson [62] agree) holds that the notice requirement in para 4 applies only to a breach that is remediable [22]; it would be nonsensical to require service of a notice to remedy a breach which is incapable of remedy [20]. Lord Carnwath (with whom Lord Reed agrees) considers that a notice to remedy is required in all cases because the omission of limiting words in para 4 (such as the words in the 1975 Act, namely in the case of a breach which is capable of being remedied) must be regarded as deliberate [81]. The views of the court on this question are obiter dicta as the panel unanimously holds that the Appellants breach of 31 July 2006 was remediable [47] (see below). Whether a breach of an anti social behaviour covenant can be remedied It is the unanimous view of the court that an occupier can in principle remedy a breach of an anti social behaviour covenant. To decide if a breach is remediable requires a practical enquiry as to whether, and if so how, the mischief resulting from the breach can be redressed [31][52]. Some breaches are so serious as to be irremediable [37][53]. What constitutes compliance with a notice to remedy a breach of an anti social behaviour covenant Lord Wilson [37], Lady Hale [48] and Lord Toulson [63 64] hold that the occupier complies with a notice to remedy by not committing any further anti social behaviour for a reasonable time. Lord Wilson explains that in cases involving breach of a negative obligation, the words within a reasonable time in para 4 must be read as meaning for a reasonable time [32]. Lady Hale characterises reasonable time as such time as is sufficient for the fears and anxiety caused by the anti social behaviour to calm down [48]. Lord Carnwath (with whom Lord Reed agrees) takes the minority view that that in the case of a negative user condition, compliance with a notice to remedy must continue indefinitely [90]. Whether the requirements of para 4 were satisfied in this case The mischief resulting from the Appellants breach of 31 July 2006, namely the alarm caused to Miss Puncher, was capable of being redressed [32]. In the view of the majority (Lord Wilson [36], Lady Hale [49] and Lord Toulson [65]) the period of almost three years during which the Appellant complied with the 15 August 2006 notice did amount to reasonable time. Therefore, following the Appellants further breach on 15 July 2009, the Respondent ought to have served a fresh notice to remedy, or to have raised an allegation that this later breach was irremediable [36]. As it failed to do so, the agreement could not be terminated pursuant to para 4. Lord Carnwath (and Lord Reed) would allow the appeal on the alternative basis that there needs to be a causal or temporal link between the notice to remedy and the subsequent breach [91] which was absent in this case [95].
The United States Government is seeking the extradition of the appellant, Mr Norris, so he may be tried on an indictment charging him with obstruction of justice. He had originally faced a further charge of price fixing. The House of Lords ruled in 2008 ([2008] UKHL 16) that the conduct alleged in relation to the price fixing charge was not capable of amounting to an extradition offence as it was not a crime under English law when it was committed. His case was then sent back to the district judge to decide whether he should be extradited on the remaining charges in the indictment. Mr Norris submitted that extradition would cause disproportionate damage to his and his wifes physical and psychological wellbeing having regard to their age, their state of health and the likely effect of the separation that extradition would impose upon them. Thus extradition would be incompatible with his right to private and family life under article 8 of the European Convention on Human Rights and he should be discharged pursuant to s 87 Extradition Act 2003. The district judge found there to be no bars to extradition. His decision was upheld on appeal to the High Court, which found that the public interest in honouring extradition treaties was such as to require Mr Norris to show striking and unusual facts or reach a high threshold if his article 8 rights were to prevail. Mr Norris appealed to the Supreme Court, arguing that the courts below had wrongly required him to demonstrate exceptional circumstances in order to show that his extradition would be disproportionate. The Supreme Court unanimously dismissed the appeal. It held that a test of exceptional circumstances had not been applied. However, in an extradition case, the consequences of any interference with article 8 rights would have to be exceptionally serious before this could outweigh the public importance of extradition. This was not such a case. Lord Phillips (with whom all the members of the court agreed) stated that it was common ground that the extradition of Mr Norris would interfere with the exercise in this country of his right to respect for his private and family life. The critical question was whether this interference was necessary in a democratic society for the prevention of disorder or crime. On the issue of principle of whether a court could properly require a person resisting extradition on article 8 grounds to demonstrate exceptional circumstances, there was no rule of law that this was the test of disproportionality but the public interest in extradition weighed very heavily indeed [paragraph 51]. It was of critical importance in the prevention of disorder and crime that those reasonably suspected of crime were prosecuted and, if found guilty, duly sentenced. Extradition was part of the process for ensuring that this occurred on a basis of international reciprocity [paragraph 52]. The reality was that only if some quite exceptionally compelling feature, or combination of features, was present that interference with family life consequent upon extradition would be other than proportionate to the objective that extradition served. Exceptional circumstances was a phrase which said little about the nature of the circumstances: it was more accurate and more helpful to say that the consequences of interference with article 8 rights must be exceptionally serious before this could outweigh the importance of extradition. The courts below were justified in considering how if at all the impact of extradition on family life would differ from the normal consequences of extradition [paragraph 56]. Three subsidiary issues arose,, which the court answered as follows: The gravity of the offence could be of relevance, especially if it was at the bottom of scale, but it usually would not be [paragraph 63]; The effect of extradition on innocent members of the family of a person resisting extradition was relevant and could be a cogent consideration [paragraph 64]; and It would rarely be relevant to consider whether the person resisting extradition could be prosecuted in the requested state. The extradition process should not become an occasion for debate about the most convenient forum for criminal proceedings [paragraph 67] On the facts of Mr Norris case, he was now 67 and had suffered ill health for some years. His wifes psychiatric condition would preclude her from travelling to the United States to support her husband and she would lose his support. The offences of obstructing justice, although subsidiary to the price fixing charge, were however very grave indeed [paragraph 72]. The public interest would be seriously damaged if any defendant with family ties and dependencies such as those which bound Mr Norris and his wife was thereby rendered immune from being extradited to be tried for serious wrongdoing [paragraph 82].
On 13 May 2003 the Respondent was injured in an accident at work. In May 2006 the Respondent issued a claim against the Appellant, his former employer, alleging breach of duty and/or negligence. In August 2007 the county court gave judgment for the Respondent on liability, with damages to be assessed at a later date. Between October 2007 and September 2008 the Appellant subjected the Respondent to undercover surveillance. This revealed the Respondent was grossly exaggerating the effect of his injuries and his incapacity to work. In December 2008 the Respondent served his first schedule of loss. He claimed damages of 838,616 including a claim for loss of earnings up to October 2008. Soon afterwards the Appellant disclosed the surveillance evidence to the Respondent. At the same time it served a re amended defence asserting that the Respondents claim was dishonestly exaggerated and should be struck out in its entirety. The Respondent subsequently served two further schedules of loss valuing the claim at approximately 250,000. All of the Respondents pleadings and schedules of loss were supported by statements of truth. The trial on damages took place in January 2010. The Respondent did not challenge the surveillance evidence. The judge held there was no doubt the Respondent had suffered serious fractures which required at least two operations. However he also found that the evidence established beyond reasonable doubt that the Respondent had fraudulently misstated the extent of his injuries and had deliberately lied to the medical experts and to the Department of Work and Pensions. The judge found that the Respondent had been fit for work and able to get work since the end of June 2007. Before that date he had been unable to work, but was not as housebound and incapable of activity as he claimed. On the basis of these findings the judge awarded the Respondent damages for loss of earnings between the date of the accident and 30 June 2007. In addition, he awarded general damages of 18,500 and damages for additional care and assistance. The total award was 88,716.76. The Appellant submitted that the court had power to strike out the claim in its entirety on the ground that it was tainted by fraud and was an abuse of process. Both the judge and the Court of Appeal (Ward and Smith LJJ) held they were bound by the decisions of the Court of Appeal in Ul Haq v Shah [2009] EWCA Civ 542 and Widlake v BAA [2009] EWCA Civ 1256 to refuse the application on the ground that the court had no power to strike out a statement of case in such circumstances. The Supreme Court unanimously holds that the court does have jurisdiction to strike the claim out for abuse of process, but declines to exercise the power in the present case. The judgment of the Court is given by Lord Clarke. The issues in the appeal are (1) whether, following a trial at which the court has held that the defendant is liable in damages to the claimant in an ascertained sum, the court nevertheless has power to strike out the claimants statement of case on the basis that it is an abuse of process; and (2) if so, in what circumstances that power should be exercised [1]. In Ul Haq v Shah the Court of Appeal held there is an invariable rule that a person cannot be deprived of a judgment for damages to which he is otherwise entitled on the ground that he is guilty of an abuse of process [25] [28]. The principles in Ul Haq were restated by the Court of Appeal in Widlake v BAA [31]. Notwithstanding those decisions, the court does in fact have power to strike out a statement of case even after the trial of an action where the court has been able to make a proper assessment of both liability and the amount of damages [33]. The language of the Civil Procedure Rules supports the existence of a jurisdiction to strike a claim out for abuse of process even where to do so would defeat a substantive claim. The express words of CPR 3.4(2)(b) give the court power to strike out a statement of case on the ground that it is an abuse of the courts process. It is common ground that deliberately to make a false claim and to adduce false evidence is an abuse of process. It follows from the language of the rule that in such a case the court has power to strike out the statement of case. There is nothing in the rule itself to qualify this power. The only restriction is that contained in CPR 1.1 and 1.2 that the court must decide cases in accordance with the overriding objective of determining cases justly [41]. The position is the same under the inherent jurisdiction of the court, so that in future it is sufficient for applications to be made under the CPR [42] However as a matter of principle the court should only exercise this power in very exceptional circumstances [36], [65]. Under the CPR the court has a wide discretion as to how its powers should be exercised. The power to strike out a claim at the end of a trial should only be exercised if the court is satisfied that the partys abuse of process was such that he had thereby forfeited the right to have his claim determined. This is a largely theoretical possibility. It must be a very rare case in which, at the end of a trial, it would be appropriate for a judge to strike out a case rather than dismiss it in a judgment on the merits in the usual way. The same is true where, as in this case, the court is able to assess both the liability of the defendant and the amount of that liability [43]. This conclusion is compatible with the European Convention on Human Rights (ECHR). In deciding whether or not to exercise the power to strike out the court will examine the circumstances of the case scrupulously. It will only strike out the claim if this is a proportionate means of achieving the aim of controlling the process of the court and dealing with cases justly [46] [48]. It is very difficult to think of circumstances in which such a measure would be proportionate. However they might include a case where there had been a massive attempt to deceive the court but the award of damages would be very small [49]. The Court rejects the submission that unless exaggerated claims are struck out, dishonest claimants will not be deterred. There are many other ways in which deterrence can be achieved. These include ensuring that the dishonesty does not increase the award of damages, making orders for costs (including indemnity costs), reducing interest, proceedings for contempt and criminal proceedings. In appropriate cases adverse inferences can also be drawn against the claimant [52],[61]. In the present case the Respondent accepts that in making statements of truth which he knew to be false and in presenting a dishonest case as to the effect of his injuries and on quantum, he was guilty of a serious abuse of process [24]. Nevertheless, as a matter of substantive law the Respondent did suffer significant injury as a result of the Appellants breach of duty. In all the circumstances it would not be proportionate or just to strike the claim out. The appeal is therefore dismissed [63] [65].
These appeals concern the obligations of insurance companies under various contracts of employers liability (EL) insurance. In particular, the appeals concern the scope of the insurers obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later. The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendants negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employees mesothelioma was caused by exposure to asbestos during a particular policy year. At first instance Burton J held that the policies should all be interpreted as having a causation wording. He therefore held that the liability trigger under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed. A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease contracted during the relevant insurance period); however they concluded that other policies (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma sustained or contracted at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employees body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an employee sustained or contracted mesothelioma during a particular policy period? The Supreme Court dismisses the insurers appeal by a 4 1 majority; Lord Phillips dissenting on the second issue. Lord Mance gives the main judgment. To resolve the meaning of the EL policies it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more generally [19]. Several features point the way to the correct construction. First, the wordings of the policies on their face require the course of employment to be contemporaneous with the sustaining of the injury [20]. Second, the wordings demonstrate a close link between the actual employment undertaken during each period and the premium agreed by the parties for the risks undertaken by the insurers in respect of that period. Third, on the insurers case there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to disease or injury in another later period [24]. Fourth, on the insurers case employers would be vulnerable to any decision by the insurers not to renew the policy. A decision not to renew might arise from the employers complying with their duty to disclose past negligence upon any renewal. Employers who discovered that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease would have such a duty. The insurers could then simply refuse any renewal or further cover [25]. Fifth, the way most of the policies deal with extra territorial issues throws doubt on any suggestion that the wordings are so carefully chosen that a court should stick literally to whatever might be perceived as their natural meaning [28]. Section 1 of the Employers Liability Compulsory Insurance Act 1969 also points the way to the correct interpretation. This states that every employer shall insure, and maintain insuranceagainst liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment. In order to give proper effect to the protective purpose of that legislation, the Act requires insurance on a causation basis [47]. There is no difficulty in treating the word contracted as looking to the causation of a disease, rather than its development or manifestation. The word contracted used in conjunction with disease looks to the initiating or causative factor of the disease [49]. While the word sustained may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later [50]. In relation to the second issue, the question is whether the EL policies cover employers liability for mesothelioma arising under the special rule in Fairchild/Barker [71]. Under that rule the law accepts a weak or broad causal link between the employers negligence and the employees mesothelioma. When construing the EL policies the concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule [74]. The purpose of the EL policies was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies [88]. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurers obligation to indemnify the employer [74]. Lord Phillips dissents on the second issue. The special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. This conclusion is not affected by section 3 of the Compensation Act 2009, which did not alter the jurisprudential basis of the Fairchild/Barker approach [132] [133].
The appellant, Mr Johnson, was born in Jamaica in 1985 to a Jamaican mother and British father who were not married to one another. His father moved to the United Kingdom with him when he was four, and he has lived here ever since. Under the law in force at his birth, Mr Johnson became a Jamaican citizen but not a British one. He would have been a British citizen had his mother and father been married to one another, or married subsequently, or had his mother had been the parent with British citizenship. He would also have been granted British citizenship had he or his father applied while he was still a child and, if over 16, of good character. But no application was made. Between 2003 and 2008 Mr Johnson was convicted of a series of serious criminal offences, culminating in a conviction for manslaughter for which he was sentenced to nine years imprisonment. In 2011 the Secretary of State made a deportation order against him on the ground that he was liable to automatic deportation as a foreign criminal under section 32(5) UK Borders Act 2007 (UKBA). Removal directions were set. Mr Johnson appealed, arguing that deportation would breach his right to family life protected by article 8 of the European Convention on Human Rights (the Convention) and be unlawfully discriminatory under article 14, given that he would not have been liable to deportation had his parents been married to one another. After reconsideration the Secretary of State confirmed her decision and also certified that Mr Johnsons claim was clearly unfounded, thereby removing his right of appeal against her decision in this country. Mr Johnsons claim was amended to challenge both the deportation decision and the issue of the certificate. The High Court held that discrimination against a child of unmarried parents at birth and thereafter violated Mr Johnsons Convention rights, and quashed the certificate. The Court of Appeal allowed the Secretary of States appeal, holding that there had been no violation of Mr Johnsons rights at the relevant time, namely his birth, which was long before the Human Rights Act 1998 (HRA) came into force. The Supreme Court unanimously allows the appeal, finding that Mr Johnsons liability to deportation by reason of the accident of his birth outside wedlock is unlawfully discriminatory, in breach of his Convention rights. The consequence is that the certificate granted by the Secretary of State will be quashed and Mr Johnsons appeal against the decision to deport him will be certain to succeed. The court also makes a declaration that the statutory requirement that a person in Mr Johnsons position must also be of good character in order to be granted British citizenship is incompatible with Convention rights, pursuant to section 4 HRA. Lady Hale gives the only substantive judgment, with which the other justices agree. Over the past fifty years there has been progressive reform of provisions discriminating against children of unmarried parents. Since 2006 a person in Mr Johnsons position has been entitled to automatic British citizenship at birth but this change was not retrospective [12, 14 17]. One of the benefits of British citizenship is the right not to be deported as a foreign criminal. The obligation on the Secretary of State to deport a foreign criminal does not, however, apply if removal will breach his Convention rights: s 33(1) UKBA [18]. The issue before the court was whether the basis for Mr Johnsons appeal, namely that to deport him would breach his Convention rights, was clearly unfounded so as to justify the grant of the certificate. This raised the questions of whether the rules denying him citizenship had a one off effect at his birth or had continuing consequences which were within the scope of the HRA, and whether this discriminatory effect could be justified [23]. The right to a nationality is not as such a Convention right but denial of citizenship when it has important effects on a persons identity falls within the ambit of article 8 and so triggers the application of the prohibition of discrimination in article 14 [27]. Birth outside wedlock is a status for the purpose of article 14 and falls within the class of suspect grounds where very weighty reasons are required to justify discrimination [29, 30]. In Mr Johnsons case, what needed to be justified was his current liability to deportation when he would not be so liable but for the accident of birth outside wedlock for which he was not responsible. No justification had been suggested for this and it cannot therefore be said that his claim that deportation would breach his Convention rights was clearly unfounded [34]. In these circumstances the certificate would be quashed and Mr Johnsons appeal allowed to proceed. His appeal is also, for the same reasons, certain to succeed [35]. The court went on to consider whether any of the statutory provisions affecting persons in Mr Johnsons position should be subject to a declaration that they are incompatible with Convention rights, pursuant to s 4 HRA. It was not necessary to do so in order to dispose of the case, but the court makes such a declaration in respect of paragraph 70 of Schedule 9 to the Immigration Act 2014, which imposes a requirement that an applicant for British citizenship who, but for their parents marital status would have automatically acquired citizenship at birth, be also of good character [36 39].
Private Jason Smith, a member of the Territorial Army since 1992, was mobilised for service in Iraq in June 2003. After acclimatising for a short period in Kuwait he was sent to a base in Iraq, from where he was billeted in an old athletics stadium. By August the daytime temperature in the shade was exceeding 50 degrees centigrade. On 9 August he reported sick, complaining of the heat. Over the next few days he was employed in various duties off the base. On the evening of 13 August he collapsed at the stadium and died of heat stroke. An inquest found that Private Smiths death was caused by a serious failure to address the difficulty he had in adjusting to the climate. Private Smiths mother commenced proceedings to quash that verdict and for a new inquest to be held. She argued that the United Kingdom had owed her son a duty to respect his right to life which was protected by article 2 of the European Convention on Human Rights (ECHR) and that the inquest had to satisfy the procedural requirements of an investigation into an alleged breach of that right. The Secretary of State denied that a further inquest was required on the facts of the case. He also denied that a soldier on military service abroad was subject to the protection of the Human Rights Act 1998 when outside his base, while accepting that in this case Private Smith had died within the UKs jurisdiction on the base. The High Court held that Private Smith had been protected by the Human Rights Act 1998 at all times in Iraq and ordered a fresh inquest. Before the Court of Appeal the Secretary of State agreed he would not submit to the new coroner that the requirements of article 2 were inapplicable. Notwithstanding that concession, both the Court of Appeal and the Supreme Court considered that the appeal of the Secretary of State raised two issues of general importance and of practical concern: whether on the true interpretation of article 1 of the ECHR British troops operating on foreign soil fell within the jurisdiction of the United Kingdom (the jurisdiction issue); and whether the fresh inquest into the death of Private Smith must conform with the procedural requirements implied into article 2 (the inquest issue). The Court of Appeal answered both questions in the affirmative. The Supreme Court allowed the appeal on the jurisdiction issue (Lady Hale, Lord Mance and Lord Kerr dissenting) and unanimously dismissed the appeal on the inquest issue. It held that it was not necessary in every case of a death of a serviceman abroad to carry out an investigation which examined whether there was fault on the part of the state because (a) the Human Rights Act 1998 did not apply to armed forces on foreign soil and (b) in any event, there was no such automatic right. The type of investigation would depend on the circumstances of the case. The jurisdiction issue Lord Phillips stated that the European Court of Human Rights in Strasbourg had held that jurisdiction within the meaning of article 1 was essentially territorial but extended in exceptional circumstances requiring special justification to other bases of jurisdiction. The difficulty lay in defining those exceptions [para 11]. It was unlikely that the Contracting States, when they agreed the ECHR in 1951 in the aftermath of a global conflict in which millions of troops had been deployed, regarded it as desirable or practicable to extend the protection of article 2 to troop operations abroad [para 58]. It was a novel suggestion that a states armed forces by reason of their personal status fell within the jurisdiction of the state when on foreign soil and the proper tribunal to resolve the issue was the Strasbourg Court itself [para 60]. Lord Collins observed that in practice the exceptions recognised by the Strasbourg court had consisted of (i) territorial jurisdiction by a state over the territory of another contracting state; (ii) extensions of territorial jurisdiction by analogy and (iii) commonsense extensions of the notion of jurisdiction to fit cases which plainly should be within the scope of the ECHR [para 305]. This case came within none of them. Jurisdiction could not be established simply on the basis of the UKs authority and control over them, nor were there policy grounds for extending the scope of the ECHR to armed forces abroad, which would ultimately involve the courts in issues relating to the conduct of armed hostilities which were essentially non justiciable [para 308]. Lord Mance, dissenting, considered that as an occupying power in Iraq, the UK had under international law an almost absolute power over the safety of its forces. The relationship was not territorial but depended on a reciprocal bond of authority and control on the one hand and allegiance and obedience on the other [para 192]. In his view the Strasbourg court would hold that the armed forces of a state were within the meaning of article 1 and for the purposes of article 2 wherever they might be [para 199]. Lord Kerr agreed. If the state could export its jurisdiction by taking control of an area abroad it could equally do so when it took control of an individual. In his view this had already been recognised albeit obliquely by the Strasbourg court [para 331]. The inquest issue Lord Phillips stated that where there was reason to suspect a substantive breach by the state of the article 2 right to life, it was established that the state of its own motion should carry out an investigation into the death which had certain features: a sufficient element of public scrutiny, conducted by an independent tribunal, involving the relatives of the deceased and which was prompt and effective [para 64]. There was no automatic right to such an investigation whenever a member of the armed forces died on active service [para 84]. The UK had a staged system of investigation into deaths. Some form of internal investigation would always be held into military deaths in service [para 85] and a public inquest was required whenever a body was brought back to this country. This would satisfy many of the procedural requirements of article 2. If, in the course of the inquest, it became apparent that there might have been a breach by the state of its positive article 2 obligations, this should, insofar as possible, be investigated and the result reflected in the coroners verdict, so as to satisfy the procedural requirements of article 2 [para 86]. In Private Smiths case, the courts below were correct to hold that the coroner should have found a possibility that there had been a failure of the system to protect soldiers in extreme temperatures. It followed that the new inquest should comply with the procedural requirements of article 2 [paras 87 and 88]. Lord Rodger considered that the Secretary of State had correctly conceded that an article 2 investigation was needed on the facts of this case but this was not always the position. The protection of the armed forces could never be complete; deaths and injuries were inevitable. It was for this very reason that the armed forces deserved and enjoyed the admiration of the community [para 122]. It was contrary to the very essence of active military service to expect the authorities to ensure that troops would not be killed or injured by opposing forces [para 125]. Furthermore, many issues of concern to the relatives of soldiers killed on active service raised questions of policy not legality, and would fall outside the scope of any investigation by a coroner [para 127].
On 12 May 2006 the appellant became a volunteer adviser for the respondent following an interview. The position was unpaid and no contract was signed. However, both parties signed a volunteer agreement setting out the nature of the role and what was expected of them. The volunteer agreement was not legally binding. After signing the agreement the appellant completed a period of training before starting as a voluntary adviser carrying out a wide range of advice work duties. Around a year later, on 21 May 2007, the appellant claims she was asked to cease to act as a volunteer adviser in circumstances amounting to discrimination on grounds of disability. As a result the appellant sought to bring proceedings against the respondent. The substance of this claim has yet to be the subject of adjudication as the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal have all held that the Employment Tribunal has no jurisdiction to hear the case. Each held that the appellant, as a volunteer rather than an employee, falls outside the scope of the protections against discrimination on the grounds of disability afforded by the Disability Discrimination Act 1995 and Directive 2000/78/EC (the Framework Directive). The appellant appeals to the Supreme Court on the basis that the lower courts erred in interpreting the Directive. She argues that her voluntary activities constituted an occupation for the purposes of article 3(1)(a) of the Framework Directive, that the protection against discrimination on the grounds of disability intended to be afforded by the Directive should therefore extend to her, and that effect should be given to this conclusion either under the principle in Marleasing Case C 106/89 or alternatively by recognising her as having a direct claim under the principle in Mangold Case C 144/04. She further contends that the meaning of the Framework Directive is at least open to reasonable doubt and that a reference should be made to the Court of Justice of the European Union (CJEU) in order to clarify whether the Directive applies to at least some categories of volunteer. The Supreme Court unanimously dismisses the appeal. Since the appellant had no contract, she did not on the face of it benefit by the domestic protection afforded by the Disability Discrimination Act 1995. Whether she could have any claim thus depended upon whether it is the intention of article 3(1)(a) of the Framework Directive that there should be wider protection, covering volunteers in her position. In the Courts unanimous view, that is not its intention. This is not open to reasonable doubt and there is no need for a reference to the CJEU for a preliminary ruling. The judgment of the Court is given by Lord Mance. The Directive is not unlimited in scope or extent; instead it confers carefully defined protections against discrimination on grounds of disability to apply in specified circumstances [24]. In this sense the Directive is of a piece with other anti discrimination measures enacted both domestically and at EU level which confer specific protections on specified groups of persons [24 26]. The appellant relies upon the Directives application in relation to access to employment, to self employment or to occupation (article 3(1)(a)). However, the Court does not accept that her complaint relates to access to occupation within the meaning of these words. [45]. The concept of access to occupation contemplates access to a sector of the market rather than to a particular post. The words must be understood in the context of article 3(1)(a) of the Directive and do not operate on the same level as the terms employment and self employment [29 30]. This interpretation finds support from other language versions of the text, from the lack of any reference to occupation in article 3(1)(c) concerning employment and working conditions, including dismissals and pay and from the internationally accepted meaning of occupation in the context of the International Labour Organisations Convention No 111, to which Convention the Directive refers in recital 4 [31 35]. The legislative history confirms that it was not intended that article 3(1)(a) should encompass voluntary work. First, no reference was made to voluntary work in the European Commissions original proposal or in the annexed impact assessment [37 38]. Second, a proposed amendment emanating from the European Parliament which would have extended article 3(1)(a) to include unpaid or voluntary work was not accepted by the Council [39 41]. Subsequent to the passage of the Directive the European Commission has continued to review its implementation by Member States, without it ever being suggested that the apparent absence in the UK or any other Member State of general protection in respect of to volunteers amounts to a failure to properly implement the Directive [42]. There is no scope for reasonable doubt about the conclusion that the Directive does not cover voluntary activity [46 48]. Recommendations by the French equivalent of the Equality and Human Rights Commission (EHRC) indicating otherwise carry no greater weight in the construction of the Directive than the EHRCs own submissions before the Supreme Court in this case [49 51]. Since article 3(1)(a) does not extend to voluntary activities of the sort undertaken by the appellant, it is unnecessary to consider the issues of EU law which would have arisen from a contrary conclusion, particularly the possible relevance and scope of the principle in either Marleasing or Mangold [58].
The case concerns the application of the criteria for making a care order under section 31 of the Children Act 1989 when the risk is of future psychological or emotional harm and the role of the appellate courts once the trial judge has made an order. The child concerned was removed from her parents at birth under an interim care order. The mother was for many years in an abusive relationship with her step father. She also has criminal convictions for dishonesty and a history of making false allegations. She has been diagnosed with somatisation disorder, a condition which involves making multiple complaints to medical professionals of symptoms for which no adequate physical explanation can be found. In the course of the proceedings she was also diagnosed with factitious disorder, a related psychiatric condition involving the deliberate exaggeration or fabrication of symptoms and the recitation of a false medical history. In 2009 she escaped the abusive relationship with her stepfather, leaving behind their ten year old daughter, and quickly formed a relationship with the father of this child, who has been convicted of many serious offences. He has four older daughters, with whom he has an amiable relationship but his involvement in their lives has been marginal, not least because of the many years he has spent in prison. While the child was in interim care, the parents visited frequently and formed a good relationship with their daughter. They had shown their commitment to her in spades. The trial judge found that, if placed in her parents care, there was a risk that the child would be presented for and receive unnecessary medical treatment, that she might grow up to copy her mothers behaviour, and at the very least be confused at the difference between the real world and her mothers dishonest presentation of it. There would have to be a multi disciplinary programme of monitoring and support to avert these risks and the parents would not be able to co operate with such a programme because of their fundamentally dishonest and manipulative approach towards social workers and other professionals whom they perceived to be challenging of their points of view. Accordingly, there was no other way in which the feared harm to the child could be prevented than by a care order with a view to adoption. The Court of Appeal upheld that judgment. Both parents appealed to the Supreme Court. The Supreme Court by a majority of 4:1 (Lady Hale dissenting) dismisses the appeal. The High Court judge was entitled to conclude that the threshold conditions for the making of a care order had been satisfied in this case [48, 64, 131]: Before a care order may be made under section 31 of the 1989 Act, the judge has to be satisfied that: (a) the child is suffering or is likely to suffer significant harm; and (b) the harm or likelihood of harm is attributable to the care likely to be given to the child if a care order is not made, not being what it would be reasonable to expect a parent to give to the child, or to the childs being beyond parental control [23, 177]. A likelihood of significant harm means no more than a real possibility that it will occur, but a conclusion to that effect must be based upon a fact or facts established on the balance of probabilities. Harm means ill treatment or impairment of health or development, and development includes emotional development. Whereas the concept of ill treatment is absolute, the concept of impairment of health or development is relative to the health or development which could reasonably be expected of a similar child [24, 25, 178]. Courts should avoid seeking to explain the meaning of the word significant. However, the severity of the harm required is inversely correlated with the likelihood of the harm, i.e. the less likely the harm is to occur the more serious the harm will need to be [26, 56, 188]. Article 8 of the ECHR is not engaged when a court assesses whether or not harm is significant for these purposes; that provision will only be engaged in a case such as this if there is an interference with the right to respect for family life, which can only occur at the stage of determining whether or not a care or supervision order should be made [29, 62, 189]. The character of the parents is relevant at every stage of the inquiry, including the assessment of whether the threshold conditions set out in section 31(2) of the 1989 Act have been satisfied because the character of the parents may affect the quality of their parenting [31, 71]. The conduct of the parents giving rise to harm or the likelihood of harm is not required to be intentional or deliberate; the harm or likelihood of harm need only be attributable to the care given by the parents or the care likely to be given by them not being what it would be reasonable to expect a parent to give to the child [31]. A determination as to whether the threshold conditions for a care order have been satisfied depends on an evaluation of the facts of the case as found by the judge at first instance; it is not an exercise of discretion. An appellate court may interfere with such a decision only if it is wrong, but it need not have been plainly wrong [44, 61, 110, 139, 203]. In determining whether the threshold conditions for a care order are satisfied and whether it is appropriate to grant a care order, an appellate court must have regard to the advantages which the judge at first instance had over an appellate court, including the judges ability to assess what may happen to the child in the future on the basis of the oral evidence given by the candidates for the care of the child [40 42, 58 60]. The High Court judge was also entitled to conclude that the making of a care order in relation to Amelia, with a view to her being adopted was necessary and did not violate the rights of Amelia, M, or F to respect for their family life under article 8 of the ECHR [48, 98, 131 133]: A high degree of justification is needed under article 8 if a decision is to be made that a child should be adopted or placed in care with a view to adoption against the wishes of the childs parents. Domestic law runs broadly in parallel with article 8 in this context: the interests of the child must render it necessary to make an adoption order. A care order in a case such as this must be a last resort [34, 74 78, 82, 130, 135, 198, 215]. Section 6 of the Human Rights Act 1998 does not require an appellate court to determine afresh issues relating to Convention rights; an appellate court, including the Supreme Court, is required only to conduct a review of the lower courts decision [36 37, 83 90, 136]. The making of a care order, however, is not a purely discretionary decision; a trial judge has an obligation under section 6 of the 1998 Act to ensure that he/she does not violate article 8 of the ECHR. Accordingly, it is not appropriate for an appellate court reviewing such a decision to apply the test normally used when reviewing a purely discretionary decision, i.e. whether the lower court exceeded the generous ambit within which reasonable disagreement is possible [45]. The appropriate test is whether the lower court was wrong [47, 91 92, 139]. Lady Hale and Lord Kerr disagree with this analysis, taking the view that an appellate court reviewing whether a care order violates article 8 of the ECHR must consider that issue for itself on the basis of the material put before it (whilst attributing appropriate weight to the reasons given by the lower court) [115 120, 204 205]. There are a number of features relative to the personalities of Amelias parents, and to the psychiatric conditions of M, which raised a real possibility that, in their care, Amelia would suffer impairment of her emotional development. The key feature of this case which justified the judges decision not only that the threshold conditions for making a care order were satisfied but that such an order was appropriate was that Amelias parents were unable to offer the elementary cooperation with professionals that her safety in their home would require. Adoption was the only viable option for Amelias future [48, 99 100, 132, 106]. Lady Hale takes the view that this was a case based on the mere possibility that the child would suffer psychological harm in the future. There was no risk that these parents would neglect or abuse their child. Even if this were sufficient to cross the threshold laid down in section 31(2) of the Children Act 1989, it had not been demonstrated that a care order with a view to adoption was necessary to protect the child that nothing else would do when nothing else had been tried. The care order was not, therefore, a proportionate response to the harm which is feared.
Vauxhall Motors Ltd has a large manufacturing plant at Ellesmere Port in Cheshire on the banks of the Manchester Ship Canal. When the plant was built in the early 1960s, Vauxhall entered into a contract (the Licence) with the Manchester Ship Canal Company (MSCC) allowing Vauxhall to construct a system of pipes and chambers across MSCCs land (the Spillway) and to drain surface water and treated industrial effluent into the Canal. Vauxhall agreed to pay 50 per year to MSCC in exchange for these rights. Clause 5 of the Licence allowed MSCC to terminate the Licence if (among other things) Vauxhall did not pay its annual rent within 28 days of a demand. Vauxhall duly built the Spillway and has used it for drainage from its Ellesmere Port factory ever since. Its right to use the Spillway is worth several hundreds of thousands of pounds per year. In early 2014, by administrative oversight, Vauxhall failed to pay its rent within 28 days of a demand. On 10 March 2014, MSCC served notice terminating the Licence under clause 5. This meant that Vauxhall faced having to negotiate a new licence at a cost of hundreds of thousands per year for its failure to pay 50. Vauxhall asked the High Court to grant equitable relief from forfeiture. This doctrine allows the court to relieve parties from terms which forfeit their rights in order to secure some lesser primary obligation if they operate harshly. In this case, MSCCs right to terminate under clause 5 was a forfeiture clause which secured Vauxhalls obligation to make an annual payment of 50. HHJ Behrens QC granted relief from forfeiture, effectively reinstating the Licence on condition that Vauxhall paid its arrears and certain other costs. The Court of Appeal upheld his decision. MSCCs appeal to the Supreme Court concerns whether the court had jurisdiction to grant relief on the facts of this case. MSCC argues that in relation to land the courts can only relieve parties from the forfeiture of proprietary rights which would exclude Vauxhalls contractual rights under the Licence. Vauxhall argues the doctrine is broad enough to protect any right to use land. The Supreme Court unanimously dismisses the appeal. Lord Briggs gives the main judgment with which Lord Carnwath, Lady Black and Lord Kitchin agree. Lady Arden gives a concurring judgment. The Court rejects MSCCs argument that, in the context of land, equitable relief is only available for forfeiture of property rights, as opposed to a right to possession under a contract. In the context of personal property (property which is not land), the decided cases suggest that equitable relief is available for forfeiture of proprietary or possessory rights [24]; [28]; [32] [34]. On a proper analysis, possessory rights means something falling short of ownership, or of a proprietary interest [43]. Now that it is settled that equitable relief may apply to forfeiture of possessory rights in the context of personal property, there are powerful reasons why it should also do so in the context of land. First, the doctrine of relief from forfeiture historically developed in the context of land [44]. Secondly, there is no logical or principled reason for distinguishing between rights over land and rights over other forms of property [45]; [76]. Thirdly, MSCCs distinction would lead to arbitrary results. The courts should identify the scope for equitable intervention by taking a principled approach and consider the nature and purpose of its power to grant relief [47]. The concept of possessory rights does not lead to significant uncertainty in the law. It is frequently used in the context of commercial law and there is no immediately obvious reason why it should not be used in relation to rights over land [41] [42]. Therefore, the Court concludes that the courts may relieve against the forfeiture of possessory rights over land. However, the majority rejects Vauxhalls wider argument that relief from forfeiture should extend to all rights to use land [50]. Lady Arden expresses no view on this point because it was not fully argued and is not essential to the appeal [69]. On the facts, this Licence did grant possessory rights to Vauxhall. As the Court of Appeal explained, Vauxhall gained virtually exclusive possession of the Spillway and a high degree of control over it in perpetuity. As a result, Vauxhall was entitled to ask the court for relief from forfeiture of those rights [46]; [48]; [56] [57]; [89] [90]. In her concurring judgment, Lady Arden sets out the underlying principles in detail [60] [91]. On her approach, the key question is not what category of rights are at stake, but whether the circumstances in which relief from forfeiture is sought to be invoked are those in which equity would grant relief [76] [77]. She holds that the extension of relief from forfeiture to possessory rights does not create an unacceptable loss of certainty [88].
In January 1997, Mr Peacock was convicted of five offences of conspiracy to supply controlled drugs and sentenced to 12 years imprisonment, reduced on appeal to ten years. Mr Peacock was found to have benefited from his drug trafficking to the extent of 273,717.50. However, at the time of sentence, he owned realisable assets worth only 823, so, accordingly, a confiscation order was made against him just for this lesser sum. Following his release from prison in November 2000, Mr Peacock went into the property business and, entirely legitimately, acquired very substantial assets. The prosecution sought recovery of the full 273,717.50 and applied to the High Court. The High Court granted the appropriate certificate increasing the realisable amount under the original confiscation order; and, on application by the prosecution, the Crown Court substituted for the 823 originally recoverable the sum of 273,717.50. Mr Peacock appealed the lawfulness of the certificate issued by the High Court. The Court of Appeal dismissed his appeal. Had Mr Peacock committed the drug trafficking offences of which he was convicted after 24 March 2003, the Proceeds of Crime Act 2002 (POCA) would have applied and, under section 22(3) of that Act, Mr Peacock would clearly have been liable to a further court order increasing to the full extent of his criminal gain the amount recoverable under the confiscation order by reference to his after acquired assets. However, Mr Peacock committed the relevant drug trafficking offences in 1995, and the question therefore arose whether the same position had obtained under section 16(2) of the Drug Trafficking Act 1994 (the 1994 Act). The questions for the Supreme Court were: (1) Did section 16 of the 1994 Act apply after POCA came into force on 24 March 2003? (2) If section 16 was in force after 24 March 2003, was the High Court entitled to have regard to after acquired assets under section 16(2) when issuing a certificate to increase the amount payable under the confiscation order? The Supreme Court dismisses the appeal by a majority (Lord Hope and Lady Hale dissenting on the second issue). Lord Brown gives the leading judgment of the Court with which Lord Walker and Lord Wilson agree. The first issue before the Court is dealt with swiftly and by unanimous agreement. The statutory transitional provisions implemented alongside POCA in 2003 disapplied the entire POCA confiscation order regime in respect of offences committed prior to 24 March 2003. In respect of such offences, the whole confiscation order scheme provided for by the 1994 Act continues in force. Accordingly, section 16 of the 1994 applies to Mr Peacocks circumstances [16]. The statutory purpose of the 1994 Act could hardly have been made clearer: to strip those convicted of serious crimes of the proceeds of their wrongdoing [33] [34]. Section 16(2) of the 1994 Act enables the High Court, on application, to issue a certificate certifying that the amount that might be realised in the case of a person against whom a confiscation order has been made is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased). Nothing in the definition sections of the 1994 Act requires section 16(2) to be construed as if it refers to the amount that might have been realised at the time the confiscation order was made. On the contrary, section 16(2) is plainly directed to the amount that might be realised now and by reference to realisable property now held by the defendant [21]. It is common ground between the parties that, in relation to pre acquired assets, the inquiry is into their value at the time of the application rather than their value at the time when the confiscation order was made [44]. That the provision also applies to after acquired assets property accruing to a person (whether as earnings or by gift, inheritance or some other windfall) without a corresponding diminution in that persons existing assets [35] is clear from the words in section 16(2) in parentheses which encompass all ways in which the amount might have grown [22]. Parliament would have made it clearer had its intention been to exclude after acquired assets from the scope of section 16(2) [49]. Section 17 of the 1994 Act, enabling the High Court on application to grant a certificate that the defendants realisable property is inadequate to meet the amount remaining to be recovered under the confiscation order, is symmetrical to section 16 [23], [41]. They are opposite sides of the same coin [46]. It is logical that, by the same token that a defendant cannot require his after acquired assets to be ignored in the determination of his present ability to pay, nor should they be ignored in deciding whether he can pay an additional amount up to the point when he will have disgorged an amount equivalent to all the benefit which has accrued to him from drug trafficking [23]. By enacting section 16, Parliament decided to leave it open to the courts as a matter of discretion under section 16(4) to deprive a defendant of his criminal gains on an ongoing basis irrespective of precisely how and when he came by any increased wealth [29] [30], [47]. Accordingly, the section 16(2) certificate here was lawfully issued and the appeal is dismissed [31]. Lord Hope (with whom Lady Hale agrees) dissents from the outcome reached by the majority of the Court. The effect of reading section 16(2) so as to include legitimate after acquired assets could be to penalise a defendant for the efforts of his own enterprise and hard work after he is released from custody. To deprive Mr Peacock of the increase in the value of his assets legitimately accrued following his release from custody ought not, according to well established principles, to be assumed to have been what Parliament intended unless it provided for this in clear terms [59]. The general principle of construction, of universal application, is that a statute should not be held to take away property rights without compensation unless the intention to do so is expressed in terms which are clear and unambiguous [60]. Although there are no words that exclude after acquired property from the scope of section 16, the confiscatory nature of the exercise under that provision requires us to be satisfied that the inclusion of after acquired property within its scope was what Parliament really intended and to give the benefit of the doubt to the defendant if we are not [64], [71].
TN, MA and AA: (a) are Afghan nationals; (b) were smuggled into the UK as unaccompanied minors; (c) claimed asylum here; and, (d) had their accounts disbelieved and their claims rejected. TN travelled to the UK in August 2010 and was arrested on 8 September 2010. TNs agreed date of birth is 1 January 1994. MA arrived in the UK on 27 July 2009. He claimed to be 13 years old but was assessed to be 16 and given a notional birth date of 1 January 1993. AA arrived in the UK in mid 2011 and was, subsequently, arrested by the police. AAs accepted date of birth was 29 December 1995. They all claimed asylum on the asserted basis that if they returned to Afghanistan they would be in danger from the Taliban, the government and/or the police. When making these asylum decisions, the Respondent had to comply with the three EU Directives harmonising the asylum systems of the EU Member States: the Reception Directive (2003/9/EC), the Qualification Directive (2004/83/EC) and the Procedures Directive (2005/85/EC). Article 19.3 of the Reception Directive requires Member States to endeavour to trace the members of [the unaccompanied minors] family as soon as possible. The Respondent failed to do this in making the decision to reject the Appellants asylum claims. Article 39 of the Procedures Directive requires Member States to ensure that applicants for asylum have the right to an effective remedy before a court or a tribunal against a decision taken on their application for asylum. Sections 82 and 83 of the Nationality, Immigration and Asylum Act 2002 (NIAA) (as in force at the material time) allow an appeal of an asylum rejection only in certain circumstances. The relevant circumstances are where the applicant no longer has leave to enter and remain in the UK, where a decision to remove the applicant has been made, or where the applicant has been granted leave to enter or remain in the UK for over one year. Otherwise, the decision can only be judicially reviewed. In accordance with the Respondents published policy, TN, MA and AA were granted discretionary leave to enter and remain in the UK until the age of 17 years and six months. As TN and MA were aged over 16 years and six months when their asylum applications were rejected, they could not appeal their asylum decisions (although they could: (a) judicially review it; and/or, (b) appeal the length of their discretionary leave) as they did not fall within the section 82 and 83 NIAA circumstances. They could only appeal the asylum rejection when a decision to remove them had been taken at the end of their discretionary leave at which point they would be unable to rely on their age as a ground for claiming refugee status. TN and MA appealed the length of their discretionary leave and judicially reviewed their exclusion from an appeal until their removal, arguing this violated their rights to an effective remedy under article 39 of the Procedures Directive. TNs appeal as to the length of discretionary leave was allowed by the Upper Tribunal but the Court of Appeal dismissed the other appeals. AA appealed pursuant to section 83 NIAA. Along with TN and MA, he argued that the Respondents failure to carry out her tracing duty vitiated her decision to reject the asylum claims. Moreover, if the Respondent had complied with her tracing duty it would have produced evidence to support their accounts which the Respondent had disbelieved. The Court of Appeal also dismissed these appeals. The Supreme Court (with Lord Toulson giving its judgment) unanimously dismisses the appeals. Right to an effective remedy issue TNs and MAs right of appeal to the tribunal was not immediate but was still effective. The deferment was not for long and there were understandable reasons for it. For example, where there is a surge of asylum applications following short term crisis conditions in a particular country it is not in the public interest, or the interest of the applicants, for tribunals to become clogged with cases which are due to be reviewed before long in any event [32]. Although it was argued that TN and MA would thereby be deprived of the ability to argue that they should be protected on the basis of the status as minors who were effectively orphans, when it comes to the kinds of risk including forcible recruitment and sexual exploitation persecution is not respectful of birthdays. In any event, any entitlement to refugee status on the basis of age would be time limited in the same way to correspond with the attendant risk [33]. As a result, it is not necessary to consider whether judicial review provides an effective remedy [34]. Tracing issue The principle established in the case of Ravichandran is sound; asylum appeals should be determined by reference to the situation at the time of the appellate decision rather than by reference to the situation at the time of the original decision [70]. The exception to this established in the case of Rashid that an abuse of power by the state enables the court to intervene to give appropriate relief to compensate a past breach of duty even if the asylum applicant is presently no longer in need of protection lacks a satisfactory principle, is unclear and should no longer be followed [71 72]. In deciding whether to accept an applicants account, the tribunal must act on the evidence before it with no presumption of credibility. The fact that the Respondent fails properly to discharge her tracing obligation does not affect this [72 73]. Given that MAs and AAs accounts were disbelieved by the Upper Tribunal, their appeals should not have been allowed merely by reason of the Respondents breach of her tracing obligation [74]. The purpose of tracing a childs family is for the childs welfare in promoting reunification, not for the purpose of gathering evidence, although it may lead to that result. The child should be consulted about tracing before any steps are taken [69]. Neither MA nor AA gave any information from which their family could be traced and the conclusion that their accounts lacked credibility was properly open to the Upper Tribunal. In relation to TNs discretionary leave application, the Respondent can now re take her decision pursuant to these principles [74].
On 29 January 2009, the chemical carrier mv LONGCHAMP (the vessel) was transiting the Gulf of Aden. Pirates boarded the vessel and ordered its course to be altered towards the Bay of Eyl, Somalia. After seven weeks of negotiations, the crisis management team formed by the vessels owners (the Appellants) agreed a ransom in the amount of US $1.85m (the initial demand had been for US$6m). The cargo on the vessel was carried by the cargo interests (the Respondents) under a bill of lading which stated on its face that General Average, if any, shall be settled in accordance with the York Antwerp Rules 1974 (the Rules). General Average refers to the system of maritime law by which sacrifices of property made, and loss and expenditure incurred, as a direct result of actions taken for preserving a common maritime adventure from peril, are rateably shared between all those whose property is at risk. The Rules are internationally agreed and derive legal force through contractual incorporation. They aim to achieve uniformity in ascertaining whether losses fall within the principle of general average, the method of calculating those losses and deciding how they are to be shared. The essential issue in this appeal was whether the vessel operating expenses incurred during the period of negotiation (the negotiation period expenses) were allowable in general average under Rule F of the Rules which provides that any extra expense incurred in place of another expense which would have been allowable as general average shall be deemed to be general average and so allowed without regard to the saving, if any, to other interests, but only up to the amount of the general average expense avoided. An adjudicator found that the negotiation period expenses fell within Rule F. The Respondents challenge to the adjudicators decision was dismissed in the Commercial Court. The Court of Appeal allowed the Respondents subsequent appeal. The Appeal is allowed. Lord Neuberger gives the lead judgment with which Lord Clarke, Lord Sumption and Lord Hodge agree. Lord Sumption gives a concurring judgment. Lord Mance dissents on the facts. The Appellants submitted that the negotiation period expenses fell within the expression expense incurred by the owners within Rule F and those expenses were incurred in place of another expense (i.e. the $4.15m saved as a result of the negotiations with the pirates). Further, the negotiation period expenses were less than the general average expense avoided and it thereby followed that they were properly allowable under Rule F [14]. The Court found that the Judge and Court of Appeal incorrectly assumed that the owners had to establish that it would have been reasonable to accept the pirates initial demand in order to justify the contention that the negotiation period expenses were allowable under Rule F. Such an assumption would lead to very odd results. It would mean that, if a ship owner incurs an expense to avoid paying a reasonable sum, he can in principle recover under Rule F, whereas if he incurs expense to avoid paying an unreasonable sum (i.e. a larger sum), he cannot recover [18]. Further, the reference in Rule F to another expense which would have been allowable as general average does not mean an expense whose quantum is such that it would have qualified as a claim under Rule A of the Rules (which refers to extraordinary sacrifice or expenditure) [19]. Therefore, subject to the Respondents other arguments, the negotiation period expenses fell under Rule F as they were incurred to avoid paying $6m [20]. The Respondents submitted that the negotiation period expenses did not fall within Rule F because the payment of reduced ransom of $1.85m was not an alternative course of action to the payment of the ransom originally demanded but was merely a variant [22]. The Court found that the incurring of the negotiation period expenses did represent an alternative course of action from the payment of the $4.15m (the amount by which the ransom was reduced). The former involved incurring vessel operating expenses and the latter involved paying a ransom [26]. To imply some qualification such as the requirement that the negotiation period expenses must be incurred so as to achieve an alternative course of action was very dangerous [29]. The Rules are an international arrangement and should be interpreted in the same way as an international convention or treaty, unconstrained by technical rules of English law or by English legal precedent, on broadly accepted general principles [29]. The Respondents raised four further points. Firstly, they contended that the Appellants could not recover under Rule F as they had never made a conscious and intentional choice between paying the $6m ransom initially demanded or negotiating [33]. The Court held that the question of whether one expense has been incurred in the place of another expense must be assessed objectively [34]. Secondly, the Respondents contended that the negotiation period expenses were not extra expenses within the meaning of Rule F. The Court found that there was no reason for restrictively interpreting the word extra so as to require an expense to be of a nature which would not normally have been incurred in response to the peril threatening the adventure [35]. Thirdly, the Respondents contended that the negotiation period expenses may have been incurred even if the owners had agreed to the pirates initial demand. However, the Judge considered that it was more likely than not that the vessel would have been released promptly if the $6m demand had been accepted. It was not appropriate for the Supreme Court to interfere with this finding of the Judge [36]. Finally, the Respondents contended that because Rule C of the Rules excludes indirect loss from general average expenditure and/or because Rule IX includes crew wages and maintenance where it applies, the claim in the present case must fail. The Court held that even though negotiation period expenses fall within Rule C it does not follow that they fall outside Rule F. By definition, sums recoverable under Rule F are not themselves allowable in general average, but are alternatives to sums which would be allowable [37]. Further, in terms of Rule IX, the Court did not agree that because vessel operating expenses were specifically allowed in one type of case that it should be presumed that they are excluded from every other type of case [38]. Both the lead judgment by Lord Neuberger [25] and the concurring judgment by Lord Sumption [42] observed that a variety of practices have been developed by practitioners in relation to the Rules but that the law cannot be determined by reference to these practices. In his dissenting judgment [45 68], Lord Mance concluded that whilst the Appellants had established that Rule F is in principle capable of applying to negotiation period expenses, they had not established on the only factual basis on which their case had been put that they had a claim under Rule F [68].
The question on this appeal was whether the appellant, Mr Anson, was entitled to double taxation relief on income he remitted to the UK from the US. This depends on the interpretation of article 23(2)(a) of the UK/US Double Taxation Convention 1975 and its successor, article 24(4)(a) of the UK/US Double Taxation Convention 2001. The relevant question under both provisions is whether the UK tax is computed by reference to the same profits or income by reference to which the United States tax is computed. The relevant period was the seven UK tax years running from 6 April 1997 to 5 April 2004, during which Mr Anson was a member of a Delaware limited liability company (the LLC), classified as a partnership for US tax purposes. As such, Mr Anson was liable to US federal and state taxes on his share of the profits. Mr Anson remitted the balance to the UK and was liable to UK income tax on the amounts remitted, as income arising from possessions outside the UK, subject to any double taxation relief which might be available. The respondents, the Commissioners, decided that he was not entitled to any double taxation relief on the basis that the income that had been taxed in the US was not Mr Ansons income, but that of the LLC. On Mr Ansons appeal, the First tier Tribunal (FTT) found that the combined effect of the Delaware LLC Act (the LLC Act) and the LLC agreement made between the members was that profits of the LLC belong to the members as they arise. It concluded that Mr Anson was taxed on the same income in both countries, so he was entitled to double taxation relief. The Upper Tribunal allowed the Commissioners appeal. The Court of Appeal dismissed Mr Ansons appeal. The Supreme Court unanimously allows Mr Ansons appeal. Lord Reed gives the leading judgment, with which Lord Neuberger, Lord Clarke, Lord Sumption and Lord Carnwath agree. The Upper Tribunal construed the FTTs finding that the profits belonged to the members as they arose as a legally erroneous finding that the profits vested in the members as their property. It was however clear from the FTTs decision that it based its conclusion that the profits belong as they arise to the members not upon a confusion between profits and assets, but upon expert evidence as to the combined effect under Delaware law of the LLC Act and the LLC agreement. The natural reading of the FTTs decision is that when it described the profits as belonging to the members it was referring to a personal right rather than a proprietary right. This is consistent with Mr Ansons expert evidence and with the comparison that the FTT made between the LLC and a Scottish partnership. [38 40] The Court of Appeal focused on whether Mr Anson had a proprietary right to the profits of the LLC as they arose, rather than addressing whether the income taxed in one country is the same as the income taxed in another. The Court of Appeal also accepted the Commissioners submission that the FTTs finding that the profits belonged to the members as they arose was a holding on UK domestic tax law, with which the Upper Tribunal was entitled to interfere. However, questions about whether the members had a right to the profits, and if so, what is the nature of that right, were questions of non tax law, governed by Delaware law. The FTTs conclusion on them was a finding of fact. Domestic tax law then fell to be applied to the facts as so found. [47 51] The Court of Appeal was also diverted by its consideration of the case of Memec plc v Commissioners of Inland Revenue [1998] STC 754, which was concerned with article 23(2)(b) of the 1975 Convention, not article 23(2)(a). [43, 50, 101 109] If the words used in article 23(2)(a) are given their ordinary meaning, it is necessary to identify the profits or income by reference to which the taxpayers UK tax liability is computed, primarily a question of UK tax law. Next one must identify the profits or income from sources within the US on which US tax was payable under the laws of the US and in accordance with the Convention. That is primarily a question of US tax law. Then it is necessary to compare the profits or income in each case, and decides whether they are the same. [113] While Mr Anson maintains that his income arises as profits are earned by the LLC, so that the income liable to tax is his share of the profits regardless of whether they are distributed, the Commissioners position is that his income arises only when profits are distributed by the LLC, so that the income liable to tax is the distributions. The premise of the Commissioners submissions is that, because the business of the LLC is carried on by the LLC, it follows that the profits generated by the business belong to the LLC. This argument is contradicted by the FTTs finding that the members of the LLC have an interest in the profits of the LLC as they arise. The FTT was entitled to make that finding. Therefore, Mr Anson was entitled to the share of the profits allocated to him, rather than receiving a transfer of profits previously vested (in some sense) in the LLC. It follows that his income arising in the US was his share of the profits. That is the income liable to tax under UK law, to the extent that it is remitted to the UK. Mr Ansons liability to UK tax is therefore computed by reference to the same income as was taxed in the US. Accordingly he qualifies for double taxation relief under article 23(2)(a). [115 121] The Court dismisses an alternative ground focused on a provision in article 23(2)(a) relating to the treatment of dividends. The history of that provision makes clear that the treatment of dividends reflects changes necessitated by the UKs adoption of corporation tax; nothing in the context suggests they were intended to have any wider implication. [60 96]
The appellant is an English qualified solicitor. In February 2010, she became a member of Clyde & Co Limited Liability Partnership (LLP). She signed a Deed of Adherence to the LLPs Members Agreement. The other parties to the Deed were the LLP and each of the Members individually. In November 2010, the appellant reported to the LLPs money laundering reporting officers that the managing partner of the Tanzanian law firm, with whom the LLP were doing business, had admitted paying bribes to secure work and to secure the outcome of cases. She claims that these were protected disclosures within the meaning of section 43A of the 1996 Employment Rights Act (the 1996 Act). She also claims that she was subject to a number of detriments as a result, including suspending her and ultimately expelling her from the LLP in January 2011. These claims are denied by the LLP and have not yet been tried. In February 2011, the appellant brought claims in the Employment Tribunal against the LLP and one of its Senior Equity Members under the whistle blowing provisions of the 1996 Act. The respondents objected to her whistle blowing claim on the ground that she was not a worker within the meaning of section 230(3) of the 1996 Act and, as such, does not benefit from the protection given to whistle blowers. There are two definitions of worker for the purpose of that Act. Limb (a), not relevant to this case, covers an individual who has entered into, works under, or has worked under a contract of employment and Limb (b) of section 230(3) covers an individual who has entered into or works under or worked under any other contractwhereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer. The main question in this appeal is whether a member of a LLP can be a worker within the meaning of section 230(3)(b) of the Employment Rights Act 1996? The Employment Tribunal found that she was not a worker. The Employment Appeal Tribunal held that she was a worker. The LLPs appeal to the Court of Appeal was successful, but on a completely different ground from those argued in the Tribunals. The Court of Appeal, cited section 4(4) of the Limited Liability Partnership Act 2000 (the 2000 Act), which states that a member of a limited liability partnership shall not be regardedas employed by the [LLP] unless, if he and the other members were partners in a partnership, he would be regarded for that purpose as employed by the partnership. The Court of Appeal held that the phrase employed by included limb (b) contracts and, thus, the appellant was not a worker. The Supreme Court unanimously allows the appeal and holds that the appellant is a worker within the meaning of the 1996 Act. As such, she is entitled to claim the protection of its whistle blowing provisions. Lady Hale gives the lead judgment. The Court finds that there is no need to give such a strained construction to section 4(4). It is saying that, whatever the position would be if the LLP members were partners in a traditional partnership, then that position is the same in an LLP. The Court holds that that is how section 4(4) is to be construed [21]. The phrase employed by in section 4(4) covers a person employed under a contract of service [22]. The Court holds, however, that it does not also cover those who undertake to do or perform personally any work or services for another party to the contract. Section 4(4) of the 2000 Act does not mean that members of an LLP can only be workers within the meaning of section 230(3) of the 1996 Act if they would also have been workers had the members of the LLP been partners in a traditional partnership [23 28]. Next the Court considers the analysis of the Court of Appeal that underlying the statutory definition of worker is the notion that one party has to be in a subordinate relationship to the other. The Court of Appeal suggested that a member of a LLP would not by virtue of that status alone constitute either an employee or a worker. If by this, the Court of Appeal meant that those members who undertake personally to work for the LLP cannot be workers, then this Court does not agree. While subordination may sometimes be an aid to distinguishing workers from other self employed people, it is not a freestanding and universal characteristic of being a worker [30 40]. As the appellant has protection under the 1996 Act as interpreted in a conventional way, the Court does not find it necessary to decide whether her convention rights would require and permit it to interpret the Act compatibly [41 45]. In a concurring judgment, Lord Clarke agrees with Lady Hale that by the terms of the appellants contract with the respondent LLP, she undertook to perform personally certain work or services for it and her status was not by virtue of the contract that of a client or customer [47]. Lord Clarke adds that, in his opinion, the effect of the relevant provisions of the 1996 Act and the 2000 Act, read together, is that a person who is a limb (b) worker within section 230(3) is a person regarded for any purpose as employed by the LLP within the 2000 Act [49 54]. In a concurring judgment, Lord Carnwath emphasises that, in his view, the conclusion in this case turns on the special characteristics of a LLP, which is something of a hybrid as between a conventional 1890 Act partnership and a limited company. It does not necessarily have any direct relevance to the resolution of equivalent issues in relation to other forms of partnership, under English or Scottish law [55 59]. The main judgment leaves open the question of what the position would be in a traditional partnership.
The two appellants, Ms McCool and Mr Harkin, were at all material times married to one another. They were both convicted of a series of offences of making dishonest claims for state benefits by pretending that they were single people when they were not and, in the case of Mr Harkin, by claiming housing benefit for a house when he was living with Ms McCool at a different house. The Proceeds of Crime Act 2002 (the 2002 Act) came into force on 24 March 2003 (the commencement date). Section 156 of the 2002 Act provides for the making of orders to confiscate benefits obtained by criminal activity (confiscation orders). All of the offences in the present appeal, except one in each case, were committed after the coming into force of the 2002 Act. There are stipulations in the the commencement, transitional and savings provisions of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendments) Order 2003 (the Commencement Order) which set out when the 2002 Act applies. The issue is whether, given these stipulations, a confiscation order under section 156 of the 2002 Act could be made by a Crown Court if the Crown disclaims reliance on any pre commencement offence for the purpose of the order. The Supreme Court by a majority of three to two (Lord Reed and Lord Mance dissenting) dismisses the appeal. Lord Kerr gives the main judgment. Lord Hughes gives a concurring judgment with which Lady Black agrees. Lord Reed gives the dissenting judgment, with which Lord Mance agrees. The appellants argue that the wording of the Commencement Order is such that where a defendant is committed for a number of offences, where any of the offences has been committed before the commencement date, then none of the offences can be dealt with under the 2002 Act. Lord Kerr observes that his would produce an anomalous result the appellants are effectively submitting that the jurisdiction of the court to make confiscation orders under the 2002 Act could be controlled by tactical decisions by the prosecution to not proceed with charging offences committed before the commencement date [11 12]. The overarching consideration is that it was Parliaments intention that (i) offences committed before the commencement date should not be included in the section 156 consideration; and (ii) offences committed after that date which could generate confiscation orders under the Act should be dealt with under section 156. It cannot have been intended that a number of post 2003 offences should be removed from the scope of the 2002 Act simply because the defendant was convicted of an associated offence before the commencement date [17]. Further, the court should seek to avoid an interpretation of the statute which would produce an absurd result. Here, the consequence of the 2002 Act being disapplied to a wide range of offences committed after the commencement date and requiring them to be dealt with under earlier legislation is undesirable. Contemporary cases would have to be dealt with according to standards and rules which have been replaced [24 26]. It is not necessary to read words into the statute in order to permit applications for confiscation orders for offences committed after the commencement date [38]. Lord Hughes agrees with Lord Kerr that it is not necessary to read words into the statute to achieve this result [68]. The issue depends on whether the offences referred to in section 156(2) are all offences or only those on which reliance is placed for the purposes of asking the court to make a confiscation order. He considers the differences between the earlier legislation and the 2002 Act and concludes that the key question is whether the construction proposed by the Crown would result in any unfairness to the defendants. If it would or might, then the principle that penal statutes must be construed strictly in favour of those penalised would carry considerable weight. There is nothing unfair in saying that the appellants should bear the confiscation consequences of post March 2003 offences, as required by the 2002 Act, unless those consequences differ in some way from what they would have been if they had not committed the earlier offences, which they do not [70 83]. There is no unfairness caused by any of the differences between the earlier regime and the regime under the 2002 Act where the 2002 Act regime is applied only to post commencement offences, because the rules which are being applied are those which were in force, and publicly known, at the time the offences generating the confiscation order were committed [93 94]. It is not improper for there to be an element of election by the Crown in relation to which offences are relied on for the confiscation process [97]. Although the question of the Court of Appeals power to put an error right by substituting an order did not arise given the conclusion, Lord Hughes notes that it ought not to be assumed that there is no such power [108 114]. Lord Kerr agrees with this analysis [55]. Lord Reed dissents from the conclusion of the majority and would have allowed the appeal. His view is that the language of the provisions cannot be interpreted as excluding offences which the prosecution had elected to leave out of account for the purpose of assessing the benefit obtained by the defendant [128].
This appeal arises from the fact that the foundation structures of two offshore wind farms at Robin Rigg in the Solway Firth, which were designed and installed by the respondent, MT Hjgaard A/S (MTH), failed shortly after completion of the project. The dispute concerns who bears the remedial costs in the sum of 26.25m. In May 2006, the appellants, two companies in the E.ON group (E.ON), sent tender documents to various parties including MTH, who in due course became the successful bidders. The tender documents included E.ONs Technical Requirements. The Technical Requirements laid out minimum requirements that were to be taken into account by the contractor, i.e. ultimately MTH. Amongst other things, the Technical Requirements called for the foundations to be in accordance with a document known as J101. J101 was a reference to an international standard for the design of offshore wind turbines published by an independent classification and certification agency. J101 provides for certain mathematical formulae to calculate aspects of the foundation structures. One such formula included , which was given a specific value. Only later, a review showed that the value given for was wrong by a factor of about ten. This error meant that the strength of the foundation structures had been substantially over estimated. Having been selected as the contractor for the works, MTH duly set about preparing its tender in accordance with E.ONs requirements and J101. Finally, E.ON and MTH entered into a contract under which MTH agreed to design, fabricate and install the foundations for the proposed turbines. Clause 8.1(x) of this contract stated that MTH should carry out the works so that they shall be fit for its purpose. Fit for Purpose was ultimately defined in a way that it included adherence to the Technical Requirements. The parties agreed to carry out remedial work immediately after the foundation structures started failing. These proceedings concern the question as to who should bear the cost of the remedial works. The High Court found for E.ON that Clause 8.1(x) of the contract ultimately referred to the Technical Requirements. Para 3.2.2.2 of the Technical Requirements and another provision, para 3b.5.1, required the foundations to be designed so that they would have a lifetime of twenty years. As they were not, MTH was held liable. On appeal, the Court of Appeal found otherwise. There was an inconsistency between paras 3.2.2.2 (and para 3b.5.1) of the Technical Requirements on the one hand and other contractual provisions (in particular adherence to J101) on the other hand. The Court of Appeal ruled that the other contractual provisions should prevail. The Supreme Court unanimously allows E.ONs appeal. Lord Neuberger gives the judgment, with which Lord Mance, Lord Clarke, Lord Sumption, and Lord Hodge agree. The central issue in this appeal is whether para 3.2.2.2 (and para 3b.5.1) of the Technical Requirements was infringed [27, 33]. The second limb of para 3.2.2.2 reads: The design of the foundations shall ensure a lifetime of twenty years in every aspect without planned replacement. Taking into account other aspects of the Technical Requirements, this can be read in two ways: either as a warranty that the foundations will actually have a lifetime for twenty years, or as an undertaking to provide a design that can objectively be expected to have a lifetime of twenty years. Although there is some force in the latter argument, especially in the contracts (exclusive) remedies regime [27 32], the question does not warrant an answer in this appeal. The foundations neither had a lifetime of twenty years, nor was their design fit to ensure one [24 32]. Therefore, the effect of para 3.2.2.2 according to its terms would be to render MTH liable. The reference to J101, the international design standard, which included the flawed value attributed to , does not require a different construction which would deviate from the natural language of para 3.2.2.2. Both J101 and para 3.2.2.2. are part of the same contract. The reconciliation of various terms in a contract, and the determination of their combined effect must be decided by reference to ordinary principles of contractual interpretation [37, 48]. While each case must turn on its own facts, the courts are generally inclined to give full effect to the requirement that the item as produced complies with the prescribed criteria, even if the customer or employer has specified or approved the design. Thus, generally speaking, the contractor is expected to take the risk if he agreed to work to a design which would render the item incapable of meeting the criteria to which he has agreed [38 44]. The Technical Requirements expressly prescribe only a minimum standard. It was the contractor, i.e. MTHs, responsibility to identify areas where the works needed to be designed in a more rigorous way (para 3.1.(1)). Further, it was contemplated that MTH might go beyond certain standards, including J101 (para 3.1.2) [45 47]. Finally, para 3.2.2.2 of the Technical Requirements is not too weak a basis on which to rest a contention that MTH had a liability to warrant that the foundations would survive for twenty years or would be designed so as to achieve twenty years of lifetime. Applying the ordinary principles of interpretation, in a complex contract, this interpretation gives way to the natural meaning of para 3.2.2.2 and is not improbable or unbusinesslike [48 51].
Section 29(1) of the Scotland Act 1998 (the Scotland Act) provides that any Act passed by the Scottish Parliament will not be law so far as any provision of the Act is outside the legislative competence of the Parliament. Section 29(2) says that a provision is outside of the legislative competence of the Scottish Parliament if, amongst other things: it relates to matters which are reserved to the UK Parliament (including international relations); is in breach of the restrictions in Schedule 4 of the Scotland Act (which specifies provisions of enactments passed by the UK Parliament which cannot be modified by the Scottish Parliament); or is incompatible with European Union (EU) law. On 29 March 2019, the UK is due to withdraw from the EU. On 13 July 2017, the UK Government introduced the European Union (Withdrawal) Bill (the UK Bill) in the House of Commons, to repeal the statute which had taken the UK into the EU and to make provisions to achieve legal continuity within each of the UKs constituent jurisdictions. On 26 June 2018, the UK Bill became an Act (the UK Withdrawal Act). The UK Withdrawal Act amended Schedule 4 to the Scotland Act to include itself within the prohibition against modification. On 27 February 2018, the Scottish Government introduced the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (the Scottish Bill), to make its own provision for legal continuity following the UKs withdrawal from the EU. The Scottish Bill was passed by the Scottish Parliament on 21 March 2018. Section 17 of the Scottish Bill relates to subordinate legislation made by Ministers in the UK Government after withdrawal from the EU on matters of retained EU law which, if they were contained in a statute, would be within the legislative competence of the Scottish Parliament. The section provides that any such subordinate legislation will be of no effect unless the consent of the Scottish Ministers is obtained. Section 33 of and Schedule 1 to the Scottish Bill provide for the repeal of references to EU law and institutions of the EU in the Scotland Act. In accordance with section 33(1) of the Scotland Act, the Attorney General and the Advocate General for Scotland made a reference to the UK Supreme Court asking for a decision on whether the Scottish Bill is within the competence of the Scottish Parliament. The Supreme Court gives a unanimous judgment. It finds that the whole of the Scottish Bill would not be outside the legislative competence of the Scottish Parliament. However, section 17 would be outside the legislative competence of the Parliament because it would modify the Scotland Act and, at least in part, the sections referred to in the final paragraph below would be outside the competence of the Scottish Parliament because they would modify provisions of the UK Withdrawal Act. It is not for this Court to express any view on the question of which institutions of the UK should exercise the legislative powers currently held by EU institutions upon the UKs withdrawal. Instead, the role of the Court is to determine as a matter of law whether, and to what extent, the Scottish Bill would be within the legislative competence of the Scottish Parliament [11]. Is the Scottish Bill as a whole outside the legislative competence of the Scottish Parliament? The only relevant question is whether the Scottish Bill relates to relations with the EU (a reserved matter) [26]. To relate to a reserved matter, a provision must have more than a loose or consequential connection with it [27]. The Scottish Bill does not relate to relations with the EU. It simply regulates certain of the legal consequences of the cessation of EU law as a source of domestic law [33]. Is section 17 of the Scottish Bill outside the legislative competence of the Scottish Parliament? Under Schedule 4 to the Scotland Act, the Scottish Parliament does not have legislative competence to modify the Scotland Act [42]. An enactment is modified by a later enactment if it is implicitly amended, disapplied or repealed in whole or in part [51]. The UK Parliament has the power to authorise Ministers to make subordinate legislation, but the effect of section 17 would be to make the legal effect of such subordinate legislation conditional upon the consent of the Scottish Ministers. The imposition of this condition would be inconsistent with the recognition in section 28(7) of the Scotland Act that the UK Parliament has unqualified legislative power in Scotland. It would therefore have to be treated as impliedly amending (and thus modifying) section 28(7) of the Scotland Act [52]. Are section 33 of and Schedule 1 to the Scottish Bill outside the legislative competence of the Scottish Parliament? There is an exception to the rule that the Scottish Parliament does not have legislative competence to modify the Scotland Act, which allows the Parliament to repeal any enactment which is spent [69]. Spent means that the provision has no continuing legal effect [72]. The provisions which section 33 and Schedule 1 would repeal will not be spent until the UKs withdrawal from the EU [76]. However, the Scottish Ministers do not have power to bring section 33 into force until the UK has withdrawn, at which point the provisions to be repealed would have become spent [77]. As a result, section 33(1) and Schedule 1 do not breach Schedule 4 to the Scotland Act [79]. Are various provisions of the Scottish Bill outside the legislative competence of the Scottish Parliament because they (i) are incompatible with EU law, (ii) modify section 2(1) of the European Communities Act 1972 (ECA), and/or (iii) are contrary to the rule of law? None of the provisions which are challenged take legal effect until the provisions of EU law with which they are incompatible have ceased to have effect as a consequence of the UKs withdrawal from the EU. Without such legal effect, there is no incompatibility with EU law and no modification of section 2(1) of the ECA [84 85]. The challenge based on the rule of law is misconceived [86]. Can the Supreme Court consider the effect of the UK Withdrawal Act in the context of this reference? Yes, because the Courts task is to decide whether the Bill would be within the legislative competence of the Scottish Parliament if it received the Royal Assent at the time of the Courts decision [97]. What is the effect of the UK Withdrawal Act on the legislative competence of the Scottish Parliament in relation to the Scottish Bill? The UK Withdrawal Act is not a reserved matter but it is protected against modification under Schedule 4 [99]. Several provisions of the Scottish Bill in whole or in part amount to modifications of the UK Withdrawal Act. These are: section 2(2) [101]; section 5 [102]; section 7(2)(b) and 7(3) [103 104]; section 8(2) [105]; section 9A [106]; section 9B [107]; section 10(2), 10(3)(a) and 10(4)(a) [108 110]; section 11 [111 113]; section 13B, section 14, section 14A, section 15, section 16, section 19(1) and section 22 (to the extent that these provisions relate to section 11) [114 118, 120 121]; section 26A(6) [122]; and section 33 and Schedule 1 paragraphs 11(a) and 16 [123 124].
This appeal concerns the question whether the power to create criminal offences granted to Her Majestys government by section 1 of the United Nations Act 1946 (the 1946 Act) may only lawfully be exercised at or about the time of the relevant resolution by the Security Council of the United Nations which such order is implementing. At the time of the hearing of this appeal, the appellants, Forsyth and Mabey, were awaiting criminal trial on a number of charges, of which one is an offence of making funds available to Iraq contrary to the Articles 3(a) and 11(4) of the Iraq (United Nations Sanctions) Order 2000 (the Order). As a preliminary issue prior to the trial, the appellants sought to establish that the Order creating the offence of making funds available to Iraq was ultra vires section 1 of the 1946 Act. Section 1 grants power to the government to implement resolutions of the Security Council by an executive order without any parliamentary process. The appellants argument was that such a wide executive power could be justified only if the resolutions of the Security Council were implemented urgently and the power, therefore, must be construed as subject to its being exercised within a very short timescale. In essence, the appellants maintained that unless the power to make an order under the 1946 Act is exercised at or about the same time as the relevant Security Council resolution, that power is lost by the passage of time. The Order in question was made 10 years after the relevant resolution. The appellants lost both in the Crown Court and the Court of Appeal. The matter came before this court on 6 December 2010 when, at the outset of the hearing, the appellants were granted permission to appeal; at the conclusion of the hearing the appeal was dismissed for reasons to be given later. The present judgment contains those reasons. Lord Brown delivered the judgment of the court which held that the power conferred on the government by section 1 of the 1946 Act cannot be restricted by confining its exercise within an artificially restricted timeframe. The suggested analogy between the case of A v HM Treasury which was concerned with proper limits of the content of orders made pursuant to section 1 of the 1946 Act and the present appeal seeking to impose limits upon the time within which the power is properly exercisable is false: [9]. Unlike the case of A, where Hansard needed to be examined to confirm the absence of parliamentary intention to permit fundamental human rights to be overridden, there is no good reason to look behind the actual words of the 1946 Act in this case, and indeed a real risk of breaching parliamentary privilege if one does. Had Parliament intended to confine the order making power to urgent use, one would have expected it to be clearly provided for in the 1946 Act: [10] [11]. Instead, the 1946 Act is entirely silent on the question and indeed provides for a power to vary the existing order without placing any time limitations upon this power of variation: [12]. The history of how the Order in the present case came to be made so long after the UN resolution it was implementing confirms that it would be inappropriate to limit the exercise of the power conferred by the 1946 Act within a restricted timeframe by demonstrating that Security Council resolutions are not simply one off measures requiring immediate implementation by member states which then recede into history: [18].
The respondent was born in the United Kingdom. He had lived in Taiwan for about 19 years when he was involved in road traffic accident there which killed a man in 2010. He was convicted by the District Court of Taipei of driving under the influence of alcohol, negligent manslaughter and leaving the scene of an accident. He was sentenced to four years imprisonment. While his appeal was pending, he fled Taiwan and came to Scotland. In his absence his conviction was confirmed and the Taiwanese authorities applied for his extradition. The Ministry of Justice of Taiwan obtained a provisional arrest warrant for the respondent under the Extradition Act 2003 (the 2003 Act). The respondent was arrested in Scotland on 17 October 2013 and remained in custody for almost three years. An extradition hearing commenced in January 2014, following which the sheriff decided that the respondents extradition would be compatible with his Convention rights and refused the respondents devolution minutes. The Scottish Ministers made an extradition order on 1 August 2014. The respondent appealed against the sheriffs decision and against the extradition order of the Scottish Ministers. The Appeal Court of the High Court of Justiciary (the Appeal Court), ordered an evidential hearing to determine whether prison conditions in Taiwan were such that to extradite the respondent would breach his right under article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) not to be subjected to torture or to inhuman or degrading treatment or punishment. It reserved its opinion on the extradition order appeal until it had dealt with the article 3 challenge. The Appeal Court, by majority, found that even if the written assurances given by the Taiwanese authorities to the Lord Advocate in respect of the conditions in which the respondent would be held were fulfilled, a real risk of ill treatment would remain and thus the respondents extradition to Taiwan would be incompatible with article 3 ECHR. The Lord Advocate appeals the judgment of the Appeal Court, on the ground that it had not applied the correct legal test in assessing the risk of harm which the respondent might face in Taiwan from non state actors. The respondent raises a separate issue: whether the Appeal Court determined a devolution issue and, therefore, whether the Supreme Court has jurisdiction to hear the Lord Advocates appeal. The respondent also advanced challenges under articles 5 and 8 ECHR. The Supreme Court unanimously rejects the respondents challenge to the competency of the appeal and allows the Lord Advocates appeal on the devolution issue. The Court remits the case to the Appeal Court to deal with the respondents appeal against the extradition order of the Scottish Ministers and his devolution minute in that appeal. Lord Hodge gives the judgment, with which the other Justices agree. The competency of the appeal to the Supreme Court The challenge to the competency of the appeal is misconceived [14]. An appeal from the sheriffs decision under section 87(1) of the 2003 Act as to whether extradition would be compatible with the respondents Convention rights raises a question of the legal competence of the Scottish Government [15]. Schedule 6 to the Scotland Act 1998 paragraph 1(d) includes within the definition of a devolution issue a question whether a [] proposed exercise of a function of the Scottish Executive [] would be, incompatible with any of the Convention rights [18]. Therefore, the question whether the Scottish Governments acts in seeking to extradite the respondent are compatible with Convention rights is a devolution issue which was determined by the Appeal Court [19, 22]. Neither party to the appeal intimated the devolution issue to the Advocate General for Scotland thus depriving him of his right to take part in the Appeal Court proceedings. That omission, however, does not affect the competence of any appeal of the determination of the devolution issue to this court [21]. The correct legal test The Appeal Court, in assessing the compatibility of the extradition with article 3 ECHR, applied the wrong legal test [9]. The correct legal test when the threat comes from the acts of third parties is whether the state has failed to provide reasonable protection against harm inflicted by non state agents. The Appeal Court did not address that test and no clear distinction was drawn between the threat from other prisoners, and the conduct for which the state was responsible. The court must assess, first, whether the Taiwanese authorities are undertaking to provide the respondent with reasonable protection against violence by third parties while in prison, and, secondly, if they are, whether the conditions in which he is to have such protection would infringe article 3 [24]. There is no evidence that the Taiwanese authorities will not give the respondent reasonable protection against harm at the hands of other prisoners: the undertakings would allow him to elect to remain in his cell and exercise outdoors alone [39]. As to whether the confinement which such a regime would entail would risk a breach of article 3, the relative isolation which the respondent may elect for his own protection does not come close to a breach of article 3. Further, the other factors which influenced the majority of the Appeal Court, including the ratio of medical staff to prisoners and the monitoring of the assurances by UK consular staff, do not outweigh the other factors which point towards accepting the assurances [40 47]. The assurances offer the respondent reasonable protection against violence by non state actors and the circumstances of his confinement, should he be unable to mix with the wider prison population, do not entail a real risk of his being subject to treatment that infringes article 3 [48]. Article 5 and Article 8 The article 5 and article 8 challenges are without substance [49]. There is nothing arbitrary for the purposes of article 5 in the respondent serving two thirds of the remainder of his sentence in Taiwan before he would be eligible for parole. The respondents inability to obtain credit toward parole in Taiwan for the time spent in custody in Scotland is the result of his flight from justice in Taiwan. This involves no injustice [50]. The interference with the respondents article 8 right to private life which arises from his extradition and imprisonment in Taiwan is justified because it is necessary for both the prevention of crime and for the protection of the rights and freedoms of others [51].
A fraudster, B, established four ghost websites falsely pretending to offer cut price motor insurance. In order to carry out this plan he recruited associates to open bank accounts for channelling the proceeds. H was one such associate. One website was named AM Insurance, which operated from 1 September 2011 to January 2012. Shortly before the website went live, H opened two bank accounts, one with Lloyds Bank and one with Barclays Bank. Subsequently, B took control of these accounts and the related bank cards. In total, members of the public were duped into paying 417,709 into the Lloyds account and 176,434 into the Barclays account for non existent insurance cover. B pleaded guilty to a number of offences. H stood trial at the Central Criminal Court charged with entering into or becoming concerned in an arrangement which he knew or suspected would facilitate the retention, use or control of criminal property, namely the money received into the accounts, by or on behalf of B, contrary to section 328(1) of the Proceeds of Crime Act 2002 (POCA). The trial judge upheld the submission that H had no case to answer, finding that at the time H entered into the arrangement no criminal property existed. The Court of Appeal dismissed the prosecutions appeal; although it was not necessary for criminal property to exist when B and H came to the prohibited arrangement, the arrangement must relate to property which was criminal property when the arrangement begun to operate on it. In this case, the money was not criminal property when the arrangement began to operate on it, in other words at the moment the money was paid into the accounts. The prosecution appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. Lord Toulson (with whom all the other Justices agree) delivers the judgment of the Court. Whether s 328 POCA requires property to constitute criminal property prior to the arrangement operating Criminal property in sections 327 329 of POCA refers to property which already has the quality of being criminal property (as defined in section 340 of POCA) by reason of prior criminal conduct distinct from the conduct alleged to constitute the commission of the money laundering offence itself. This accords with the natural meaning and underlying purpose of these sections [32], the explanatory notes to POCA [33] and Council Directives 91/308/EEC and 2005/60/EC [34]. If section 328 did not require property to constitute criminal property before an arrangement came into operation, it would have serious potential consequences in relation to, for example, banks and other financial institutions who are already under onerous obligations to report known, suspected or reasonably suspected money laundering [37]. Whether criminal property has to exist when the defendant enters or becomes concerned with the arrangement The Court of Appeal was correct to hold that it does not matter whether criminal property existed when the arrangement was first made. What matters is that the property should be criminal when the arrangement operates on it [40]. Whether the sums received into the bank accounts constituted criminal property before being paid into the accounts The submission that the money paid into the accounts represented underlying choses in action and that, therefore, criminal property existed before money was received in the accounts would presumably have involved a contract between AM Insurance and the victims. There is a stark absence of material to substantiate the existence of such a contract [42]. Whether the actus reus of the s 328 POCA offence was committed Nonetheless, in the present case the character of the money although lawful at the moment of payment changed on being paid into the bank accounts. The money became criminal property in the hands of B by reason of the fraud perpetrated on the victims. As such, it is legitimate to regard H as entering into or becoming concerned in an arrangement to retain criminal property for the benefit of another. Consequently, the ruling that H had no case to answer was erroneous [47]. Although this same reasoning applies to sections 327 329 of POCA, the wide ambit of these sections can be managed by: (i) the prosecution only adding parasitic counts to substantive ones where there is a proper public purpose in doing so [48]; and, (ii) courts using their powers to discourage inappropriate use of the POCA provisions to prosecute conduct sufficiently covered by substantive offences [49].
This is a procedural appeal about the jurisdiction of the English courts in relation to a group tort claim. It concerns alleged toxic emissions from the Nchanga Copper Mine (the Mine) in Zambia. The claimants (the respondents to this appeal) are approximately 1,826 Zambian citizens who live in the Chingola District. They are very poor members of rural farming communities who are reliant on open bodies of water for drinking and irrigation for their crops. They allege that their health and farming activities have been damaged by the discharge of toxic matter from the Mine into those waterways from 2005 onwards. The owner of the Mine is the second defendant, Konkola Copper Mines plc (KCM). KCM is a Zambian company. The first defendant, Vedanta Resources PLC (Vedanta), is KCMs ultimate parent company. It is incorporated and domiciled in the United Kingdom. The Zambian government has a significant minority stake in KCM, but Vedantas published materials state that, in practice, it has the same ultimate control of KCM as it would if it were a wholly owned subsidiary of Vedanta. The claims against the defendants (the appellants to this appeal) are for the torts of negligence and breach of statutory duty. The claims against KCM, as the foreign defendant, are based on its role as the operator of the Mine. The claims against Vedanta rely on its allegedly high level of control and direction over KCMs mining operations and compliance with applicable health, safety and environmental standards. Against Vedanta, the claimants rely on its domicile in England, pursuant to article 4.1 of Regulation (EU) 1215/2012 (Recast Brussels Regulation). Against KCM, the claimants rely on the necessary or proper party gateway for service out of the jurisdiction in paragraph 3.1 of Practice Direction 6B in the Civil Procedure Rules (CPR). The claimants issued the present proceedings in England in July 2015. Vedanta was served within the jurisdiction, while KCM was served out of the jurisdiction, with permission obtained on a without notice application. Both Vedanta and KCM applied to challenge jurisdiction. Coulson J, in the High Court, dismissed that challenge in May 2016. The Court of Appeal dismissed the defendants appeals in October 2017. The defendants appealed to the Supreme Court and the claimants cross appealed. The main issues are: (1) whether it is an abuse of EU law to rely on article 4 of the Recast Brussels Regulation for jurisdiction over Vedanta as anchor defendant so as to make KCM a necessary or proper party; (2) whether the claimants pleaded case and supporting evidence disclose no real triable issue against Vedanta; (3) whether England is the proper place in which to bring the claims; and (4) even if Zambia would otherwise be the proper place, whether there was a real risk that the claimants would not obtain access to substantial justice in the Zambian jurisdiction. Both in the High Court and in the Court of Appeal, the claimants succeeded on all four issues. The Supreme Court dismisses the appeal. Lord Briggs gives the lead judgment, with which all members of the Court agree. The claimants succeed on issues (1), (2) and (4), though not on issue (3). (1) Abuse of EU law: Article 4.1 of the Recast Brussels Regulation confers a right on any claimant (regardless of their domicile) to sue an English domiciled defendant in England irrespective of connecting factors to other jurisdictions [16]. Issue (1) presupposes that there is a real triable issue against Vedanta [17, 26]. Further, the judges finding that Vedanta was sued in England for the genuine purpose of obtaining damages, even though attracting English jurisdiction over KCM was a key contributing factor, is not open to challenge [27]. Any implied exception to the effect of article 4.1 must be construed narrowly [29 30]. The EU case law on abuse of law under article 8.1 (related defendants) is equally restrictive [31 34]. In that context, the test is whether the sole purpose of joining a defendant is to sue them other than in their Member State of domicile [35]. The EU case law also suggests that the abuse of law doctrine is limited to situations where EU law is invoked collusively to subvert other EU provisions [36]. In light of the decision in Owusu v Jackson (C 281/02) [2005] QB 801 (CJEU), arguments based on forum conveniens cannot justify derogating from the primary rule of jurisdiction in article 4.1 [36 40]. The concern about the wide effect of article 4.1 in this case is best addressed under the domestic law on the necessary or proper party gateway [40]. The claimants thus succeed on issue (1) [41]. (2) Real triable issue as against Vedanta: The summary judgment test applies to issue (2) and it falls to be decided without cross examination or disclosure of the opposing partys documents, given the need for proportionality [42 43]. In this case, the question what level of managerial intervention by Vedanta in KCMs operation of the Mine is sufficient to attract liability in negligence is a question for Zambian law, but the question what that level actually was is a pure question of fact [44]. The assertion that the negligence claim against Vedanta raises a novel and controversial legal issue is misplaced, as the liability of parent companies in relation to the activities of their subsidiaries is not, in itself, a distinct category of negligence unsuited to summary determination [49 51, 54]. On the facts, there was sufficient material identified by the judge in support of the view that the claimants case was arguable and the judge made no error of law in assessing this issue, so his decision on the negligence claim must stand [55 62]. Further, as Zambian law requires substantially the same factual inquiry for the breach of statutory duty claim, the judge properly concluded that this claim was also arguable and, in any event, the point is academic [65]. (3) England as the proper place: The domestic law proper place test requires a summary examination of connecting factors to one or more potential jurisdictions [66]. The search is for a single jurisdiction in which the claims against all defendants may most suitably be tried [68]. Importantly, in cases where it was found that the claim(s) against the anchor defendant will be continued in England, the courts have treated the risk of irreconcilable judgments as a decisive factor in favour of England as the proper place for the claim against the non EU defendant as well [70]. The judge in this case applied that approach [71 72]. That was a legal error in circumstances where Vedanta had by the time of the hearing offered to submit to the Zambian jurisdiction, so that the whole case could be tried there [75, 79]. While an offer to submit does not preclude a claim in England against Vedanta alone, it has the effect that a risk of irreconcilable judgments would be the result of the claimants choice to exercise their article 4 right, rather than because Zambia is not an available forum for all the claims [75]. Leggatt Js judgment in OJSC VTB Bank v Parline Ltd [2013] EWHC 3538 (Comm) is overruled on this point since: (1) article 4 is not designed to avoid the risk of irreconcilable judgments; (2) article 8.1 on joinder is limited to the intra EU context and gives claimants a choice to consolidate proceedings in order to avoid that risk; and (3) there is no reason therefore why claimants should not have to make the same choice, merely because the foreign defendant is domiciled outside the EU [79 83]. It does not follow that the risk of irreconcilable judgments is not a relevant factor in this case, but it is no longer a trump card such that the judge made an error of principle in regarding it as decisive [84]. Looking at the relevant connecting factors in the round, Zambia would plainly have been the proper place for this litigation as a whole, provided substantial justice was available to the parties in Zambia [85 87]. The risk of irreconcilable judgments mainly concerns the claimants, and they have the choice to avoid it by suing all the defendants in Zambia, or to incur it by exercising their right to sue Vedanta in England. (4) Substantial justice in Zambia: Even if the court concludes that a foreign jurisdiction is the apparently the proper place, the court may still permit service of English proceedings on the foreign defendant if cogent evidence shows that there is a real risk that substantial justice would not be obtainable in that foreign jurisdiction [88]. In this case, the judge identified access to justice issues in Zambia [89]. It is not in doubt that Zambia has independent judges, courts and civil procedure which would ensure a just trial of large environmental group claims like this one [89]. The issues are twofold. First, the practicable impossibility of funding such group claims where the claimants are all in extreme poverty, because they could not obtain legal aid and because conditional fee agreements (CFAs) are unlawful in Zambia [89 90]. Secondly, the absence within Zambia of sufficiently substantial and suitably experienced legal teams to enable effective litigation of this size and complexity, in particular against a well resourced opponent like KCM [89]. The criticisms that the judge failed in his approach to the access to justice issue are not well founded [92 98]. Overall, the defendants fail on issue (4), which means their success on issue (3) is academic [101 102]. Conduct of litigation on jurisdiction: The court takes the opportunity to warn litigants of the need to conduct jurisdiction disputes in an economical and proportionate manner [6 14].
The appellant, Bocardo, is the freehold owner of the Oxsted Estate, Surrey. The apex of an oil field (the Palmers Wood oil field) lies at a depth of some 2,800 ft below ground within the Oxsted Estate. Pursuant to section 2 of the Petroleum (Production) Act 1934 Star held a licence issued by the Secretary of State for Energy on behalf of the Crown giving them the exclusive right to search and bore for and get the petroleum lying underground (the property in which section 1 of the 1934 Act had vested in the Crown) in a part of Surrey including the Palmers Wood oil field. To win the petroleum, Star needed to drill and install three wells. These three wells were drilled diagonally from a site outside Bocardos Oxsted Estate. They each entered the estate at various depths below ground level (between about 800 ft and 1,300 ft), ran through the estate for between about 250 m and 700 m and then exited the estate at a depth below ground level that was even greater than the depth at which they entered the estate. Their drilling and installation occasioned no harm whatsoever to the estate. There was no interference with Bocardos use or enjoyment of its land. The Mines (Working Facilities and Support) Act 1966 applied to enable Star to acquire such ancillary rights as they required in order to win the petroleum. Stars predecessors did not seek to negotiate any contractual licence or way leave from Bocardo to drill and install the wells. Nor did they apply for any statutory right to do this under the 1966 Act or the Pipelines Act 1962. Star in turn did not seek to do this when they acquired the licence from their predecessors. So far as material, section 8(2) of the 1966 Act provides that [t]he compensation or consideration in respect of any right. shall be assessed. on the basis of what would be fair and reasonable between a willing grantor and a willing grantee. And section 3(2)(b) of the 1934 Act gave the grantor a minimum uplift in compensation of 10% on account of the acquisition of the right being compulsory. The issues that this case raises fall into two parts: The trespass issue: was the drilling of the wells under Bocardos land an actionable trespass? The High Court held that it was and its decision was affirmed by the Court of Appeal. The damages issue: if there was an actionable trespass, what is the correct measure of damages? The measure that was adopted by the High Court was rejected by the Court of Appeal, which made a very substantial reduction in the award of damages. Bocardo appealed to the Supreme Court on the damages issue, and the respondents cross appealed on the trespass issue. The Supreme Court unanimously dismisses the respondents cross appeal on the trespass issue, with Lord Hope giving the judgment of the Court on this issue. By a majority (Lord Walker, Lord Brown and Lord Collins), the Supreme Court dismisses Bocardos appeal on the damages issue, with Lord Brown giving the judgment of the majority on this issue. The trespass issue The question whether the drilling of the wells under Bocardos land, and the continued presence of the well casing and tubing within them, was an actionable trespass raises the following issues: (1) Whether Bocardos title to the land extends down to the strata below the surface through which the three wells and their casing and tubing pass. (2) Whether possession or a right to possession is a pre condition for bringing a claim for trespass and, if so, whether Bocardo has or is entitled to possession of the subsurface strata through which these facilities pass. (3) Whether the respondents have a right under the 1934 Act to drill and use the three wells and their casing and tubing to extract petroleum from beneath Bocardos land which gives them a defence to a claim in trespass. As to (1), the Court holds that the owner of the surface is the owner of the strata beneath it, including the minerals that are to be found there, unless there has been an alienation of them by conveyance, at common law or by statute, to someone else. There must obviously be some stopping point, as one reaches the point at which physical features such as pressure and temperature render the concept of the strata belonging to anybody so absurd as to be not worth arguing about. But the wells that are at issue in this case are far from being so deep as to reach the point of absurdity. Indeed the fact that the strata can be worked upon at those depths points to the opposite conclusion [para 27]. As to (2), as the paper title carries with it title to the strata below the surface, Bocardo must be deemed to be in possession of the subsurface strata too. There is no one else who is claiming to be in possession of those strata through Bocardo as the paper owner [para 31]. As to (3), the right to search and bore for and get the petroleum was obtained by the respondents under licence from the Crown. There is no common law defence against a claim of trespass in relation to a landowner who was not a party to that arrangement [para 32]. The relevant statutory provisions (and the context in which they were enacted) also do not give the respondents a defence to Bocardos trespass claim [paras 33 35]. The damages issue The answer to the damages issue depends upon the answers to two fundamental questions: (1) Do the principles ordinarily governing the approach to valuation in the field of compulsory land purchase apply equally to the construction of the application of section 8(2) of the 1966 Act with regard to the compulsory acquisition of ancillary rights over (or, as here, under) land? (2) Even assuming that compulsory purchase principles apply to the assessment of compensation under section 8(2), can Bocardo nevertheless assert and benefit from the key value of the ancillary right which Star needed to acquire here? As to the first question, that the present context is one of compulsory acquisition of rights over land seems to Lord Brown indisputable. Lord Brown notes that this could not be more clearly demonstrated than by the express requirement under section 3(2)(b) of the 1934 Act for a 10% or greater uplift in compensation on account of the acquisition of the right being compulsory [para 71]. If the Court is to construe section 8(2) consistently with other legislative provisions governing compulsory acquisition, it falls to be approached on the basis that what is fair and reasonable depends not on what the grantee is gaining but rather on what the grantor is losing [para 74]. As to the second question, Lord Brown referred to the decision of the House of Lords in Waters v Welsh Development Agency [2004] 1 WLR 1304, in which it was reaffirmed that if any premium value of a strip of land was due to the very scheme of which the acquisition forms an integral part, that value fell to be disregarded (the no scheme rule). However, it was also recognised in Waters that a strip of land may have special value if it is key to the development of other land. In that event this feature of the land represents part of its value as much for purposes of compensation as on an actual sale in the open market [paras 80 81]. The scheme in the present case is the exploitation of the petroleum licence in the specified area. There cannot be any doubt that, whatever particular value existed in the ancillary right here required to facilitate that exploitation (any premium or key or ransom value), it existed exclusively because of the scheme. But for the scheme, there was no potential use of value whatever in the right being granted [para 82]. It is impossible to characterise the key value in the ancillary right being granted here as pre existent to the scheme [para 83]. It must be recognised that by the 1934 Act, Parliament in terms (a) vested the property in all petroleum in the Crown, (b) gave the Crown the exclusive right of searching and boring for and getting such petroleum (a right that could be licensed to others, as here to Star) and (c) enabled any licencee compulsorily to acquire any necessary ancillary right (as here to access the petroleum through Bocardos land). The correct analysis is that by these provisions Parliament was at one and the same time extinguishing whatever pre existing key value Bocardos land might be thought to have had in the open market and creating a new world in which only the Crown and its licencees had any interest in accessing the oilfield and in which they had been empowered to do so compulsorily and on terms subject to the no scheme rule approach to compensation [para 90].
This appeal concerns a fathers application for an order for the immediate return of his daughter from England and Wales to Israel. The issue raised is whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Convention), was nonetheless entitled to grant it under the inherent jurisdiction of the High Court to make orders in relation to children (the inherent jurisdiction). The childs parents are Israeli nationals who married in 2013. She is their only child and is now aged almost three. Her parents lived at first in Israel but moved to London in November 2018. There the marriage broke down. The father returned to Israel, but the mother refused to do so, and remained in London with the child. The father applied under the Convention, which is set out in Schedule 1 to the Child Abduction and Custody Act 1985 (1985 Act), for a summary order for the childs immediate return to Israel. The allegation underpinning his application was that, on 10 January 2019, when the marriage broke down, the mother had wrongfully retained the child in England. The High Court granted the fathers application. On appeal, the Court of Appeal ruled that it had not been open to the judge to make an order under the Convention and set his order aside. It held that there had been no grounds for concluding that the mothers retention of the child in England had been wrongful, and so the Convention had not been engaged. However, it then referred to passing observations made by the High Court judge to the effect that, if he had found that the child had been habitually resident in England, he would have reached the same decision to order the childs immediate return under the inherent jurisdiction as he had under the Convention. Relying on those observations, the Court of Appeal made a summary order for the childs return under the inherent jurisdiction. The mother appealed to the Supreme Court. On 14 August 2019, the Supreme Court unanimously allowed the appeal and set aside the Court of Appeals order. Owing to the urgency of the decision, a judgment giving reasons was not issued at that time. Lord Wilson now gives the unanimous judgment of the court setting out its reasons. The appeal raises two questions. First, was the inherent jurisdiction available to the Court of Appeal in principle? Second, if so, was the exercise of it flawed? The answer to both questions is yes [2 3]. Inherent Jurisdiction Available The mother argued that the inherent jurisdiction had not been available to the Court of Appeal on the grounds that a summary order (i.e. an order made without a full, conventional, investigation) for the childs return outside the Convention could only have been made as a specific issue order under the Children Act 1989 (the 1989 Act) [26]. A specific issue order is an order made to decide a question connected with any aspect of parental responsibility for a child: had it been appropriate on the facts to make such an order here, it would have been open to the Court of Appeal to do so [27 28]. Before the introduction by the 1989 Act of specific issue orders, summary orders for the return of a child abroad could be made under the inherent jurisdiction [29 30]. Such orders continued to exist alongside orders under the Convention after it was introduced into domestic law by the 1985 Act, since differences between the inherent jurisdiction and the Convention mean that an order for a childs return may, in some circumstances, be required under the former, but not the latter, legal framework [31]. But did the 1989 Act do away with the inherent jurisdiction to order a childs return [32]? The mother argued that para 1.1 of Practice Direction 12D, supplementing the Family Procedure Rules 2010, showed that the 1989 Act did have that effect: for it instructs that the inherent jurisdiction should only be invoked where the issues cannot be resolved under the 1989 Act [33 36]. However, practice directions have no legal authority to the extent that they state the law incorrectly [37 38]. There is no statutory basis for the instruction in para 1.1, and the case law indicates that an order can be made under the inherent jurisdiction even where a specific issue order would also have been available [39 43]. Therefore the instruction in para 1.1 goes too far. However, if an order is available by both routes and a party chooses to invoke the inherent jurisdiction, the judge will need to be persuaded early in the proceedings that that choice was reasonable [44]. Nor does the court accept the mothers argument that an application for a summary specific issue order requires a different inquiry from an analogous application under the inherent jurisdiction. The same approach is required under both frameworks, as both are based on the principle that the childs welfare is paramount [45 50]. Exercise of Inherent Jurisdiction Flawed The Court of Appeal did not inquire into whether the childs welfare required a summary order for her return, as it considered that the High Court had made that determination and had not erred in doing so [51]. Yet the judge had not made a determination under the inherent jurisdiction [52]. Nor could his determination under the Convention stand as one under the inherent jurisdiction: for the Convention, unlike the inherent jurisdiction, is not based on the paramountcy of the childs welfare [53]. The fact that the father had not invoked the inherent jurisdiction did not prevent the Court of Appeal from making an order under it. But it did place a duty on the Court of Appeal to ask whether the mother had had sufficient notice of its intention to use the inherent jurisdiction to allow her to seek to oppose it [54]. The Court of Appeal should also have considered eight further questions before making its order under the inherent jurisdiction, including whether the evidence before it was sufficiently up to date, and whether the High Court judge had made findings sufficient to justify the order [55 63]. Its failure to consider any of these questions is what led the Supreme Court to uphold the appeal [64].
The issue in the appeal is: what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, when such approval has never been given? In particular, is any evidence which makes use of the fingerprints taken on such a device inadmissible at the defendants trial? The appellants were charged with theft in Northern Ireland. The offence was alleged to have taken place on 6 October 2007. A stack of building materials had been found removed from the owners depot apparently ready for collection by thieves. The appellants were found nearby in a van but said they were waiting there innocently. They were arrested and their fingerprints were taken at the police station using an electronic fingerprint scanner called Livescan. This machine has been commonly used by police in the UK, including in Northern Ireland, for a number of years. A fingerprint matching Elliotts left thumb was found on packaging of the building materials. Article 61 of the Police and Criminal Evidence (Northern Ireland) Order sets out the powers of the police to take fingerprints without consent. Between 1 March 2007 and 12 January 2010 article 61(8B) provided that where a persons fingerprints are taken electronically, they may only be taken using such devices, as the Secretary of State has approved for the purpose of electronic fingerprinting. Due to an oversight no approval was ever given to any device (including Livescan) until it was belatedly provided on 29 March 2009. Article 61(8B) was later repealed by the Policing and Crime Act 2009. Therefore at the time the fingerprints were taken from the appellants there was no approval for the Livescan machine in breach of article 61 (8B). The appellants were convicted at trial and no issue over the fingerprints was taken. After the lack of approval for the Livescan device was noticed the appellants appealed to the County Court which, after a full re hearing, declared the fingerprint evidence inadmissible and acquitted the appellants. The Public Prosecution Service appealed to the Court of Appeal who allowed the appeal and reinstated the appellants convictions. The appellants primary argument before the Supreme Court and the courts below was that the lack of approval for the Livescan device meant that the fingerprints obtained with it were automatically inadmissible at the appellants trial. The Supreme Court dismisses the appeal. Lord Hughes gives the judgment of the court. The difficulty with the appellants argument is that the statute says nothing about the potential consequences of failure to use an approved device. This is despite the fact that there are numerous examples of other statutes where such consequences are expressly spelled out, such as in relation to obtaining specimens of breath for road traffic offences [8]. There is a well understood common law rule that evidence which has been obtained unlawfully does not automatically become inadmissible. It is clear that this rule extends equally to evidence created by an unlawful process as it does to existing material uncovered by unlawful process. The common law background to the legislation (article 61 (8B)) shows that inadmissibility of the fingerprints here under consideration cannot possibly simply follow from the existence of the requirement for device approval [9]. It is not correct to say that article 61 (8B) would have no purpose unless fingerprints obtained from unapproved devices were inadmissible at trial. A defendant who was asked to give a fingerprint on an unapproved device could lawfully refuse to do so. While, if such devices were found to be routinely in use by police, there would be no defence to an application for judicial review in which their unlawfulness could be declared and further use prohibited [10]. The appellants relied on the rule that the product of a breathalyser test was inadmissible unless the testing device was an approved one. However, the requirement for approval of fingerprint devices is not analogous to that in cases of breath tests or speed guns. The latter are methods of measuring something that cannot be re measured, they capture a snapshot of the suspects activity and are often the offence itself i.e. being found to be over the prescribed limit of alcohol at the time of driving. The fingerprints on the other hand could be reproduced at any time afterwards, and would be the same. If the Livescan readings were disputed they could readily be independently checked for accuracy and further fingerprints taken by a different method. The ease of which this could be done shows there was no need for Parliament to stipulate that the product of unapproved fingerprint readers should be inadmissible. Further, no challenge was ever made by the appellants to the accuracy of the fingerprints taken by the Livescan device [15]. The background material to the legislation shown to the Court further shows that the purpose of the requirement for device approval was not principally the protection of the individual against the risk of conviction on inaccurate evidence [16]. Relevant parts of the Protection for Freedoms Act 2012 and Criminal Justice (Northern Ireland) Act 2013 regarding fingerprints that have yet to come into force further support the construction of the legislation chosen by the Supreme Court in this case as, where required, express provision is made for evidence to be inadmissible [18].
The respondent (ATK) brought a public procurement claim against the appellant, a non departmental public body (the NDA), in connection with ATKs unsuccessful bid for a contract for services to decommission sites previously used for nuclear generation. The parties have agreed to compromise the claim, but have requested the Court to issue its judgment nonetheless. For this purpose, the NDA is to be taken, as the judge held, to have failed wrongly to award the contract to the consortium to which ATK belonged, in breach of its obligations under the Public Procurement Regulations 2006 (the 2006 Regulations), which give effect in the UK to the Public Procurement Directive No 2004/18/EC (the PP Directive). Directive No 89/665/EEC, as amended (the Remedies Directive), requires effective remedies for economic operators to be made in such cases, including compensation and the setting aside of awards. It was given domestic effect by amendment of the 2006 Regulations. Regulation 47G of the 2006 Regulations thus requires a contracting authority, on becoming aware of the issue of a claim form relating to its procurement decision, to refrain from entering into the contract with the successful tenderer, if not already entered into, until court order or disposal of the proceedings. Although the NDA observed an extended standstill period during which, pursuant to regs.32(1) and 32A(5), it could not enter into a contract with the successful tenderer, it refused ATKs request for a further extension and proceeded to enter into the contract. ATK subsequently issued the present proceedings, within the 30 day time limit provided by reg.47D. The following preliminary issues regarding the circumstances in which damages may be recoverable for breaches of the 2006 Regulations arose for consideration: (i) whether the Remedies Directive only requires a damages award to be made when any breach of the PP Directive is sufficiently serious; (ii) whether reg.47J(2)(c) of the 2006 Regulations confers a power to award damages in respect of any loss or damage suffered by an economic operator in the case of any breach (not merely a sufficiently serious breach) of the Regulations; and (iii) whether (and, if so, when) a damages award under reg.47J(2)(c) of the 2006 Regulations may be refused on the basis that an economic operator issued proceedings within the 30 day period provided by reg.47D, but not before the contracting authority entered into the contract. The Court of Appeal determined these issues to the following effect: (i) Yes; (ii) Yes; and (iii) no. The NDA appeals to the Supreme Court on issues (ii) and (iii). The Supreme Court allows the NDAs appeal on issue (ii) but dismisses it on issue (iii). Lord Mance gives the judgment, with which the rest of the Court agrees. Issue (i) The sufficiently serious condition in EU law ATKs case in the Supreme Court was that EU law requires a remedy in damages for any breach, whether serious or not, or that this issue should at least be referred to the Court of Justice. This case would, if accepted, have constituted a reason for reaching the same result as the Court of Appeal did by reference to domestic law. ATKs case is not, however, accepted on this issue. The decision of the Court of Justice in Spijker (Case C 568/98) provides clear authority that the liability of a contracting authority under the Remedies Directive for breach of the PP Directive is assimilated to that of the state or of a public body for which the state is responsible [19 25]. Such liability is only required to exist where the minimum Francovich conditions are met, the second of which is that the breach must be sufficiently serious [9]. Articles 1 to 3 of the Remedies Directive do not evince an intention to provide a remedy in damages for harm caused by infringements generally [14; 25]. Any further international obligation (if any) to which the EU may have committed itself under the Government Procurement Agreement (GPA 1994), including under article XX(7), provides only weak support for ATKs argument to the contrary and cannot in any event withstand the clear impact of the Courts judgment in Spijker [15; 25]. Issue (ii) The second Francovich condition at domestic law level The UK legislator has not, by the 2006 Regulations, gone further than EU law requires by conferring a power to award damages in respect of loss or damage suffered by an economic operator in the case of any breach, as opposed to only a sufficiently serious breach, of the Regulations. The Court of Appeal was correct to consider that the explanatory materials preceding the amendments to the 2006 Regulations indicate the legislators intention to do only what was necessary to implement the Remedies Directive without any gold plating [33 35]. However, the Court of Appeal erred in its assumption that any claim for damages under the 2006 Regulations was no more than a private law claim for breach of a domestically based statutory duty, and that this categorisation automatically freed the claim from any conditions which would otherwise apply under EU law [37 39]. The scheme of the Remedies Directive is a balanced one, with the Francovich conditions representing the Court of Justices conclusion as to the appropriate level of minimum protection by way of damages which an economic operator can expect. The UK legislator would not have gone further than required by EU law when implementing this scheme without considering this and making it clear [39]. This conclusion is also consistent with the use of the word may in regs.47I(2) and 47J(2)(c) which would otherwise have no real significance [32; 39]. Issue (iii) Failure to claim before the contract is made ATK cannot be said to have failed to mitigate (or avoid) its loss by not having taken steps to prevent the NDA from carrying its breach of duty into effect. The remedies scheme aims specifically at giving an economic operator the opportunity to stop the wrongful award of a procurement contract to a competitor. But an operator will not act unreasonably in not taking advantage of that opportunity. The scheme gives both parties choices as to how to proceed and how to protect themselves [53 55]. The NDA could have delayed entry into the contract under after the 30 day period which ATK had to commence proceedings. ATK may not have issued its claim form at a time when this would have put an automatic stop on the NDA entering into the contract because it appreciated that this would lead to the NDA seeking to lift the stop, and ATK in turn having to put up security for any loss the NDA would suffer through the continuation of the stop [51 52]. An economic operator cannot be said to have acted unreasonably in deciding not to pursue a course which exposes it to the risks associated with the possibility of its challenge to the contract award decision failing [54].
Highbury Poultry Farm Produce Ltd (HPFPL) operates a poultry slaughterhouse. The average throughput is 75,000 chickens per day, equating to 19,500,000 or so chickens per annum. The birds have their legs shackled to a moving line and are then submitted to a number of sequential processes, including stunning, bleeding and scalding. On 31 August, 12 September and 5 October 2016 a chicken went into the scalding tank (where its feathers would be removed) while still alive because its neck had not been properly cut by a certified operative. HPFPL was charged with two offences in respect of each of the three incidents: failure to comply with article 3 of Regulation (EC) No 1099/2009 (the EU Regulation), (i) which required that animals should be spared avoidable suffering during their killing, contrary to regulation 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations 2015 (the WATOK Regulations 2015); and failure to comply with article 15(1) of the EU Regulation by failing to sever the carotid arteries and verify that the animal presented no signs of life before scalding, contrary to regulation 30(1)(g) of the WATOK Regulations 2015. The trial judge dismissed HPFPLs argument that regulation 30(1)(g) of the WATOK Regulations required proof of mens rea (ie proof that the defendant had knowledge of the factual circumstances constituting the alleged offence) or culpability on the part of the defendant. HPFPL challenged this ruling by way of judicial review. The Divisional Court found that there was a presumption that the WATOK Regulations 2015 required proof of mens rea, but that this presumption was displaced, not least due to social concern regarding animal welfare. HPFPL appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Burrows gives the sole judgment. The Court holds that both offences are offences of strict liability. Negligence by the business operator does not have to be proved. Regulation 30(1)(g) of the WATOK Regulations provides that it is an offence to contravene the EU Regulation. Article 3(1) of the EU Regulation provides that Animals shall be spared any avoidable pain, (ii) distress or suffering during their killing and related operations. Article 15(1), Annex III, point 3.2 of the EU Regulation provides that in case of simple stunning the two carotid arteries or the vessels from which they arise shall be systematically severed Further dressing or scalding shall only be performed once the absence of signs of life of the animal has been verified [9]. HPFPL submitted that it was sufficient for negligence to be required under either the EU Regulation or the WATOK Regulation. As to the latter, in interpreting a domestic legal provision, there is a presumption that a crime requires mens rea or culpability [11]. However, the Court holds that the WATOK Regulations are no more than the mechanism through which the EU Regulation is given effect in domestic law. It is solely the interpretation of the EU Regulation that matters. In general, an EU regulation leaves Member States with the discretion to decide whether to create criminal offences in their domestic legislation. The WATOK Regulations 2015 create such offences [14]. However, while member states have a discretion as regards penalties, they have no discretion to lower the standards required by the EU regulation in question. If the EU regulation imposes strict liability, the domestic regulation must do the same [15]. Thus, if HPFPL fails to establish that negligence is required under the EU Regulation, then it cannot succeed on the basis that, in any event, regulation 30(1)(g) of the WATOK Regulations 2015 requires negligence and does not impose strict liability [16]. The EU Regulation has to be interpreted in accordance with EU law principles [19]. Insofar as they are different, domestic rules of statutory interpretation are displaced by those principles [23]. The teleological approach to legislative interpretation required by EU law means that there is a heavy stress on seeking to ensure that the interpretation of the words fulfils the purposes of the legislative provision and, more generally, the purposes of the EU [27]. The imposition of strict liability in the context of criminal law is not contrary to EU law [28]. The wording of article 15(1), requiring the severing of the carotid arteries, suggests the imposition of strict liability. There is no hint that business operators shall be liable only if the operational rules are intentionally or negligently infringed [33]. This interpretation is supported by the purpose of the provision. Strict liability imposes a clear and easily enforceable standard, uniform across the EU, and avoids the difficulty in pinpointing the individual upon whom the requisite state of mind must be attributed [34]. Article 15(1) therefore imposes strict liability [37]. The wording of article 3(1), requiring animals to be spared any avoidable suffering during their killing, also suggests strict liability [39]. Recital (2) to the EU Regulation, despite mentioning suffering being induced by negligence or intention, does not affect the wording of article 3(1). It merely clarifies that a breach of article 3(1) will usually entail fault. Negligence or intention are examples of the ways in which a breach of the EU Regulation induces suffering, but they do not form an exhaustive list [48]. The recitals to an EU regulation cannot be interpreted in such a way as to contradict the clear wording of that regulation [49]. Further, the earlier incarnation of the EU Regulation, Directive 93/119/EEC, did not include the words negligence or intention in the relevant recital. It is highly unlikely that the EU would have made its animal welfare requirements less strict under the EU Regulation than under the Directive it replaced [52]. Article 3(1) therefore also imposes strict liability [53].
This appeal concerns the decision of the respondent Secretaries of State for Foreign Affairs and Defence to refuse to hold a public inquiry into events which took place while the UK was the colonial power in the former Federation of Malaya (now Malaysia). The UK government sent troops to the Federation in 1948 in response to an insurgency. On 11 12 December 1948, a patrol of Scots Guards killed 23 unarmed civilians in the village of Batang Kali in Selangor, one of the states of the Federation. The Appellants are related to one or more of the victims. Following the incident, the UK government characterised the events as killings of bandits who had attempted to escape. There were subsequent calls for an investigation and, following statements by participants in the operation that the deceased had been massacred on orders and that those killed had not been fleeing, the Metropolitan Police began an investigation in 1969. This investigation was subsequently terminated in 1970. Allegations of unlawful killing resurfaced in 1992 with the broadcast of a BBC documentary. An investigation was started by the Royal Malaysian Police in July 1993 but subsequently closed in 1997. On 12 December 2008, a campaign group called The Action Committee Condemning the Batang Kali Massacre presented a petition seeking a public inquiry from the British government. The Respondents informed the Appellants by letter on 29 November 2010 and 4 November 2011 of their decision to refuse to hold an inquiry into the killings. The Appellants applied for judicial review of the refusal to hold a public inquiry, arguing that a public inquiry was required on three different grounds: (i) under Article 2 (right to life) of the European Convention on Human Rights (ECHR); (ii) under the common law by virtue of its incorporation of principles of customary international law; and (iii) under the common law by judicial review of the Respondents exercise of their discretion under section 1 of the Inquiries Act 2005. The Respondents cross appealed contending that the issues were not within the jurisdiction of the UK courts. The Supreme Court unanimously rejects the Respondents jurisdiction argument, but unanimously dismisses the appeal on grounds (i) and (ii) and dismisses the appeal on ground (iii) by a majority of 4 1 (Lady Hale dissenting). Lord Mance gives a judgment, with which the other Justices agree, holding that the Court has jurisdiction; on the three grounds of appeal, Lord Neuberger rejects them in a judgment, with which Lord Mance and Lord Hughes agree, Lord Kerr gives a concurring judgment, and Lady Hale gives a dissenting judgment. Preliminary issue: Jurisdiction The issue of jurisdiction has two strands: (i) whether the UK can be said to have been responsible for the killings; and (ii) whether the UK can be held responsible for not holding an inquiry now [152]. As to the first strand, the Respondents contended that, as the Scots Guards were operating within the constitutional framework of Selangor and the Federation, their acts were not attributable to the UK government. This argument is rejected. The Scots Guards were in the Federation in the service of His Majesty and in the interests of the United Kingdom. The powers of the British government in the Federation were not solely referable to the domestic arrangements in the Federation [187]. Those who were killed were within the British armys control at the time, whether they were seeking to escape or not [189]. Had the ECHR been in force in 1948, the killings would have occurred within the United Kingdoms jurisdiction for the purposes of article 1 of the ECHR [189 90]. As to the second strand, the Respondents contended that any liabilities or obligations which the UK may have had prior to 1957 passed that year to the newly independent Federation by virtue of article 167(1) of the Federal Constitution [154]. This argument is rejected. It is not at all clear that the actions of the UK government fell within article 167(1) as they are more properly characterised as being carried out in the interests of the UK rather than being rights, liabilities and obligations in respect of the government of the Federation as required by article 167(1) [192]. In any event, the UK governments duty to hold an inquiry, whether under domestic or international law, could not be released on the basis that the independent Federation had been a successor state to the UK as a matter of international law, even if this were the case [197]. Ground (i): Article 2 The ECHR came into force for the UK on 3 September 1953 and was extended to the Federation of Malaya on 23 October 1953. The UK recognised the right of an individual to petition the European Court of Human Rights (ECtHR) on 14 January 1966. The Respondents argued that the Appellants had no article 2 claim because the killings occurred before the ECHR came into force in the UK. Article 2 creates a separate and autonomous duty on a state to carry out an effective investigation into any death which occurs in suspicious circumstances [69]. While the general principle is that the ECHR is not retrospective, article 2 could create obligations for a state to investigate a death which occurred before the date of the entry into force of the ECHR (the critical date) where there exist: (i) relevant acts or omissions after the critical date; and (ii) a genuine connection between the death and the critical date [71 72]. The first criterion was satisfied in the present appeal because there had been no prior full or public investigation of the killings and no publicly available evidence from any member of the patrol to suggest that the killings had been unlawful prior to 1969 and 1970, and the evidence which subsequently came to light in 1969 and 1970 appears to have been compelling and suggests that the killings were unlawful [75]. As to the second criterion, in order for there to be a genuine connection, the lapse of time between the death triggering the investigative duty and the critical date must remain reasonably short, and should not exceed ten years [76]. As to the question of whether the critical date is the date of the coming into force of the ECHR or the date when the right of petition was recognised by the UK, the majority holds that it was the date when the right of petition was recognised that is the relevant critical date [81, 87]. On this basis, as the killings occurred more than ten years before the critical date, there is no genuine connection and the article 2 claim must fail [88 89]. Lord Kerr and Lady Hale come to the same conclusion but for different reasons. Lord Kerr considers that, as there was no clear guidance from the ECtHR as to which of the two dates was the relevant critical date, the Court could not say that the ECtHR would have concluded that the date of the coming into force of the ECHR is the critical date [239]. Lady Hale considers that the critical date is the date that the ECHR came into force [290 291, 299] but would dismiss the article 2 claim, because (i) the inquiry is sought for the purposes of establishing historical truth rather than legal liability [300]; and (ii) as a matter of principle, there is a difficulty in finding that there could be a genuine connection between killings which occurred before the coming into effect of the ECHR and obligations imposed by the ECHR [301]. Ground (ii) Duty to hold an inquiry under the common law by virtue of incorporation of principles of customary international law It is only within the last 25 years that international law has recognised a duty on states to carry out formal investigations into at least some deaths for which they were responsible and which may have been unlawful. The fact that the killings took place before this requirement became a part of customary international law means that the duty could not be relied upon [115], even where there are strong reasons for believing that a war crime had occurred [112, 268]. Further, even if a duty existed, such a requirement could not be implied into the common law [112]. Parliament has expressly provided for investigations into deaths through the coroners courts, the Inquiries Act 2005 and the incorporation of article 2 of the ECHR through the Human Rights Act 1998. In these circumstances, it would be inappropriate for the courts to take it upon themselves to impose a further duty, particularly one with such potentially wide and uncertain ramifications [117, 151]. Ground (iii) Judicial review of the Respondents failure to hold an inquiry under section 1 of the Inquiries Act 2005 Applying the ordinary principles of judicial review, the majority considers that the grounds for the decision contained in the Respondents letters to the Appellants informing them of the Respondents decision not to hold an inquiry were not unreasonable and thus not open to challenge [129]. Had the decision not to hold an inquiry been reviewed on the standard of proportionality, the conclusion would have been the same, namely that the decision was not disproportionate [139, 143, 283]. Lady Hale (dissenting) considers that the decision of the Respondents was one which no reasonable authority could reach [313], because the Respondents did not consider the public interest in properly inquiring into an event of this magnitude, the private interests of the relatives and survivors in knowing the truth and the importance of setting the record straight [312]. In this case, the value of establishing the truth was, in her view, overwhelming [313].
Mexfield Housing Co Operative Ltd (Mexfield) is a fully mutual housing co operative association founded by a bank as part of a mortgage rescue scheme with a view to buying mortgaged properties from borrowers in difficulty and letting the properties back to them. The borrowers were required by Mexfields rules to become members of the association: [1]. One of the properties acquired in that way was 17 Elton Avenue, Barnet, which Mexfield bought from Ms Ruza Berrisford and let back to her under an Occupancy Agreement dated 13 December 1993: [2]. The Occupancy Agreement provided that rent was to be payable weekly in advance at 89 per week (subject to annual increases). The only express provisions of the Occupancy Agreement dealing with its termination provided that it could be determined, under clause 5, by Ms Berrisford giving Mexfield one months notice in writing and, under clause 6, by Mexfield by the exercise of the right of re entry specified in this clause but ONLY in [certain specified] circumstances which did not include the giving of notice to quit: [5]. Because Mexfield was a mutual housing association the only statutory protection from which Ms Berrisford benefited was a right to (a) not be evicted without a court order and (b) at least four weeks notice to quit: [6]. Ms Berrisford remained in occupation and complied with her obligations under the Occupancy Agreement until (apparently through no fault of her own) she fell into arrears with her rent, which she soon paid off. Rather than invoke any of the provisions of clause 6 of the Agreement, Mexfield sought to end Ms Berrisfords occupancy by serving a notice to quit: [7]. Mexfield applied for summary judgment on the basis that the Occupancy Agreement could not be a valid express tenancy because it was of uncertain duration. However, it said, an implied periodic tenancy arose by virtue of the payment and acceptance of rent since 1993, and, pursuant to well established principles, Mexfield was therefore entitled to determine such a tenancy by notice to quit: [9]. At first instance, His Honour Judge Mitchell refused Mexfields application for summary judgment. On appeal, Peter Smith J, and on appeal from him, the Court of Appeal, accepted Mexfields argument and made an order for possession: [10]. The Supreme Court unanimously allows the appeal. The Occupancy Agreement takes effect as a lease for 90 years, determinable by Mexfield only on one months notice on Ms Berrisfords death or in accordance with the provisions of clause 6 of the Occupancy Agreement. Lord Neuberger gives the leading judgment with which Lord Hope, Lord Walker, Lady Hale, Lord Mance, Lord Clarke and Lord Dyson agree, each adding further comments of their own. The first point to consider was whether Mexfield was entitled on a proper construction of the Agreement, to terminate Ms Berrisfords occupancy on one months notice. For the purposes of interpreting the Occupancy Agreement, the surrounding circumstances were that Mexfield was a co operative housing association and the purpose of the agreement was to provide Ms Berrisford with a home; these factors together with the mortgage rescue background tends to support the notion that Ms Berrisfords right of occupation was not intended to be precarious: [15]. Despite the fact that the Agreement is expressed to be a tenancy from month to month, it seems clear from the language of the Agreement that the parties intended that the arrangement should only be determinable pursuant to clauses 5 or 6:[18] [22]. On a review of the authorities, such an agreement cannot take effect as a tenancy according to its terms as it is for an uncertain duration: [23] [34]. While there is no apparent justification for the rule that an agreement for a term of uncertain duration cannot give rise to a tenancy and the law is not in a satisfactory state, this rule has been established for many centuries and should not be jettisoned, at least in this case: [34] [37]. However, before the Law of Property Act 1925 came into force, the common law treated an agreement for an uncertain terms such as the Occupancy Agreement as a tenancy for the life of the tenant, determinable before the tenants death according to its terms: [38] [44]. The effect of section 149(6) of the 1925 Act is that the Occupancy Agreement, as a tenancy for life at common law, is to be treated as a term of 90 years determinable on the death of Ms Berrisford, subject to the rights of determination in clauses 5 and 6: [45] [53]. Accordingly Ms Berrisford retains her tenancy and Mexfield is not entitled to possession: [57]. Although this conclusion makes it unnecessary to consider Ms Berrisfords alternative case in contract, having heard full submissions, Lord Neuberger expresses the view that, if Ms Berrisford had failed in establishing that she had a subsisting tenancy, she would have defeated Mexfields claim for possession on the ground that she is entitled to enforce her contractual rights as between the parties, albeit that they are not capable of binding the parties successors as no interest in land or other proprietary interest would subsist: [58] [68]. Lady Hale does not think it necessary to express an opinion on this alternative case in contract: [96].
These appeals concern the obligations of insurance companies under various contracts of employers liability (EL) insurance. In particular, the appeals concern the scope of the insurers obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later. The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendants negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employees mesothelioma was caused by exposure to asbestos during a particular policy year. At first instance Burton J held that the policies should all be interpreted as having a causation wording. He therefore held that the liability trigger under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed. A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease contracted during the relevant insurance period); however they concluded that other policies (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma sustained or contracted at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employees body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an employee sustained or contracted mesothelioma during a particular policy period? The Supreme Court dismisses the insurers appeal by a 4 1 majority; Lord Phillips dissenting on the second issue. Lord Mance gives the main judgment. To resolve the meaning of the EL policies it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more generally [19]. Several features point the way to the correct construction. First, the wordings of the policies on their face require the course of employment to be contemporaneous with the sustaining of the injury [20]. Second, the wordings demonstrate a close link between the actual employment undertaken during each period and the premium agreed by the parties for the risks undertaken by the insurers in respect of that period. Third, on the insurers case there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to disease or injury in another later period [24]. Fourth, on the insurers case employers would be vulnerable to any decision by the insurers not to renew the policy. A decision not to renew might arise from the employers complying with their duty to disclose past negligence upon any renewal. Employers who discovered that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease would have such a duty. The insurers could then simply refuse any renewal or further cover [25]. Fifth, the way most of the policies deal with extra territorial issues throws doubt on any suggestion that the wordings are so carefully chosen that a court should stick literally to whatever might be perceived as their natural meaning [28]. Section 1 of the Employers Liability Compulsory Insurance Act 1969 also points the way to the correct interpretation. This states that every employer shall insure, and maintain insuranceagainst liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment. In order to give proper effect to the protective purpose of that legislation, the Act requires insurance on a causation basis [47]. There is no difficulty in treating the word contracted as looking to the causation of a disease, rather than its development or manifestation. The word contracted used in conjunction with disease looks to the initiating or causative factor of the disease [49]. While the word sustained may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later [50]. In relation to the second issue, the question is whether the EL policies cover employers liability for mesothelioma arising under the special rule in Fairchild/Barker [71]. Under that rule the law accepts a weak or broad causal link between the employers negligence and the employees mesothelioma. When construing the EL policies the concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule [74]. The purpose of the EL policies was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies [88]. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurers obligation to indemnify the employer [74]. Lord Phillips dissents on the second issue. The special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. This conclusion is not affected by section 3 of the Compensation Act 2009, which did not alter the jurisprudential basis of the Fairchild/Barker approach [132] [133].
The Supreme Court unanimously dismisses the Secretary of States Appeal holding that the Reception Directive can apply to second and subsequent applications for asylum. Lord Kerr delivered the judgment of the Court. The Supreme Court identified two principal issues in the appeal: (1) whether Article 11 of the Reception Directive applies to a person who has had an application for asylum in the United Kingdom finally determined against him when he makes a further application for asylum, and (2) whether the Court should apply for a reference to the European Court of Justice for a preliminary ruling on the proper interpretation of the Reception Directive, in particular whether it is intended to cover only the first application for asylum made by an individual to a Member State (paras [8][9]). In relation to the first issue, considering the context in which the Reception Directive was made, it is clear that it was part of a comprehensive charter dealing with the various aspects of asylum applications. The Procedures Directive, which was adopted ten months after the Reception Directive was required to be transposed into national law and sets out minimum standards on procedures in Member States for granting and withdrawing refugee status, is part of that charter. Article 2 of both Directives contain virtually identical definitions for the terms application for asylum and applicant or asylum seeker. There can be no doubt that subsequent applications for asylum come within the definitions contained in Article 2 of the Procedures Directive. For the Secretary of State to be correct therefore, the expression application for asylum must be given a different meaning in each of two Directives. Whilst as a matter of general principle, later legislation should not operate to change the established meaning of an earlier enactment, the later legislation may give an insight into the proper interpretation of the earlier instrument. In any event, in this case the matter is put beyond doubt by an examination of the legislative history of the two measures (paras [14][15], [22][28]). The proposal for the Reception Directive makes it clear that it had always been intended not only that the definitions of applicant for asylum in both Directives should be the same but also that an application should not be regarded as having been subject to a final decision until all possible remedies had been pursued and determined. This can only mean that subsequent applications would fall within the definitions of application for asylum and asylum seeker in the Reception Directive. Accordingly, an application for asylum in the Reception Directive must be interpreted to include a subsequent application made after an original application has been determined and asylum seeker should be construed accordingly to include a person who makes such a subsequent application (paras [29][30]). Having decided to dismiss the appeals for the reasons set out above, the Court then considered the Secretary of States arguments that numerous anomalies would arise if the Reception Directive was held to apply to subsequent asylum claims. The Court concludes that none of the claimed anomalies leads to the view that it was intended that the Reception Directive should not apply to subsequent asylum applications. On the contrary, curious consequences would follow if the Reception were held not to apply to such applications (paras [33][42]). The Secretary of State further argued that if the Reception Directive is held to apply to subsequent applications for asylum, the potential for abuse of the system would be greatly increased. The Secretary of States concern was that applicants would bring wholly unmeritorious claims with the aim of delaying their removal and gaining access to the benefits that the Reception Directive confers. Whilst there was some force in the Secretary of States arguments in this context, the Court considers that the problem of unmeritorious applications should be dealt with not by disapplying the Reception Directive to all repeat applications but by identifying and disposing promptly of those which have no merit and ensuring that genuine applicants are not deprived of the minimum conditions that the Reception Directive provides for (paras [43][49]). On the second issue, the Court concluded, particularly in light of the legislative history of the Reception Directive and the Procedures Directive, that a reference to the ECJ was not required (paras [50][51]).
This appeal related to wills made by a Mr and Mrs Rawlings. They each intended to make wills leaving their respective estates to the other, and, if the other had already died, to the appellant, Mr Marley. Owing to an oversight by their solicitor (the Solicitor), Mr Rawlings signed the will meant for Mrs Rawlings, and Mrs Rawlings signed the will meant for Mr Rawlings. The Supreme Court concluded that each will was nonetheless valid (see [2014] UKSC 2), contrary to the conclusions reached by the High Court and the Court of Appeal. As a result, the appellant inherited the estate of Mr Rawlings which was in the region of 70,000. If the will had been invalid, the respondents would have inherited the estate. The question which now arises is how the costs of these proceedings should be borne. The appellant contends that this was ordinary hostile litigation, and the respondents should pay the appellants costs in all three courts. The Solicitors insurers (the Insurers) have made submissions in support of the appellants case. The respondents contend that all parties costs should come out of the estate, or, in the alternative, should be paid by the Solicitor. The respondents solicitors and counsel acted on a traditional basis in the High Court and the Court of Appeal, but in the Supreme Court were instructed on conditional fee agreements (CFAs), sometimes called no win, no fee arrangements. In a judgment given by Lord Neuberger, the Supreme Court unanimously decides that the Insurers should pay the costs of both parties in the High Court and Court of Appeal. In relation to the costs in the Supreme Court, the Insurers should pay the appellants costs, the respondents solicitors disbursements, and, the respondents two counsels fees, conditional on the respondents counsel disclaiming any entitlement to their success fees under their CFA. The position disregarding the CFAs If there had been no negligence on the part of the Solicitor, it would have been difficult to decide what order to make as between Mr Marley and the respondents. Where there is an unsuccessful challenge to the validity of a will, when the challenge is a reasonable one and based on an error which occurred in the execution of the will, the court often orders all parties costs to come out of the estate. On the other hand, there is considerable force in Mr Marleys argument that, although these proceedings involved a reasonable dispute over the validity of a will, it was ultimately hostile litigation to which the usual rule of loser pays should apply [6].This would be especially true given the small size of the estate, because an order that costs were paid out of the estate would deprive Mr Marley of any benefit from the litigation [7]. However, this is not a case where it could possibly be right to ignore the position of the Solicitor [8]. The problem in this case arose as a result of the Solicitors negligence, and the Insurers, on behalf of the Solicitor, had required Mr Marley to bring proceedings to seek to have the will the upheld. [9]. The appellant has a clear claim in tort against the Solicitor, who would therefore be required, in the event that costs were ordered to be paid out of the estate, to reconstitute the estate [11]. As the Insurers have underwritten the liability of the Solicitor, the right order to make in relation to the costs of both parties in the High Court and the Court of Appeal, and of the appellants in the Supreme Court, would be that the Insurers pay all those costs [12 13]. The respondents costs in the Supreme Court The position in relation to the respondents costs in the Supreme Court is complicated by the fact that their solicitors and two counsel were all instructed on CFAs. The solicitors are, in the light of the terms of their CFA, only entitled to recover their disbursements, so that must be the limit of the Insurers liability so far as the respondents solicitors costs in the Supreme Court are concerned [18]. As to each counsels fees, their CFAs would appear to entitle them each to their full fee if the respondents costs are paid out of the estate. In the light of the fact that the respondents lost, the Court considers that it would be quite wrong if their counsel recovered any success fee from the Insurers: they should be limited to their base fees [24]. But if the order simply recorded that only counsels base fees were to be paid by the Insurers, their 100% success fees may be recoverable from the respondents or else from the solicitors (and, if so, from the Insurers as disbursements) [25]. Accordingly, the Insurers will only be liable to pay the respondents counsels fees in the Supreme Court if both counsel disclaim their entitlement to a success fee [26]. Counsel subsequently confirmed that they disclaimed any entitlement which they may have under the CFAs to a success fee [28].
These two joined appeals raise the question of whether a property used wholly for commercial purposes may qualify as a house for the purposes of legislation governing the right to leasehold enfranchisement (i.e. the right of a lessee in certain circumstances compulsorily to acquire the freehold of the building from his/her landlord) [1]. In the Hosebay case, the respondents owned the leases of three buildings in central London which had originally been built as separate houses as part of a late Victorian terrace [10]. The leases restricted the use of the houses to use for residential purposes, but on the date when the respondent served notices on the appellants under s.8 of the Leasehold Reform Act 1967 (the 1967 Act) seeking compulsorily to acquire the freehold of the buildings, they were being used wholly as a self catering hotel [10,13]. In the Lexgorge case, the respondent owned the lease of a five storey building in central London also originally built as a house [16]. The terms of the lease restricted the use of the upper two floors of the building to residential flats [18]. On the date when the respondent served a notice under s.8 of the 1967 Act, the building was used wholly for office purposes [17]. The building was listed as a building of special architectural or historic interest, and English Heritages records described it as a terraced house [18]. The issue in both appeals was whether the properties constituted houses within the meaning of s.2(1) of the 1967 Act. This raised two separate but overlapping questions: (i) Were the buildings designed or adapted for living in? (ii) Were they houses reasonably so called? [8] Both elements of the definition were disputed by the appellants in the Hosebay case, but only second element of the definition was disputed by the appellant in the Lexgorge case [8]. The judge at first instance in each case concluded that the buildings were houses for the purposes the 1967 Act, and the Court of Appeal reluctantly upheld those decisions [1,2]. The Supreme Court unanimously allows both appeals. It holds that neither property constituted a house for the purposes of the 1967 Act on the date when the relevant statutory notice was served. The judgment of the Court is given by Lord Carnwath. The decision of the Court of Appeal was not the result intended by Parliament when, pursuant to the Commonhold and Leasehold Reform Act 2002, it removed the requirements of residence from the 1967 Act [3 5]. As far as possible, an interpretation of the 1967 Act which has the effect of conferring rights on lessees going beyond those which Parliament intended to confer should be avoided [6]. The first element of the definition of house in s.2(1) of the 1967 Act (i.e. designed or adapted for living in) looks to the identity or function of the building based on its physical characteristics, the second element (i.e. a house reasonably so called) ties the definition to the primary meaning of house as a single residence, as opposed to, for example, a hostel or a block of flats [9]. Both parts of the definition need to be read in the context of a statute which is about houses as places to live in, not about houses as pieces of architecture or features in a street scene [9]. As to the first part of the definition of house in s.2(1) of the 1967 Act, the words designed and adapted do not constitute alternative qualifying requirements, despite the literal meaning of the provision [34]. Context and common sense argue strongly against a definition turning principally on historic design, if that has long been superseded by adaptation to some other use [34]. The words is adapted in s.2(1) refer to the present state of the building and do not imply any particular degree of structural change [34,35]. As to the second part of the definition, the external and internal physical appearance of a building should not be treated as determinative of whether it is a house reasonably so called , nor should the terms of the lease be treated as a major factor [41]. The buildings in the Hosebay case were not houses reasonably so called [43]. The fact that they might look like houses and might be referred to as houses for some purposes was not sufficient to displace the fact that their use was entirely commercial [43]. It was unnecessary to decide whether the buildings were designed or adapted for living in [44]. The building in the Lexgorge case was also not a house reasonably so called because it was used wholly for office purposes [45]. The fact that it was designed as a house and is still described as a house for many purposes (such as architectural histories) was beside the point [45].
Lukaszewski (L), Pomiechowski (P) and Rozanski (R) are Polish citizens who are each the subject of a European Arrest Warrant (EAW) issued by the Polish court. Each is wanted in order to serve an existing sentence. L is wanted, in addition, to stand trial on ten charges of fraud. The fourth appellant, Halligen (H), is a British citizen whose extradition is sought to the USA under Part 2 of the Extradition Act 2003 (the Act) to face allegations of wire fraud and money laundering. All four appellants were arrested and brought before Westminster Magistrates Court. L, P and Rs extradition were ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Hs case was sent to the Secretary of State for her to decide whether H should be extradited. On 22nd December 2010, Hs extradition was ordered by the Secretary of State, and the order and a letter setting out the Secretary of States reasons were sent by post and fax (at either 15.48 or 16.48) to Hs solicitors on that same day. All four appellants were remanded in custody at HMP Wandsworth pending extradition. The permitted time period for giving notice of appeal against an extradition order was 7 days in the case of L, P and R, and 14 days in the case of H. L, P and R were each assisted by a prison officer working in the legal services department at HMP Wandsworth to complete a notice of appeal. The legal services department faxed the notices of appeal to the Administrative Court for filing and stamping, which faxed back a copy of the sealed front page to the legal services department. The legal services department then faxed to the Crown Prosecution Services (CPS), as legal representatives of the judicial authority of the state requesting surrender, a copy of the sealed front page together with a cover sheet. In the case of each of L, P and R, all this occurred within the 7 day permitted period. However, in each case, the CPS was not served with a full copy of the notice of appeal, sealed or unsealed, until after the 7 day time limit had expired. The High Court held it had no jurisdiction to hear the appeals. A notice of appeal had to be both filed and served within the non extendable permitted period, and must (a) identify the appellant, (b) identify the decision against which he seeks to appeal, and (c) set out at least the gist of the basis on which the appeal is sought to be presented. Accordingly, the purported notices of appeal were invalidly constituted and served out of time. Hs solicitors prepared a notice of appeal, attaching grounds of appeal, on 23rd December 2010. The notice of appeal was filed and stamped on 29th December 2011, well within the 14 day permitted period which expired at midnight on 4th January 2011. However, only on 5th January 2011 did Hs solicitors send the notice of appeal to the CPS by fax and to the Home Office by post (reaching the latter on 6th January 2011). H himself had written from prison by fax to the Home Office on 29th December 2010 asking them to accept the letter as notice & service of my intent to appeal that decision and stating that he had instructed solicitors for that purpose. The High Court held it had no jurisdiction to hear Hs appeal, that Hs letter of 29th December 2011 did not constitute a valid notice of appeal, and the Secretary of State should be treated as having informed H of her decision on 22nd December, not 23rd December, 2011, so that the purported notice of appeal was in any event served out of time. All four appellants appealed the decisions of the High Court to the Supreme Court. The Supreme Court allows all four appeals unanimously. Lord Mance gives the leading judgment of the Court. Lady Hale gives a separate concurring judgment. The requirement under the Act that a notice of an appeal be given within the relevant permitted period meant that it had to be filed in the High Court and served on all respondents to the appeal within such period (following the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL 2) [5], [17]. However, a generous view should be taken of this requirement, bearing in mind the shortness of the permitted periods under the Act and that what really matters is that an appeal should have been filed and that all respondents be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal [18]. In the cases of L, P and R, the irregularity involved in the absence of pages following the sealed front page of their notices of appeal was capable of cure. The CPS, having received in time the sealed front page of each notice of appeal, can have had no difficulty in identifying the decisions being appealed. It would be disproportionate if the practice followed by the court and the prison legal services department should lead to the appellants losing their right of appeal [19]. The Court regards Hs letter as notice to the Secretary of State of an appeal within the Act, albeit that the letter was highly irregular in its form [20]. However, even if it is accepted that Hs solicitors only received the relevant fax from the Secretary of State at 16.48, there was no basis for deeming the fax to have been received the following day. It follows that no notice of an appeal was given to the CPS within the permitted period, and Hs appeal is on its face impermissible as against both respondents [21]. In these circumstances, the question for the Court is whether the apparently inflexible time limits for appeals within the Act are subject to any qualification or exception [22]. Under Article 6(1) of the Human Rights Convention, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of any criminal charge against him. The Court is satisfied that extradition does not involve the determination of a criminal charge [31]. However, H, as a UK citizen, enjoyed a civil right to enter and remain in the UK as and when he pleased [32]. Proceedings under the Act, in that they may affect Hs freedom to remain in the UK, at least for the duration of foreign extradition proceedings, involve the determination of that civil right [32]. It follows that the extradition proceedings against H fall within Article 6(1) [33]. In the case of a UK citizen, the statutory provisions concerning appeals can and should be read (pursuant to the obligation of conforming interpretation under section 3(1) of the Human Rights Act 1998) as being subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1). Accordingly, the Court allows all four appeals and remits each appeal against extradition to the High Court to be heard there [19], [41].
These appeals concern the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, the deprivation must be authorised by a court or by the procedures known as the deprivation of liberty safeguards (DOLS) in the Mental Capacity Act 2005 (the Act) and subject to regular independent checks. P and Q (otherwise known as MIG and MEG) are sisters who became the subject of care proceedings in 2007 when they were respectively 16 and 15. Both have learning disabilities. MIG was placed with a foster mother to whom she was devoted and went to a further education unit daily. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG was moved from foster care to a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication. When the care proceedings were transferred to the Court of Protection in 2009, the judge held that these living arrangements were in the sisters best interests and did not amount to a deprivation of liberty. This finding was upheld by the Court of Appeal. P is an adult born with cerebral palsy and Downs syndrome who requires 24 hour care. Until he was 37 he lived with his mother but when her health deteriorated the local social services authority obtained orders from the Court of Protection that it was in Ps best interests to live in accommodation arranged by the authority. Since November 2009 he has lived in a staffed bungalow with other residents near his home and has one to one support to enable him to leave the house frequently for activities and visits. Intervention is sometimes required when he exhibits challenging behaviour. The judge held that these arrangements did deprive him of his liberty but that it was in Ps best interests for them to continue. The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities as P. The Supreme Court, unanimously in the appeal of P, and by a majority of 4 to 3 in the appeal of MIG and MEG, allows the appeals. MIG, MEG and P have all been deprived of their liberty. Lady Hale, with whom Lord Sumption agrees, gives the main judgment. Lord Neuberger agrees with Lady Hale in an additional judgment and Lord Kerr agrees with Lord Neuberger and Lady Hale, also in a separate judgment. Lord Carnwath and Lord Hodge give a joint judgment dissenting in the appeal of MIG and MEG. Lord Clarke agrees with them in an additional judgment. The DOLS were introduced into the Act following the case of HL v United Kingdom (2004) 40 EHRR 761, which found that the treatment of a severely mentally disabled adult after his informal admission to hospital amounted to a deprivation of his liberty by the hospital. Their purpose is to secure independent professional assessment of (a) whether the person concerned lacks the capacity to make his own decision about whether to be accommodated in the hospital or care home for care or treatment, and (b) whether it is in his best interests to be detained [8 9]. The European Court of Human Rights (ECtHR) has established general principles relating to the deprivation of liberty of people with mental disorders or disabilities, albeit that it has not yet had to decide a case involving, as here, a person without capacity, who appears content with their care placement, which is in a small group or domestic setting as close to home life as possible, and which has been initially authorised by a court [32]. The general principles make it clear that it is important not to confuse the question of the benevolent justification for the care arrangements with the concept of deprivation of liberty. Human rights have a universal character and physical liberty is the same for everyone, regardless of their disabilities [45]. What would be a deprivation of liberty for a non disabled person is also a deprivation for a disabled person [46]. The key feature is whether the person concerned is under continuous supervision and control and is not free to leave [49]. The persons compliance or lack of objection, the relative normality of the placement and the purpose behind it are all irrelevant to this objective question [50, 87]. It follows that in Ps case the judge applied the right test and his decision should be restored [51]. MIG and MEG were also both under continuous supervision and not free to leave the place where they lived. The deprivation of their liberty was the responsibility of the state and therefore different from similar constraints imposed by parents in the exercise of their ordinary parental responsibilities [54]. Accordingly the decisions of the courts below must set aside and a declaration made that their living arrangements constitute a deprivation of liberty within the meaning of s 64(5) of the Act. Periodic independent checks are needed for such vulnerable people to ensure that the arrangements remain in their best interests, although it is not necessary that the checks be as elaborate as those currently provided for in the Court of Protection or in the DOLS [57 58]. Lord Carnwath, Lord Hodge and Lord Clarke would have upheld the decision of the judge in both cases. They consider that the degree of intrusion is relevant to the concept of deprivation of liberty, and in the appellants cases the care regime is no more intrusive or confining than required for the protection and well being of the persons concerned [90]. The ECtHR has yet to decide a case of this kind and it is far from clear that it would adopt a universal test which disregarded any disabilities. It remains wedded to a case specific test [94]. They are concerned that nobody using ordinary language would describe persons living happily in a domestic setting, like MIG and MEG, as being deprived of their liberty [99].
BACKGROUND TO THE APPEAL This appeal required the Supreme Court to consider the defence of fair comment in defamation proceedings, in particular the extent to which the factual background giving rise to the comment had to be referred to with the comment itself and be accurately stated. The respondents are members of a musical group known as The Gillettes or Saturday Night at the Movies. The appellants provide entertainment booking services. The respondents appointed the appellants to promote their acts, entering into a contract which included a re engagement clause, under which any further bookings at the same venue in the following 12 months had to be made through the appellants. The appellants arranged a booking for the respondents at Bibis restaurant in Leeds. The respondents agreed to perform again at Bibis three weeks later without reference to the appellants. The first appellant emailed the first respondent to complain of the breach of the re engagement clause. The first respondent replied, contending that the contract was mearly (sic) a formality and holds no water in legal terms and that the other respondents were not bound by the re engagement clause as they had not signed the contract. The appellants thereafter posted a notice on their website announcing that they were no longer representing the respondents as they were not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract and that following a breach of contract Craig Joseph who runs The Gillettes and Saturday Night at the Movies has advised 1311 Events that the terms and conditions of contracts hold no water in legal terms (27.03.07). For this reason it may follow that the artists obligations for your booking may also not be met. The respondents issued proceedings for libel, alleging that the posting meant that they were unprofessional and unlikely to honour any bookings made for them to perform. The appellants relied principally on the defences of justification and fair comment. Both were struck out in the High Court. The Court of Appeal reinstated the defence of justification but upheld the striking out of fair comment. The Supreme Court unanimously allows the appeal and holds that the defence of fair comment should be open to the appellants. The substantive judgment is given by Lord Phillips (President), with some additional comments from Lord Walker. The elements of the defence of fair comment had been set out by Lord Nicholls in the Hong Kong case of Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777. His fourth proposition, namely that the comment must indicate in general terms the facts on which the comment is based, so that the reader was in a position to judge for himself how far the comment was well founded, had attracted criticism and was challenged by the appellants in this appeal [para 70]. The defence had originated in respect of comments about work products such as books and plays, which necessarily identified the product. It had been complicated by developments which extended the defence to cover the conduct of individuals, where this was of public interest. Sometimes the facts underlying the comment were notorious; at other times they might be only known to the person making the comment. The only defence to a bare comment which implied the existence of unidentified discreditable conduct was justification [para 89]. Fair comment could however be raised where the comment identified the subject matter general terms. Particulars could then be given in the defence which identified the features which led to the formation of the view expressed [para 96]. Lord Nicholls requirement, that readers should be in a position to evaluate the comments for themselves, could not be reconciled with the authorities [para 98]. This was so, even where the subject matter was not within the public domain. Today many people take advantage of the internet to make public comments and the defence would be robbed of much of its efficacy if readers had to be given detailed information to enable evaluation of the comment [para 99]. The fourth proposition should be re written as follows: Next, the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based. The Supreme Court agreed that there was a case for reform of a number of aspects of the defence of fair comment which did not arise directly in this case [paras 112 116]. The whole area merited consideration by the Law Commission or an expert committee. The only more general reform being made by this judgment was the re naming of the defence from fair comment to honest comment [para 117]. Applying the law to the facts of this case, the posting by the appellants referred to the breach of contract relating to the Bibis restaurant, and to the respondents email, and these facts could be relied on. The email arguably evidenced a contemptuous approach to the respondents contractual obligations to the appellants. The email as quoted arguably evidenced a contemptuous attitude to contracts in general. It would be a matter for the jury to decide whether the inaccuracy in the quotation made a significant difference [para 124]. The defence should therefore be reinstated.
The appellant was sentenced to an extended sentence of ten years imprisonment, comprising a custodial term of seven years and an extension period of three years. He was released on licence after serving two thirds of the custodial term, but was recalled to custody after committing a further offence. He then remained in prison until the sentence had been served in full. In these proceedings, he complains that he was not provided with appropriate rehabilitation courses following his recall to prison, contrary to article 5 of the European Convention on Human Rights (the Convention), as given effect in domestic law by the Human Rights Act 1998. The principal issue in this appeal is whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applies to prisoners serving extended sentences. The lower courts found that there was no violation of article 5. The Supreme Court unanimously dismisses the appeal, upholding the decision that there was no violation of article 5(1)(a). Lord Reed gives the lead judgment, with which the rest of the Court agrees. Previous decisions on Article 5(1)(a) In James v United Kingdom (2013) 56 EHRR 12 (James), the European Court of Human Rights (ECtHR) applied the general principle that article 5(1) requires the conditions of detention to be consistent with the purpose of the detention. Based on that principle the court concluded that after the punishment part (the tariff period) of an indeterminate sentence for public protection (IPP) has been served and the prisoner remains in detention for reasons of public protection, a real opportunity for rehabilitation should be provided [8 18]. The Supreme Court (UKSC) in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 (Kaiyam) accepted there was an obligation to provide life and IPP prisoners with a real opportunity for rehabilitation, but held this was not imposed by article 5(1). Rather, the duty was an ancillary duty in the overall scheme of article 5 and existed throughout the prisoners detention. James was not part of a clear and constant line of decisions. The UKSC was concerned that the approach in James might give prisoners a right to immediate release under the Convention [22 25]. The ECtHR in Kaiyam v United Kingdom (2016) 62 EHRR SE 13 rejected the article 5(1) complaint in Kaiyam as inadmissible on the basis that article 5(1)(a) does not require a real opportunity for rehabilitation during the tariff period, since this represents the punishment part of the sentence. The ECtHR declined to adopt the UKSCs analysis, and adhered to the approach in James. On the facts of Kaiyam, a real opportunity for rehabilitation had been provided to the applicants [32 36]. Whether the UKSC should align its approach with the ECtHR The question of whether the obligation to provide rehabilitation opportunities arises under article 5(1) (as the ECtHR held in James and Kaiyam), or is immanent in article 5 as a whole (as the UKSC held in Kaiyam), affects the substance of the obligation, including: the period during which the obligation applies, the standard of the duty, and the weight to be placed on the Secretary of States assessment of what amounts to a reasonable opportunity [38 41]. In light of this, the UKSCs approach in Kaiyam has resulted in the imposition of a duty on the prison authorities which is significantly different from, and more demanding than, the duty imposed by the Convention. This position is a departure from the usual situation in which the jurisprudence of the UK and the ECtHR aligns. As to the UKSCs concern in Kaiyam, noted above, the ECtHRs approach does not entail an obligation under the Convention to secure the applicants immediate release, as other remedies exist which can remedy the lack of opportunity for rehabilitation [42 43]. Accordingly, the UKSC should now adopt the same approach to the interpretation of article 5(1)(a) as the ECtHR in James, and cease to treat the obligation to provide opportunities for rehabilitation as an ancillary obligation implicit in article 5 as a whole. It is noted, however, that a high threshold has to be surmounted in order to establish a violation of the obligation [44 45]. Application to extended sentences Whereas the previous cases on the duty to provide an opportunity for rehabilitation concerned life or IPP sentences, the present case concerns extended sentences, which may be imposed pursuant to section 210A of the Criminal Procedure (Scotland) Act 1995. An extended sentence comprises a custodial term and an extension period for which the offender is to be on licence beyond the licence period under the custodial term. A court may impose an extended sentence if it considers the licence period under the custodial term to be insufficient for the protection of the public. When the prisoner subject to the extended sentence is released on licence, the licence remains in force until the end of the extension period. The licence may be revoked if the offender commits a further offence [46 55]. The duty to provide an opportunity for rehabilitation established in James should apply equally to prisoners detained during the extension period of an extended sentence, having regard to the indefinite (albeit not unlimited) duration of detention during the extension period, its purpose of protecting the public from serious harm, and the possibility of change in response to opportunities for rehabilitation. The rationale in James that rehabilitation opportunities had to be available to IPP prisoners where they were detained solely because of the risk they pose to the public, applies to prisoners detained during the extension period of an extended sentence [59 63]. Application to the present case In light of the various opportunities for rehabilitation provided to the appellant in the present case, there can be no doubt that he was provided with a real opportunity for rehabilitation during his custodial sentence and his extended sentence. The appellant was not left in limbo without sentencing planning and without any attempt to provide him with an opportunity to rehabilitate himself. On the contrary, there were courses provided and completed, regular planning meetings, efforts made to find appropriate rehabilitative work, and transfers to less restrictive conditions. The problem which resulted in the appellants serving the whole of his sentence was not the failure of the prison authorities to provide appropriate courses, but his own misconduct. There is no question of his detention during the extension period, or at any other point during his sentence, having been arbitrary [65 85].
On 22 September 2015 Bernadette Hilton was convicted of three offences contrary to section 105A of the Social Security Administration (Northern Ireland) Act 1972. Following conviction, Ms Hilton was committed to the Crown Court and that court was asked to make a confiscation order under section 156 of the Proceeds of Crime Act 2002. The application was heard by His Honour Judge Miller QC on 20 October 2016. He made a confiscation order in respect of 10,263.50, which was the equivalent of Ms Hiltons half share of her matrimonial home. Ms Hilton appealed against the order. The Court of Appeal decided that Section 160A(2) of the Proceeds of Crime Act 2002 required that, at the time of making a confiscation order, the Crown Court must give to anyone who is thought to hold an interest in the property an opportunity to make representations on whether a confiscation order should be made and, if so, in what amount. The failure to give Ms Hiltons estranged partner and the building society the chance to make representations was fatal to the decision of the judge and the confiscation order was thus invalid. The Director of Public Prosecution appeals to this Court. The Court of Appeal certified the following points of law of general public importance: 1. Where property is held by the defendant and another person, in what circumstances is the court making a confiscation order required by section 160A of the Proceeds of Crime Act 2002, in determining the available amount, to give that other person reasonable opportunity to make representations to it at the time the order is made? 2. If section 160A does so require, does a failure to give that other such an opportunity render the confiscation order invalid? The Supreme Court unanimously allows the appeal. It holds that the questions certified do not arise on the present appeal because a determination under section 160A was not made. Lord Kerr gives the judgment. The Proceeds of Crime Act 2002 provides for two stages to confiscation proceedings: the first is the making of the confiscation order itself and the second the order securing its enforcement. The first stage is dealt with in sections 156 and 163B and envisages that the making of a confiscation order should be straightforward, indeed quasi automatic [8]. Section 160A of the Act provides that (1) Where it appears to a court making a confiscation order that (a) there is property held by the defendant that is likely to be realised or otherwise used to satisfy the order, and (b) a person other than the defendant holds, or may hold, an interest in the property, the court may, if it thinks it appropriate to do so, determine the extent (at the time the confiscation order is made) of the defendants interest in the property. (2) The court must not exercise the power conferred by subsection (1) unless it gives to anyone who the court thinks is or may be a person holding an interest in the property a reasonable opportunity to make representations to it. (3) A determination under this section is conclusive in relation to any question as to the extent of the defendants interest in the property that arises in connection with (a) the realisation of the property, or the transfer of an interest in the property, with a view to satisfying the confiscation order, or (b) any action or proceedings taken for the purposes of any such realisation or transfer. The critical question is whether, at the stage of making the order, the Crown Court judge made a determination of the extent of Ms Hiltons interest in the jointly owned property under section 160A. If made on foot of such a determination, the confiscation order becomes immutable unless there is an appeal [11 14]. A determination under section 160A therefore effectively extinguishes the opportunity for third parties to make later representations. On the other hand, the judge can at this stage form a view of the extent of the interest of the person in question, here Ms Hilton, without making a determination under section 160A. Parliament intended this to be the case, as is evident from the provisions relating to the second, enforcement stage of a confiscation order [14]. In particular, section 199(8) provides that a court must not order enforcement unless it gives persons holding interests in the property a reasonable opportunity to make representations. This section is important because it was retained in the legislation despite the introduction of section 160A. Furthermore, subsection 8B to section 199 proceeds on the premise that section 160A and section 199 continue, in relevant circumstances, to co exist [16 18]. Reading these sections together, it is clear that section 160A does not purport to occupy the field. The opportunity to make representations at the enforcement stage continues to apply either because a determination under section 160A has not been made or because the conditions in section 199(8B) are met. The fundamental point is that, at the enforcement stage, third party rights may continue to be considered [18]. Essentially, therefore, where the court makes a section 160A determination, third parties must be afforded the chance to make representations at the stage of making the confiscation order, as provided for by section 160A(2). But where the court does not make a section 160A determination and rather simply forms a view, at this first stage of the process, of the extent of the interest of the person in question, it will have to give third parties the chance to make representations at the enforcement stage. Where the court does not make a section 160A determination, therefore, it is not incumbent upon it to give third parties the chance to make representations at the first stage of the process (the making of the order) because they will have the chance to do so at the second stage (enforcement) before the confiscation order is enforced. The Court of Appeals judgment is premised on the proposition that on every occasion that third party interests arise, the court must proceed under section 160A. This is contrary to the conclusion reached that the introduction of section 160A has not modified the opportunity available to the Crown Court to make a confiscation order other than under section 160A. The consequence of the Court of Appeals approach would involve a collapse of the traditional two stages the making of an order and the enforcement of it into one hearing with all the panoply of investigation of the merits of the rights of third parties, such as a former partner and the building society in the present appeal. This would inevitably introduce a cumbersome procedure to the making of the confiscation order [23]. This was not intended. The making of a confiscation order would no longer be straightforward, much less quasi automatic (see para [8]) if section 160A had to be applied in all its rigour in every case where third party interests arose [24]. The enactment of the section was designed to streamline the system, not to complicate it. section 160A simply introduces a procedure allowing third parties to make representations at the confiscation stage, but only where the Crown Court makes a determination under section 160A [27]. No determination under section 160A was made here [28]. For this reason, the answer to the questions certified is that they do not arise on the present appeal. The appeal is therefore allowed [29].
Melanie Rabone (Melanie) had a history of depression. On 4 March 2005, she tried to commit suicide and was admitted to Stepping Hill Hospital (the hospital) and she was diagnosed by Dr Meagher, a consultant psychiatrist, as suffering from a severe episode of a recurrent depressive disorder. By 18 March 2005, she had made a sufficient recovery to be discharged and she went on holiday for a week with her family: [2]. On 31 March, she cut both of her wrists with broken glass. Dr Meagher advised that she should be readmitted to the hospital, but no beds were available so on 6 April she was seen as an outpatient by Dr Cook, a senior house officer. On 11 April, Melanie tied a lamp flex around her neck. Melanie agreed to an informal admission to the hospital. Dr Cook noted that, if she attempted or demanded to leave, she should be assessed for detention under the Mental Health Act 1983. She was prescribed a course of drugs and kept under 15 minute observation. A full mental state examination was carried out on admission by a ward nurse, who assessed Melanie as a moderate to high suicide risk. On various occasions after 13 April, Mr Rabone, Melanies father, expressed his concerns that she was not improving and that she should not be allowed home too soon: [3] [4]. On 19 April, Dr Meagher returned from leave. He was told that Melanie was requesting home leave. On his late afternoon ward round, he met Melanie and Mrs Rabone, Melanies mother. He agreed to allow Melanie to have home leave for two days and nights. Mrs Rabone expressed concern about Melanie coming home for the weekend, but Melanie was keen to do so. On 20 April 2005, Melanie, aged 24, hanged herself from a tree: [1]. On 11 August 2006, Mr Rabone issued proceedings claiming damages in negligence on behalf of Melanies estate and under Article 2 (the right to life) of the European Convention on Human Rights (the Convention) on behalf of himself and Mrs Rabone: [9]. The estates claim was settled in May 2008 for 7,500 plus costs: [11]. In relation to the Article 2 claims, six issues arise on this appeal: (i) whether the operational obligation under Article 2 can in principle be owed to a hospital patient who is mentally ill but not detained; (ii) if so, whether the Respondent Trust breached that duty; (iii) if so, whether Mr and Mrs Rabone were victims within the meaning of the Convention; (iv) if so, whether they lost their victim status by reason of the settlement; (v) whether their claims were time barred; and, if not (vi) whether the Court of Appeal erred in holding that they would have awarded 5,000 each to Mr and Mrs Rabone if their claims had been established: [14]. The Supreme Court unanimously allows the appeal: (i) the operational obligation under Article 2 of the Convention is owed to a voluntary mentally ill hospital patient such as Melanie; (ii) the obligation was breached in this case; (iii) Mr and Mrs Rabone were victims for the purposes of Art 34 of the Convention; (iv) they had not lost this status by virtue of the settlement of the estates claim; (v) claims were not time barred; and (vi) the Court of Appeal was not wrong to interfere with the judges assessment of damages in the sum of 2,500 to Mr and Mrs Rabone. Lord Dyson gives the leading judgment, with which Lord Walker, Lady Hale, Lord Brown and Lord Mance agree. Lady Hale, Lord Brown and Lord Mance each add further comments of their own. This appeal concerns the positive duty imposed by Article 2 of the Convention on states to take preventative operational measures to safeguard an individuals life in certain circumstances: [12]. The central question in relation to the first issue is whether the admitted negligence of the Respondent in its treatment of Melanie is to be assimilated to the line of case law pertaining to negligent hospital treatment (in which case there is no duty under Article 2), or whether the fact that Melanie was a psychiatric patient (though not detained) means that this case should be assimilated to the class of cases where an operational duty arises: [20]. No European Court of Human Rights (ECtHR) decision was cited to the Court which clearly articulates the criteria by which such a duty exists in particular circumstances, but there are certain indicia which point the way: [22]. While there are differences between detained and voluntary psychiatric patients, these should not be exaggerated: [27]. Melanie was admitted to hospital because she was a real suicide risk. By reason of her mental state, she was extremely vulnerable. The Trust assumed responsibility for her; she was under its control. The difference between Melanies position and that of a hypothetical detained psychiatric patient would have been one of form not substance: [34]. The Trust owed Melanie the operational duty to take reasonable steps to protect her from the real and immediate risk of suicide. The risk of Melanies suicide was real; it was real enough for the expert psychiatrists to give evidence that all ordinarily competent and responsible psychiatrists would have regarded Melanie as being in need of protection against the risk of suicide: [38]. The risk existed when Melanie left hospital and continued during the two day period of home leave. It was therefore also an immediate risk: [40] [41]. As the decision to allow home leave was one that no reasonable psychiatric practitioner would have made, the Trust failed to do all that could reasonably have been expected to prevent the real and immediate risk of Melanies suicide and it breached its operational duty: [43]. The ECtHR has repeatedly stated that family members of the deceased can bring claims in their own right under Article 2 of the Convention: [44] [46]. A person ceases to be a victim where the domestic authority has provided adequate redress and has acknowledged, either expressly or in substance, the breach of the Convention: [49]. By settling the estates claim, Mr Rabone did not renounce their article 2 claim for damages for non pecuniary loss for their bereavement. No such claim was available in English law as damages for bereavement are only available for the loss of a child where the child is under 18: [58]. Nor was the 7,500 received by the estate adequate address: [59] [63]. Mr and Mrs Rabone are therefore victims and have not lost that status. A claim against a public authority for breach of a Convention right must be brought within a year of the act complained of or such longer period as the court considers equitable. The extension of time sought was less than four months, there is no suggestion that the evidence has become less cogent as a result of the delay, the Trust has suffered no prejudice by the delay, Mr and Mrs Rabone acted reasonably in not issuing proceedings and they have a good claim for breach of Article 2. Time should therefore be extended: [77] [79]. This was a bad case of breach of the Article 2 operational duty which merited an award well above the lower end of the range of awards. The Trusts challenge to the Court of Appeals assessment of 5,000 each therefore fails: [88].
The appellant, Miss Hounga, appears to have a current age of about 21. She is of Nigerian nationality and now resides in England. In January 2007, when she was aged about 14, she came from Nigeria to the UK under arrangements made by the family of the respondent, Mrs Allen, who is of joint Nigerian and British nationality and who resides in England with her children. Pursuant to these arrangements, in which Miss Hounga knowingly participated, her entry was achieved by her presentation to UK immigration authorities of a false identity and their grant to her of a visitors visa for six months. For the following 18 months Miss Hounga lived in the home of Mrs Allen and of her husband who, although formally a respondent to it, plays no part in this appeal. Although Miss Hounga had no right to work in the UK, and after July 2007 no right to remain in the UK, Mrs Allen employed her, unpaid, to look after her children in the home. There Mrs Allen inflicted serious physical abuse on Miss Hounga and told her that, if she left the home, she would be imprisoned because her presence in the UK was illegal. In July 2008 Mrs Allen forcibly evicted Miss Hounga from the home and thereby dismissed her from the employment. This appeal proceeds on the basis that, by dismissing her, Mrs Allen discriminated against Miss Hounga in that on racial grounds, namely on ground of nationality, she treated Miss Hounga less favourably than she would have treated others. In due course Miss Hounga issued a variety of claims and complaints against Mrs Allen in the Employment Tribunal. The one claim which the tribunal upheld was her complaint of unlawful discrimination but only the part of the complaint which related to her dismissal. In this regard it ordered Mrs Allen to pay compensation to Miss Hounga for the resultant injury to her feelings in the sum of 6,187. The Employment Appeal Tribunal dismissed Mrs Allens cross appeal against the order. But the Court of Appeal upheld a further cross appeal brought by Mrs Allen against it and set it aside. The court held that the illegality of the contract of employment formed a material part of Miss Houngas complaint and that to uphold it would be to condone the illegality. It is against the Court of Appeals order that Miss Hounga brings her appeal. The Supreme Court unanimously allows the appeal in relation to Miss Houngas claim for the statutory tort of discrimination, committed in the course of dismissal. Miss Houngas claim in relation to alleged pre dismissal harassment on grounds of race or ethnic origin should be remitted to the tribunal to determine whether the ground identified by the Court of Appeal for possible disapplication of the grievance procedure existed and, if so, whether the complaint was established. Lord Wilson (with whom Lady Hale and Lord Kerr agree) gives the lead judgment. Lord Hughes (with whom Lord Carnwath agrees) gives a concurring judgment. The main legal issue is whether the Court of Appeal was correct to hold that the illegality defence defeated the complaint of discrimination [23]. Lord Wilson holds that the application of the defence of illegality to claims in tort is problematic [25]. The Court of Appeal has held in a previous case that the defence of illegality to a complaint of discrimination should succeed only if there is an inextricable link between the complaint and the claimants illegal conduct. If the test applicable to Mrs Allens defence of illegality is that of the inextricable link, Lord Wilson would hold the link to be absent. Entry into the illegal contract on 28 January 2007 and its continued operation until 17 July 2008 provided no more than the context in which Mrs Allen then perpetrated the acts of physical, verbal and emotional abuse by which, among other things, she dismissed Miss Hounga from her employment. But Lord Wilson proceeds to ask whether the inextricable link test is applicable to Mrs Allens defence. [40] The defence of illegality rests upon the foundation of public policy. It is necessary, therefore, first to ask what aspect of public policy founds the defence and, second to ask whether there is another aspect of public policy to which application of the defence would run counter. [42] On the first question, concern to preserve the integrity of the legal system is a helpful rationale of the aspect of policy which founds the defence but the considerations of public policy which militate in favour of applying the defence so as to defeat Miss Houngas complaint scarcely exist. [45] On the second question, the facts disclose that Mrs Allen and her family were guilty or close to being guilty of trafficking Miss Hounga from Nigeria to England. The UK authorities are striving in various ways to combat trafficking and to protect its victims. The decision of the Court of Appeal to uphold Mrs Allens defence of illegality to Miss Houngas complaint runs strikingly counter to this prominent strain of public policy. The public policy in support of the application of that defence, to the extent that it exists at all, should give way to the public policy to which its application is an affront. [52] Lord Hughes concludes that Miss Hounga succeeds in her appeal on the ground that there is insufficiently close connection between her immigration offences and her claims for the statutory tort of discrimination. But it is not possible to read across from the law of human trafficking to provide a separate or additional reason for this outcome. Even if one assumes in Miss Houngas favour that her treatment by Mrs Allen in England amounted to slavery or forced labour, and even if one assumes, without any findings of fact, that Mrs Allen brought her to England with the purpose of so treating her, she does not appear to have been compelled to commit the immigration offences which she certainly did commit. [67]
Part 5A of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) is headed Article 8 ECHR: Public Interest Considerations. Section 117A applies where a court or tribunal needs to determine whether an immigration decision breaches a persons right to respect for private and family life. In considering the public interest question whether an interference is justified under Article 8(2) the court must have regard to the considerations listed in section 117B and, in cases concerning the deportation of foreign criminals, to the considerations in section 117C. A foreign criminal is a person who is not a British citizen and who is convicted of an offence in the UK that attracted a sentence of at least 12 months, caused serious harm, or is a persistent offender. Section 117B includes a provision that where a person is not liable to deportation as a foreign criminal, the public interest does not require the persons removal if that person has a genuine and subsisting relationship with a qualifying child and it would not be reasonable to expect the child to leave the UK. A qualifying child is a person under 18 and is a British citizen or has lived in the UK for a continuous period of seven years or more. Section 117C provides that deportation of foreign criminals is in the public interest but, if sentenced to less than four years imprisonment, there is an exception where there is a genuine and subsisting parental relationship with a qualifying child, and the effect of deporting the person would be unduly harsh on the child. Three appellants (KO, IT and NS) argue that when determining whether it is reasonable to expect a child to leave the UK, or whether the effect of deportation of a person would be unduly harsh on their child, the tribunal is only concerned with the position of the child and not with the conduct of the parents. The respondent argued that both provisions require a balancing exercise, weighing the impact on the child against the wider public interest. The fourth appeal (Pereira, regarding AP) concerns immigration rule 276ADE(1)(iv), which provides that leave to remain on the grounds of private life should be granted to an applicant who is under 18, has lived continuously in the UK for seven years, and whom it would not be reasonable to expect to leave the UK. APs application was refused on the basis that it was reasonable for him to accompany his parents to their country of origin. The Supreme Court unanimously dismisses the appeals. Lord Carnwath gives the sole judgment, with which the other Justices agree. General approach The purpose of Part 5A of the 2002 Act is to produce a straightforward set of rules and to reduce the need for discretionary judgement when taking account of public interest or other factors not directly reflected in the wording of the statute. It also presumed that those rules are intended to be consistent with the general principles relating to the best interests of children [15]. The specific provisions Rule 276ADE(1)(iv) contains no requirement to consider the criminality or misconduct of a parent as a balancing factor and such a requirement cannot be read in by implication [16]. Section 117B of the 2002 Act does not include criminality as a consideration [17]. However, it is inevitably relevant to consider where the parents, apart from the relevant provision, are expected to be, as it will normally be reasonable for the child to be with them. To that extent the record of the parents may become indirectly material if it leads to them having to leave the UK. It is only if it would not be reasonable for the child to leave with them that the provision may give the parents a right to remain [18]. In section 117C of the 2002 Act, unduly harsh introduces a higher hurdle than that of reasonableness under section 117B. Unduly goes beyond a level of harshness that may be acceptable or justifiable in the relevant context. It does not require a balancing of relative levels of severity of the parents offence, other than is inherent in the distinction drawn by the section itself regarding length of sentence, and it does not require very compelling reasons [23]. The cases KO and IT concerned section 117C of the 2002 Act. In KO the Upper Tribunal judge was wrong to decide that he should take account of the criminality of the parent in applying the unduly harsh test [26, 32]. However, this did not affect the correctness of his conclusion, as his overall approach seemed no different to that which the Supreme Court accepts as correct [33 36]. In IT the Court of Appeal was wrong to introduce a compelling reasons test and to proceed on the basis that the assessment of harshness required the nature of offending to be considered [42]. However, the First tier Tribunal had erred in proceeding on the basis, unsupported by the evidence, that ITs child, as a British citizen, could not be expected to relocate outside the UK [44]. The Supreme Court confirms the order of the Court of Appeal for remittal to the Upper Tribunal [45]. NS concerned section 117B of the 2002 Act. The parents had falsely claimed to have completed a postgraduate course in order to obtain leave to remain [46]. The Upper Tribunal judges conclusion, read in its full context, did not involve any error of approach. He was entitled to regard the parents conduct as relevant to the extent that it meant they had to leave the country, and to consider the position of the child on that basis [51]. Pereira concerned rule 276ADE(1)(iv). The Court of Appeal ordered that the case should be remitted to the Upper Tribunal for a fresh determination and it did not limit the issues before the tribunal. As AP is now aged 19 he is in principle qualified for leave to remain under rule 276ADE(1)(v) and so the appeal may be disposed of by agreement. If not, it will fall to be considered in accordance with the law stated in this judgment. No further order is required [54 56].
In March 2011 the Metropolitan Police arrested two military officers on suspicion of having committed offences under the Official Secrets Act 1989. The alleged offences concerned suspected leaks of top secret information from meetings of the COBRA Cabinet security committee to the security editor of British Sky Broadcasting Limited (BSkyB). The investigation against these officers has since been dropped, but the case has continued due to the importance of the legal issue raised. Having arrested these officers, the police informed BSkyB that a criminal investigation had begun and sought disclosure of various documents, including copies of all emails between the security editor and the officers since October 2010. On 14 April 2011 the police served an application for a production order under the Police and Criminal Evidence Act 1984 on BSkyB, supported by a statement signed by a Detective Sergeant Holt (DS Holt). The Police and Criminal Evidence Act 1984 (the 1984 Act) consolidated various police powers to obtain evidence for a criminal investigation. Generally, a magistrate may issue a search warrant on an application by a police constable made ex parte without any other parties being aware or present. However, this process does not apply to material which is acquired or created for the purposes of journalism, and is in the possession of a person who acquired or created it for the purposes of journalism. Such material must be sought by a special procedure under Schedule 1 to the 1984 Act, which requires an application for a production order to be made to a Crown Court judge and to be heard inter partes with any other affected parties present in court. The polices application for the production order was heard on 26 April 2011 and 3 May 2011 by a Crown Court judge in the Old Bailey, with both the police and BSkyB present. Both sides put in skeleton arguments and witness statements. The police made an application to adduce further evidence from DS Holt in the absence of BSkyBs representatives. BSkyB objected to that course of action and raised other objections to the application. The judge allowed DS Holt to give evidence in the absence of BSkyBs representatives, and made the production order. BSkyB sought judicial review of the judges decision. The Divisional Court quashed the production order. It held, applying the Supreme Courts judgment in Al Rawi v The Security Service [2011] UKSC 34, that it was procedurally unfair for BSkyB to have had an order made against it without full access to the evidence on which the polices case was based and the opportunity to comment on or challenge that evidence. The police appealed. The Supreme Court unanimously dismisses the appeal. The judgment of the Court is given by Lord Toulson, with whom the other Justices agree. The principle in Al Rawi applies to civil and criminal trials, and requires that any evidence used in such trials be disclosed to all parties. However, this case does not involve a trial but a statutory procedure designed to gather evidence for a possible case from a third party. As a generality, the Al Rawi principle should not be applied to such applications, since they do not involve the determination of substantive legal rights. An application under Schedule 1 to the 1984 Act to obtain journalistic material is however special, and is likely to involve the journalists legal rights. Parliament had recognised this when it legislated that such an application should be heard inter partes. The exclusion of one party from some or all of the evidence is inconsistent with the nature of an inter partes hearing. The principle in Al Rawi is that, in a civil or criminal trial, it is not permissible for one party to be prevented from seeing evidence relevant to the other partys case. There are however a number of classes of case where departure from this rule can be justified for special reasons in the interests of justice. These include child welfare proceedings and proceedings involving the protection of confidential information [23]. This case does not involve a trial, but a statutory procedure designed to gather evidence for a criminal case. In general, the Al Rawi principle should not be applied to an application made by a party to litigation or prospective litigation to use the procedural powers of the court to obtain evidence for the purposes of the litigation from someone who is not a party or intended party to the litigation. Such an application does not involve the determination of substantive legal rights as between the applicant and the respondent [24 28]. However, the statutory procedure in this case is a special one. An application to obtain journalistic material is a highly sensitive and potentially difficult area, which is very likely to involve the journalists legal rights. This has been recognised by Parliament, which has established the special procedure under Schedule 1 of the 1984 Act [26, 29]. Parliament has required, by that special procedure, that an application for a production order shall be made inter partes. As a result, when that application is made, there is a discrete legal issue between the applicant (here the police) and the respondent (here BSkyB). Equal treatment of the parties to that issue requires that each should know what material the other is asking the court to take into account in making its decision, and should have a fair opportunity to respond to it. The Crown Court judge in this case should not have taken into account evidence from which BSkyB was excluded [30 31]. For the avoidance of doubt, this does not prevent a court hearing a public interest immunity (PII) application in relation to a production order ex parte. In a PII application the issue is whether the evidence is to be admitted at all. If the evidence is to be admitted in support of a production order, however, the inter partes nature of the hearing is inconsistent with that evidence being given ex parte [32].
The two appeals before the Court relate to judicial review proceedings concerning the treatment of Mr Michael Stone. In 1988, Mr Stone attacked a group of mourners at Milltown Cemetery, Belfast, killing several. One of them was the brother of the appellant, Mrs McGuinness. In 1989, Mr Stone was convicted and sentenced to life imprisonment and certain concurrent terms of imprisonment, with a recommended tariff of 30 years imprisonment. The Belfast Agreement of 1998 between the United Kingdom and Irish governments introduced an early release scheme for certain prisoners convicted of crimes related to sectarian violence in the Troubles. The Northern Ireland (Sentences) Act 1998 (the 1998 Act) gave effect to that part of the Belfast Agreement. Mr Stone made an application under the 1998 Act to the Sentence Review Commissioners (the SRC) seeking early release. In 1999, the SRC made a determination that Mr Stone was eligible for early release. Mr Stone was released on licence on 24 July 2000. In 2006, Mr Stone committed further offences at Parliament Buildings, Stormont. The Secretary of State for Northern Ireland suspended his licence. In 2008, Mr Stone was convicted and received two determinate sentences of 16 years imprisonment and other determinate sentences of between one and ten years imprisonment, all to run concurrently. In 2011, the SRC revoked Mr Stones licence. In 2017, the Northern Ireland Prison Service referred Mr Stones case to the Parole Commissioners, notifying them that his tariff expiry date would be 21 March 2018, on the basis that the period during which Mr Stone had been released on licence should count towards his 30 year tariff period. In the event, the Parole Commissioners made a formal determination in 2018 that Mr Stone should not be released upon expiry of his tariff. Mrs McGuinness issued these judicial review proceedings to challenge the Prison Services notification of a tariff expiry date of 21 March 2018, on the ground that the Prison Service erred in law in including the period of release on licence in Mr Stones tariff. The Divisional Court of the High Court heard the case, deciding to treat it as a criminal cause or matter on a pragmatic basis, and certified a question of law of general public importance suitable for appeal to the Supreme Court under section 41 of the Judicature (Northern Ireland) Act 1978 (the 1978 Act). The Attorney General for Northern Ireland intervened in the appeal to dispute the assumption that Mrs McGuinnesss application for judicial review constituted a criminal cause or matter and to challenge the Supreme Courts jurisdiction to hear the appeals. The Supreme Court unanimously holds that the present proceedings do not constitute a criminal cause or matter, with the result that the Court does not have jurisdiction to consider the appeals. Lord Sales gives the judgment, with which all the members of the Court agree. Section 41 of the 1978 Act provides for an appeal to the Supreme Court from any decision of the High Court in a criminal cause or matter [21]. The phrase a criminal cause or matter has been used in two different statutory contexts: first in provisions governing rights of appeal; and second in section 6 of the Justice and Security Act 2013 (the JSA 2013) in relation to a special closed procedure for secret intelligence material in court proceedings. As accepted by the Supreme Court in R (Belhaj) v Director of Public Prosecutions (No 1) [2018] UKSC 33; [2019] AC 593, the statutory context of section 6 of the JSA 2013 is different from that of section 41(1) of the 1978 Act [24]. The Supreme Court reviews the history of the phrase from its first use in section 47 of the Supreme Court of Judicature Act 1873 to the 1978 Act, which replicated in Northern Ireland the appeal system of England and Wales [25] [56]. Two basic features of the regime of appeal rights are important. First, the appeal rights in relation to a High Court decision in a criminal cause or matter are directed primarily to maintaining the coherence of the legal system rather than rectifying specific errors. An appeal to the Supreme Court is only possible if a point of law of general public importance is certified [66]. Second, in contrast, in all other cases appeal rights from the High Court to the Court of Appeal are directed to ensuring that errors at first instance in individual cases can be rectified. No showing of public importance is required [67]. The leading case on the meaning of the phrase a criminal cause or matter is that of the House of Lords in Amand v Home Secretary [1943] AC 147. The approach set out in that decision requires consideration of the proceedings which underlie those in the High Court. A criminal cause or matter will be: (a) one that puts the applicant in jeopardy of criminal punishment; and (b) where that punishment is the direct outcome of the proceeding [66], [77]. The issue raised in the present case does not relate to the commencement or conduct of any underlying criminal process involving Mr Stone. He is not subject to any outstanding undetermined criminal charge on which he will be tried and may be subjected to sentence. The present proceedings are concerned with whether his past criminal sentence has been correctly understood and implemented. The High Court decision was therefore not in a criminal cause or matter and the relevant right of appeal is to the Court of Appeal, not the Supreme Court [78]. As a result, and because the Supreme Court is likely to be assisted by consideration by the Northern Ireland Court of Appeal on the operation of the 1998 Act, should the case return for consideration, the Supreme Court does not think it appropriate to say anything about the merits of the appeals [96].
The appellant arrived in the UK in 2003 as a refugee from Iran, where she had been subject to imprisonment and torture. She gained indefinite leave to remain in 2009, the year in which she applied to the respondent council for accommodation as a homeless person. Part VII of the Housing Act 1996 includes the statutory provisions under which local housing authorities are required to secure provision of suitable accommodation for a person who is homeless and in priority need, and has not become homeless intentionally. Sub sections 193(7) and (7F) contain the critical provisions in this case, dealing with the circumstances in which that duty ceases, namely when the applicant refuses a final offer of accommodation. However, the housing authority shall not make a final offer of accommodation unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer. In November 2012 the respondent offered the appellant accommodation in Norland Road, London in a first floor, two bedroom flat. The appellants concerns about the physical features of the property (including the small size of the windows) were first raised in correspondence of 29 November 2012, including a letter from the appellants therapist and her GP, and in a solicitors letter of 30 August 2013. The appellant ultimately refused this final offer of permanent accommodation at the property on the basis that it had features which reminded her of her prison in Iran and which would exacerbate her post traumatic stress disorder, anxiety attacks and other conditions. The issue in the case turned not on the suitability of the accommodation, but whether it was reasonable for the appellant to accept it. Following a review these grounds were held to be insufficient to justify her refusal. The councils decision was upheld on appeal by the county court and by the Court of Appeal. The Supreme Court unanimously dismisses the appeal and confirms the decision of the review officer. Lord Carnwath gives the judgment, with which the other Justices agree. Two issues arise on this appeal: (1) whether the Supreme Court should depart from the its own decision in Ali v Birmingham City Council [2010] 2 AC 39 in light of the European Court of Human Rights (ECtHR) judgment in Ali v United Kingdom (2016) 63 EHRR 20, and if so to what extent; and (2) whether the reviewing officer should have asked himself whether there was a real risk that the appellants mental health would be damaged by moving into the accommodation offered, whether or not her reaction to it was irrational, and if so, whether he did in fact apply the right test [3]. Ali v Birmingham City Council In Ali v Birmingham City Council the Supreme Court decided that the duties imposed on housing authorities under Part VII of the Housing Act 1996 did not give rise to civil rights or obligations and so Article 6 of the European Convention on Human Rights did not apply to it. In Ali v United Kingdom the ECtHR held that Article 6.1 did apply, but accepted that in any event the procedure applied under the Housing Act conformed to its requirements [18]. The review of the domestic authorities shows a continuing debate on this issue, against the backdrop of uncertain Strasbourg jurisprudence. The unanimous judgment of the Supreme Court in Ali v Birmingham City Council was intended to settle the issue at domestic level after a full review of the Strasbourg authorities [32]. The Chamber in Ali v United Kingdom acknowledged the weight to be given to the interpretation of the relevant provisions by the domestic courts and it is thus surprising that it failed to address in any detail either the Supreme Courts reasoning or its concerns over judicialisation of the welfare services. The Chamber instead focused on two obiter remarks by Hale LJ (as she then was) and Lord Millett; its treatment of these two statements is open to the criticism that they were taken out of context [33, 34]. Further questions can also be raised about the Chambers reliance on the decision in Schuler Zgraggen v Switzerland as an example of entitlement subject to discretion: the statute in question gave a right to a full invalidity pension where incapacity of at least 66.66% was established. It is hard to see any fair comparison with the range of factors to which authorities are entitled to have regard in fulfilling their obligations under the housing legislation [35]. The Courts duty under the Human Rights Act 1998 is to have regard to the decision of the Strasbourg court Section. There appears to be no relevant Grand Chamber decision on the issue, but the Supreme Court would normally follow a clear and constant line of chamber decisions. In Ali v United Kingdom it is apparent from the Chambers reasoning that it was consciously going beyond the scope of previous cases and its answer to Lord Hopes concern that there was no clearly defined stopping point to the process of expansion seems to have been that none was needed. That is a possible view, but one which should not readily be adopted without full consideration of its practical implications for the working of the domestic regime [36]. This is a case in which the Supreme Court should not regard the Chambers decision as a sufficient reason to depart from its own fully considered and unanimous conclusion in Ali v Birmingham City Council. It is appropriate to await a full consideration by the Grand Chamber before considering whether (and if so how) to modify the domestic position [37]. The reviewing officers approach The appeal on this issue well illustrates the relevance of the warning against over zealous linguistic analysis. This is not to diminish the importance of the responsibility given to housing authorities under the 1996 Act (and reinforced in the case of disability by the Equality Act 2010). The decision letter viewed as a whole reads as a conscientious attempt by a hard pressed housing officer to cover every conceivable issue raised in the case: he clearly understood the importance of considering her mental state against the background of her imprisonment in Iran [39]. Although the officer did not in terms address the appellants claim to have suffered a panic attack, it is hard to criticise him for giving little weight to an incident which she had not mentioned at the time, nor apparently to her medical advisers. The issue for him was not her immediate reaction on one short visit, but show she would reasonably have been expected to cope with living there in the longer term. On that he was entitled to give weight to the medical evidence submitted by her, and consider how far it supported her case [40]. It might well have been unreasonable to offer her accommodation with very small dark rooms without windows at a normal height and looking out onto everyday life, but that was not a reasonable description of this particular property, nor a sufficient ground for her not accepting it. There is no difficulty in understanding the officers reasoning overall, nor does it disclose any error of law [41].
The appellant is a Turkish airline, largely owned by Mr Bagana. Prior to its liquidation, the respondent was a holiday tour company which had been wholly owned by Mr Aydin. The respondent, by its liquidator, sued the appellant in relation to two agreements between the parties. Rose J held that the appellant had dishonestly assisted Mr Aydin in defrauding the respondent and that it should pay damages to it in the sum of 3.64 million. The appellant was granted permission to appeal to the Court of Appeal against the order of Rose J. By an application made under then Rule 52.9(1)(c) of the Civil Procedure Rules, the respondent requested that the court should impose on the appellant a number of conditions for the continuation of its appeal. One requested condition was that the appellant should pay into court the sum of 3.64 million which Rose J had awarded to the respondent, on the basis that the appellant was likely to have no other assets even temporarily in England and Wales. The appellant disputed the imposition of this condition, but it did not allege that the disputed condition would stifle its appeal. By order dated 11 June 2015, Floyd LJ concluded that there was a compelling reason for imposing a condition and required that the appellant, as a condition for the continuation of its appeal, pay into the court (or otherwise secure payment of) 3.64 million by 9 July 2015. The appellant did not pay the sum into court. On 14 January 2016 Patten LJ heard the anticipated application by the respondent for dismissal of the appeal, together with a cross application by the appellant for discharge of the condition on the ground that payment of that sum was now beyond its means and its continuation would stifle the appellants appeal. Patten LJ held that the appellants appeal should be dismissed on the grounds that in exceptional circumstances the ability of a third party to provide funds, in this case Mr Bagana, could be taken into account in assessing the likelihood that a company could make a payment into court. Patten LJ stated that Mr Bagana has decided not to fund the payment by the company and concluded that the appellant had not established that the condition for payment would stifle its appeal. The appellant alleges that Patten LJ erred in his application of the relevant principles and in concluding that its relationship with Mr Bagana was such as to defeat its complaint that the condition for payment would stifle the appeal. The Supreme Court by a majority of 3 to 2 allows Onur Air Taimacilik As appeal. It remits both applications to Patten LJ to determine the appellants application for discharge of the condition by reference to the correct criterion [26]. Lord Wilson gives the lead majority judgment, with which Lord Neuberger and Lord Hodge agree. Lord Clarke and Lord Carnwath give dissenting judgments. Principles To stifle an appeal is to impose a condition which prevents an appellant from bringing it or continuing it. If an appellant has permission to bring an appeal, it is wrong to impose a condition which has the effect of preventing him from bringing it or continuing it. For the purposes of Article 6 of the European Convention on Human Rights, there will seldom be a fair hearing if a court which has permitted a litigant to bring an appeal then, by indirect means, does not permit him to bring it [12]. The appellant must establish on the balance of probabilities that a proposed condition would stifle the continuation of its appeal [15]. The courts can proceed on the basis that, were it to be established that the condition would probably stifle the appeal, the condition should not be imposed [16]. Even if an appellant appears to have no realisable assets, a condition for payment will not stifle its appeal if it can raise the sum [17]. However, the court must be cautious in respect of a suggestion that a corporate appellant can raise money from its controlling shareholder. The shareholders distinct legal personality must remain in the forefront of its analysis. The question should always be whether the company can raise the money and never whether the shareholder can raise the money [18]. The criterion which should be applied is as follows: Has the appellant company established on the balance of probabilities that no such funds would be made available to it, whether by its owner or by some other closely associated person, as would enable it to satisfy the requested condition? [23]. Where a company and/or its owner denies that the necessary funds would be made available to the company, the court should not take that assertion at face value. It should judge the probable availability of the funds by reference to the underlying realities of the companys financial position and to its relationship with its owner, including the extent to which he is directing its affairs and is supporting it in financial terms [24]. Application of principles to the present case The appellants application for discharge of the condition was refused by reference to the incorrect criterion. Patten LJ proceeded by reference to the Court of Appeals misconception in Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2011] EWCA Civ 2065 and Societe Generale SA v Saad Trading, Contracting and Financial Services Co and Al Sanea [2012] EWCA Civ 695, that in exceptional circumstances an order for a party, without apparent assets of its own, to make a payment into court could be justified by whether another person probably could advance the necessary funds to it irrespective of whether he probably would do so [25]. Dissenting Judgments Lord Clarke and Lord Carnwath would have dismissed the appeal. Patten LJ did not materially misstate the relevant principles or arrive at the wrong conclusion [27, 46]. Where a company does not have resources of its own and the issue is whether it has access to the resources of others, the question is whether the company would (not could) have had access to the resources [42]. There was no direct evidence from Mr Bagana on the question of whether he would have declined to provide funds. The evidence falls far short of establishing that the condition would stifle the appeal [44, 48].
The appellant, Taurus Petroleum Limited (Taurus), contracted with the respondent, State Oil Marketing Company of the Ministry of Oil, Republic of Iraq (SOMO). Disputes arose and in 2013 Taurus obtained an arbitral award against SOMO. Shell International Eastern Trading Co had purchased two parcels of crude oil from SOMO. The price was to be paid under two letters of credit, issued by the London branch of Crdit Agricole S.A. (CA) addressed to Central Bank of Iraq (CBI) instructing it to advise each credit to SOMO. Under each letter of credit, SOMO was identified as the beneficiary, but it was provided that payment was to be made in New York to the Iraq Oil Proceeds Account at the Federal Reserve Bank of New York. Each contained a promise on the part of CA in favour of CBI to make payment in that way, irrespective of any conflicting instructions which might be given by SOMO. The letters stated that the credit was subject to the Uniform Customs and Practice for Documentary Credits (2007 Revision) (UCP). SOMO presented conforming documents to CA. Taurus obtained an order permitting the award to be enforced as a judgment in England. Taurus also obtained a third party debt order (TPDO) in respect of the proceeds due under the credits, with a view thereby to satisfying SOMOs judgment debt to it, together with an associated receivership order. SOMO challenged these orders, which the High Court set aside. The Court of Appeal upheld that result, albeit for different reasons. Taurus appealed to the Supreme Court. The issues argued on appeal were: (i) whether SOMO was the sole creditor or a creditor at all of CA under the letters of credit, (ii) whether CAs obligations to CBI under the letters prevented the court from making a TPDO, (iii) the location of the debts and (iv) whether a receivership order was appropriate in the circumstances. The Supreme Court allows the appeal by a majority of three to two. Lord Clarke gives the lead judgment, and. Lord Sumption and Lord Hodge concurring judgments. Lord Neuberger and Lord Mance dissent. The interpretation of the letters of credit The court could make the TPDO only if CAs debt was owed to SOMO as the sole creditor, notwithstanding CAs obligation to make payment to an account in the name of CBI. [3, 9]. SOMO was the sole beneficiary of the letters of credit because: (i) the language of the letters expressly identifies SOMO as the beneficiary [18 19, 62 63, 76] and (ii) that conclusion fits with the use of the term beneficiary in articles 2 and 18 of the UCP, which must be considered in interpreting the letters and to which the credit was subject [19 20, 62, 76]. In the absence of a clear statement to the contrary, CAs primary obligation to make payment was owed to SOMO alone. CAs separate obligation, owed jointly to SOMO and CBI under each letter, was collateral to that primary obligation [23, 65, 79]. Lord Sumption adds that, if the parties had intended CBI to be the debtor, the obvious solution would have been a transfer or assignment of credit to CBI, as permitted by article 38 of the UCP [64]. Lord Sumption and Lord Hodge each reason that nothing in the terms of the letters shows any such transfer, and the terms expressly exclude that possibility [64, 77]. The location of the debt Debts have a location for legal purposes. If CAs debts were situated outside England and Wales, the court would be unable to make a TPDO in respect of them unless, under the law of the location, payment in compliance with the TPDO would discharge CA from those debts to the extent of CAs payment [29]. The debts were located in England, because that was where they were recoverable [30 31]. The Court of Appeal had been bound by its own reasoning in Power Curber v National Bank of Kuwait SAK [1981] 1 WLR 1233, so had instead concluded that the debts were located where they were payable. The reasoning in that case was not extensive, has not become well established, and was incorrect [32 41]. The effect of CAs obligations to CBI There is no independent rule that a TPDO can be made only in respect of property with which the judgment debtor can honestly deal. The rule is only that a TPDO cannot be made in respect of property which does not belong to the judgment debtor. Unpaid debts under the letters of credit were not CBIs property [45 46]. Lord Sumption and Lord Hodge each add that the TPDO modified CAs primary obligation, which was owed to SOMO and which was to pay money into CBIs account, so that payment in compliance with the TPDO discharged CA from its debt to SOMO. CAs collateral obligation to CBI was to discharge that primary obligation by a particular payment method. Once the primary obligation was discharged, that collateral obligation falls away. Compliance with the TPDO would consequently discharge CA from its liabilities to the extent of its payment. As a result, CAs obligations to CBI could not prevent the court from making the TPDO [70 71, 79]. The receivership order A receivership order is appropriate because: (i) it was predictable, in all the circumstances, that SOMO would be sued in England, under English law, for the purpose of enforcing the arbitral award if SOMO declined to honour that award; (ii) domestic and international policy favours the efficient recognition and enforcement of arbitration awards; (iii) it would be inconsistent to treat the arbitration award as a judgment of the English courts for enforcement purposes, whilst limiting the available enforcement methods on the basis of an insufficient connection to this jurisdiction [54 55]. CBIs account in New York is merely the conduit via which monies paid from CA pass onwards into the Iraqi government budget. There is no evidence that CA would be prejudiced by the receivership order. [56 58]. Dissenting judgments Lord Mance and Lord Neuberger give dissenting judgments. They each conclude that the letters of credit created debts which were owed to CBI alone [94 101, 126 138]. Lord Mance further considers that the TPDO would contravene the principle that a TPDO cannot place a judgment creditor (Taurus) in a better position than the judgment debtor (SOMO) in relation to the third party (CA) [90 91, 115]. There is no basis, in his opinion, for regarding CAs obligations to pay CBI as collateral to, or conditional on, some primary obligation to pay the proceeds to SOMO [112 113, 117]. Lord Neuberger reasons further that CAs compliance with the TPDO could not discharge any separate obligation owed to CBI, effectively requiring CA to pay the sums due under the credits twice: once pursuant to the TPDO, and once pursuant to its obligations to CBI. The TPDO was inappropriate for that reason [141] and/or because it would grant Taurus rights to the sums which prevailed over those of CBI, in circumstances where Taurus knew of CBIs prior rights [143].
In 1999 the Inland Revenue [now known as Her Majestys Revenue and Customs, HMRC] published a booklet known as IR20 and entitled Residents and Non Residents Liability to tax in the United Kingdom, which offered general guidance on the word residence and the phrase ordinary residence for the purposes of an individuals liability for UK income and capital gains tax. IR20 remained operative until 2009. The Appellants contend that, on its proper construction, IR20 contained a more benevolent interpretation of the circumstances in which an individual becomes non resident and not ordinarily resident in the UK than did the ordinary law; alternatively that prior to 2005 it was the settled practice of HMRC to adopt such a benevolent interpretation of IR20. Either the construction or the practice gave rise (so they say) to a legitimate expectation that the benevolent interpretation would be applied to determinations of their status for tax purposes and consequently HMRC should not have determined that, during the years relevant to them, they were resident or ordinarily resident in the UK. The First Appellants, Mr Davies and Mr James, contend that prior to 6 April 2001 they left the UK for the settled purpose of establishing and working full time for a Belgian company. Although their wives and Mr Davies daughters remained resident in the UK and although they returned frequently to the UK, albeit for short periods, they contend that they are entitled to be treated as non resident and not ordinarily resident in 2001 2002 by reference to paragraph 2.9 of IR20 since they had gone abroad for a settled purpose and had remained abroad for at least a whole tax year. The situation of the Second Appellant, Mr Gaines Cooper, is different from that of the First Appellants in that it has already been conclusively determined, by reference to the ordinary law, that he was resident and ordinary resident in the UK in the years relevant to him. He contends, however, that his status should instead be determined by reference to paragraphs 2.8 and 2.9 of IR20 or to the alleged settled practice and that, on either basis, he was not resident in the UK from 1993 to 2004 nor ordinarily resident here from 1992 to 2004. The High Court refused the Appellants permission to apply for judicial review of the determinations by HMRC that they were resident and ordinarily resident in the UK in the relevant years. The Court of Appeal granted them permission but dismissed their substantive applications. The Appellants appeal to the Supreme Court. The Supreme Court, by a 4 1 majority, dismisses the two appeals on the grounds that the proper construction of IR20 does not support the Appellants contentions and that there is insufficient evidence of any settled practice on the part of the HMRC by way of departure from the IR20 guidance. Lord Wilson gives the leading judgment; Lords Hope, Walker and Clarke give short concurring judgments. Lord Mance gives a dissenting judgment. An individuals status as being resident and ordinarily resident in the UK largely determines his liability for UK income tax and capital gains tax. In law an individual who has been resident in the UK ceases to be so resident only if he ceases to have a settled or usual abode in the UK per Levene v Inland Revenue Comrs [1928] AC 217 [13 Section 334 of the Income and Corporation Taxes Act 1988 (now replaced) also provided that an individual would nevertheless be deemed to have remained resident in the UK if he had left the UK for the purpose only of occasional residence abroad [15 17]. At law, an individual needs to effect a distinct break in the pattern of his life in the UK in order to become non resident per Reed v Clark [1986] Ch 1 [18 19]; this mandates a multifactorial evaluation of his circumstances [20]. But an individuals pursuit of full time employment abroad is likely to be sufficient to cause him to cease to be a UK resident and not to be deemed under the statute still to be a UK resident [21]. HMRC issued guidance on residence and ordinary residence in IR20. HMRC accepts that it is bound by whatever might be the proper construction of the guidance and that the guidance gave rise to a legitimate expectation that it would appraise any individuals case by reference to such guidance even if it failed to reflect the ordinary law [27]. The First Appellants contend that HMRC represented in IR20 that non residence was achieved if an individual left the UK to take up full time employment abroad, or left the UK permanently or for at least three years, or went abroad for a settled purpose and remained abroad for at least a whole tax year, provided in each case that any visits to the UK totalled less than six months in any one year and averaged less than 91 days each year [the day count proviso] [30]. The Second Appellant contends that HMRC thereby represented that it was sufficient for an individual to live abroad for at least three years and to satisfy the day count proviso, thus eliminating any need for consideration of whether he had effected a distinct break in the pattern of his life in the UK [31]. The majority holds that the proper construction of IR20, when read as a whole, does not support the Appellants contentions [45, 64]. Paragraph 2.1 indicated that an individuals claim to non residence would generate consideration of various aspects of his life with a view to the identification of its usual location [35]. The heading to paragraphs 2.7 to 2.9 namely Leaving the UK permanently or indefinitely required consideration of the quality of his absence from the UK [37]. Paragraph 2.9, which stated that if an individual had gone abroad for a settled purpose, he would be treated as not resident and not ordinarily resident if his absence from the UK had covered at least a whole tax year and he had met the day count proviso, could not be construed as a freestanding route to non residence since there was an express link to paragraph 2.8, which required an individual to leave indefinitely [41]. Although its exposition of how to achieve non residence should have been much clearer, IR20, taken as a whole, informed the ordinarily sophisticated taxpayer that he had to leave the UK permanently, indefinitely or for full time employment; had to do more than to take up residence abroad; and had to relinquish his usual residence in the UK. It also informed him that any subsequent returns to the UK had to be no more than visits and that any property retained in the UK by him for his use had to be used for the purpose only of such visits rather than as a place of residence [45]. He will have concluded that such requirements in principle demanded, and might well in practice generate, a multifactorial evaluation of his circumstances [45, 64] and, in summary, that he had to make a distinct break [45]. Alternatively, IR20 was so unclear as to communicate nothing to which legal effect might be given [47]. The majority holds that there was insufficient evidence that HMRC had departed from IR20 as a matter of settled practice [58]. Such a contention requires evidence that the practice was so unambiguous, so widespread, so well established and so well recognised as to amount to a specific commitment of treatment in accordance with it [49] but the Appellants evidence to this effect was far too thin and equivocal [58]. Lord Mance, dissenting, holds that the references to going abroad permanently or living outside the UK for three years or more in paragraphs 2.7 2.8 referred to the taxpayers intention regarding the duration of his absence rather than the quality of any absence or the nature of any return visits or continuing UK connections [89]. Paragraph 2.9 was designed to assist taxpayers who never intended to leave permanently or indefinitely, but went abroad for a settled purpose to engage in an overseas activity for an extended period of time of lesser duration [89]; or where the taxpayer could subsequently show he had acquired an intention to leave the UK permanently or that his actual absence covered three years from departure [90]. It would be remarkable if there were a requirement for a distinct break from life in the UK when no such requirement was clearly expressed [93] and other factors, including the day count proviso, militated against such a requirement [95; 96].
Oceancrown Ltd, Loanwell Ltd and Questway Ltd were part of a group of companies controlled by Ralph Norman Pelosi (Mr Pelosi senior). Norman Ralph Pelosi (Mr Pelosi junior) was the sole shareholder and director of Stonegale Ltd. The three companies controlled by Mr Pelosi senior went into administration in 2011. In November 2010, nine months prior to the companies entering administration, three properties were transferred to Stonegale Ltd and one property was transferred to Mr Pelosi junior directly. Conjoined proceedings were brought by the joint administrators of the three companies in respect of these alienations under section 242 of the Insolvency Act 1986, on the basis that these were gratuitous alienations (in lay terms, a gift by the insolvent party challengeable by liquidators or administrators). Stonegale Ltd and Mr Pelosi junior argued that the four dispositions under challenge were made by the companies for adequate consideration (a reasonable price). The Lord Ordinary held that the dispositions were gratuitous alienations, setting aside three of the dispositions and ordering Mr Pelosi junior to repay the 125,000 he had received for the sale of the fourth property. This decision was upheld by the Extra Division of the Inner House. Stonegale Ltd and Mr Pelosi junior appeal the decision to the Supreme Court. The Supreme Court unanimously dismisses Stonegale and Mr Pelosi juniors appeal. Lord Reed gives the judgment, with which the other Justices agree. Lord Reed finds that the Appellants submission that the administrators could have pursued a number of alternative remedies is not relevant to the issue which this court must determine, which is whether the Respondents are entitled to the remedy they have sought on the basis that the four dispositions are gratuitous alienations [17]. Lord Reed holds that the gratuitous nature of the alienations was clearly explained by the Lord Ordinary and is plain and obvious. Prior to the conveyances, the companies owned five properties: 110, 210, 260 and 278 Glasgow Road, and 64 Roslea Drive. The Anglo Irish Bank (the bank) held standard securities over each of these five properties, having made available to Oceancrown a secured facility in the region of 17.3 million, which was cross guaranteed by the other two companies [4]. In August 2010 the banks solicitors were informed by Mr Robert Frame, a solicitor of Miller Becket and Jackson (MBJ), of the details of the properties and the relevant sale price in relation to the release of the five properties from the banks securities. The banks solicitors were informed that the sale prices were as follows: 762,000 for 278 Glasgow Road; 200,000 for 110 Glasgow Road; 934,000 for 210 Glasgow Road; 450,000 for 260 Glasgow Road. They were also informed that 64 Roslea Drive was to be sold for 68,000, bringing the total sale price of the five properties to 2,414,000. This information was passed to the bank [6]. On 10 November 2010 the property at 278 Glasgow Road was disponed by Oceancrown for 762,000 to a company called Strathcroft Ltd, which was also owned by Mr Pelosi senior. On the same day, Strathcroft disponed the same property to Clyde Gateway for 2,467,500, a sum far in excess of an earlier valuation of 762,000. The Lord Ordinary found that Strathcrofts involvement was to provide a short lived intermediary between Oceancrown and Clyde Gateway, describing it as a cog in Mr Pelosis machine [7]. No sales had been agreed in respect of the other four properties [6]. Strathcroft, on the instructions of Mr Pelosi senior, authorised MBJ to send the bank the sum of 2,414,000 in respect of purchases of [the five properties] on 16 November 2010, and Mr Frame transmitted the money to the bank. The bank then executed discharges of the standard securities over all five properties. The Lord Ordinary found that the bank was misled in relation to the funds it received and that had it known that only 278 Glasgow Road was sold, whilst the overall reduction in bank indebtedness would have occurred, the bank would only have discharged the standard security over that property [8]. As a consequence of misleading the bank, Mr Pelosi seniors companies retained the other four properties valued at 1.525 million, free of the banks standard securities [9]. On 24 November 2010, 110, 210 and 260 Glasgow Road were disponed to Stonegale Ltd and 64 Roslea Drive was disponed to Mr Pelosi junior. Nothing was paid for these properties [10]. A loan agreement between Strathcroft Ltd and Stonegale Ltd signed by Mr Pelosi junior and dated 16 November 2010 which purported to enable the latter to finance the purchase of the properties at 110, 210 and 260 Glasgow Road was found by the Lord Ordinary to be a sham, concocted purely for the purpose of the defence of these proceedings [11]. Lord Reed finds that there was no reciprocity between the disposal of the four properties, which were gifted to Stonegale Ltd and Mr Pelosi junior, and the earlier payment to the bank. The transactions had the purpose and effect of diverting assets from the companies creditors, which was exactly what section 242 of the Insolvency Act 1986 is intended to prevent [17].
The issue in this appeal is whether certain policies adopted by the Department of Work and Pensions (DWP) in the administration of the welfare benefits system are, when applied to people with a reassigned gender, in breach of the Gender Recognition Act 2004 (the GRA), the Human Rights Act 1998 (the HRA) or the Equality Act 2010 (the EA). The appellant C has undergone gender reassignment from male to female. She was issued with a gender recognition certificate (GRC) in 2006. Since June 2010 she has been unemployed, apart from a period in 2015 16. In order to receive Jobseekers Allowance (JSA) she has to attend a Jobcentre Plus (JCP) office in person every two weeks. The DWP uses a centralised database, the Customer Information System (CIS), to record information about each of its customers, including his or her current sex, the fact that he or she was previously recorded as having a different sex (if applicable), his or her current name and title, and his or her former names and titles (if applicable), the fact that a person has a GRC and its date, and the reason for a change of recorded sex being gender reassignment (if this is the case). These data are held for the life of the individual concerned and for 50 years and a day thereafter (the Retention policy). This is because gender at birth at present remains relevant to the calculation of state pension entitlement, and in order to detect fraud. The fact of a GRC and the reason for a change of recorded sex being gender reassignment is no longer visible to front line staff, but any previous name, title or gender is visible. Access to an individuals CIS record is not required for the routine issue of benefit payments, but it will be required, for example, to make routine changes, such as a change of address. However, the DWP also has a Special Customer Records policy (the SCR policy) which applies to certain categories of customer who require extra protection for their privacy and is routinely applied to transgender customers unless they ask otherwise. This requires specific authorisation for access. This has the effect that there are delays in accessing the account to authorise payment and it alerts the front line staff to the probable reason for the restricted access. C has suffered distressing incidents at JCP offices when her transgender status has been openly referred to. After exploring possible alterations with the DWP, C issued proceedings in 2012. The High Court made a declaration that the Retention Policy was in breach of the right to respect for private life protected by article 8 of the European Convention on Human Rights (ECHR) as it was not sufficiently clear and accessible to be in accordance with the law. It has now been clarified. Her appeal to the Court of Appeal against the dismissal of her other claims was dismissed. The Supreme Court unanimously dismisses the appeal. The Retention and SCR policies are not unlawful under the GRA, the HRA or the EA. Lady Hale gives the only substantive judgment. Lawfulness under the GRA S 9 GRA provides that where a GRC is issued a persons gender becomes for all purposes the acquired gender. It does not rewrite history or require the previous state of affairs to be expunged from official records, but other sections offer additional protection against inappropriate official disclosure of that prior history [23 25]. The Retention and SCR policies are not therefore inconsistent with or prohibited by any provision of the GRA [26]. Lawfulness under the HRA The Retention and SCR policies do constitute a very serious interference with the rights of transgender people to respect for their private life protected by article 8 ECHR [31]. The justifications relied on by the DWP the need to retain information for the time being for the purposes of calculating state pension rights, and to identify and detect fraud are legitimate [34] and rationally connected with the policies [35]. The question is whether the policies are proportionate. In carrying out the balancing exercise it is relevant that front line staff will only rarely have to access the CIS, that the DWP has been engaging with C over many years to try to understand and cater for her concerns, that it is no simple matter to modify existing computer systems designed to cater for vast numbers of customers, which interact with one another in complex ways, and that it is not possible to make further adjustments to the CIS without inordinate expense. It is not for the courts to administer the benefits system [36]. The Retention policy is therefore a proportionate means of achieving its legitimate aims [37]. The SCR policy cannot be considered in isolation from it. It has the legitimate aim of protecting the privacy of those customers who need and want it. The problems associated with it are inevitable if access to the CIS is to be restricted. It too is justified [38]. Lawfulness under the EA There is no direct discrimination on the ground of gender reassignment [43]. The details of all customers who change their names and titles are recorded on the CIS [42]. Transgender customers who need and want it are treated differently under the SCR policy [41]. They are not treated less favourably as a result of their transgender status. The claim of indirect discrimination also fails. The court accepts that gender reassignment changes ones identity at a much deeper level than name changes for other reasons. However the SCR policy is a proportionate means of achieving a legitimate aim for the purposes of s 19(2)(d) EA and for the same reasons any discrimination is justified for the purposes of article 14 of the ECHR [44].
These appeals concern requests for extradition in the form of European Arrest Warrants (EAWs) issued, in the joined cases of HH and PH, by the Italian courts, and in the case of FK, a Polish court. The issue in all three is whether extradition would be incompatible with the rights of the Appellants children to respect for private and family life under article 8 of the European Convention on Human Rights (ECHR). HH is the mother and PH the father of three children: X aged 11, Y aged 8 and Z aged 3. HH and PH are both British citizens, although HH was born and bred in Morocco. In 2003 they were arrested in Italy and prosecuted on eight charges relating to the importation of cannabis into Italy from Morocco on various dates earlier that year. After a month HH was released under house arrest. She fled the country in July 2004. PH spent a year in custody before being conditionally discharged whereupon he also fled. They were later convicted of all charges although PH received a lesser sentence in respect of the eighth charge, that of conspiracy, because of his lesser degree of participation. HHs EAW states that she has just over nine and a half years of her prison sentence to serve. PPs states that he has eight years and four months to serve. According to calculations made by PHs legal team, he is likely in fact to have only around four and a half years to serve. Further, as primary carer for the children, were the family living in Italy he would be allowed to serve all but a few months of that at home. PH has become the primary carer for the children because HH had experienced a collapse in her mental health. There was expert evidence of the serious harm which would be suffered by the children if both their parents were extradited, in particular by Z who would be separated from her primary attachment figure The District Judge ordered extradition of both HH and PH. Their appeals were dismissed by the Administrative Court on 11 May 2011. FK and her husband are Polish and have five children aged 21, 17, 13, 8 and 3. They have lived in the United Kingdom since 2002. The two youngest children were born in this country. FK is charged with offences of dishonesty with a total equivalent value of less than 6,000. She fled Poland in 2002 and has not been tried or convicted of the alleged offences. There was expert evidence of the serious harm which would be suffered, in particular by the two youngest children, if their mother was extradited. The children had reacted badly to her arrest in 2010. FKs husband is physically impaired and was found to display signs of psychological disturbance. The Senior District Judge ordered extradition. Her appeal was dismissed by the Administrative Court on 1 January 2012. The Supreme Court unanimously allows the appeal in the case of FK. The appeal in respect of HH is unanimously dismissed. By a majority, the Court also dismisses PHs appeal, Lady Hale dissenting. Lady Hale gives the lead judgment. The application of article 8 of the ECHR in the context of extradition was considered by the Supreme Court in Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. The case concerned the effect on Mrs Norris of her husband of many years being extradited to face charges of conspiracy. Whilst not involving the rights of children, the following principles can nonetheless usefully be drawn from that case [08]. First, there may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation, but the court must still carefully examine the way in which it will interfere with family life. Secondly, there is no test of exceptionality. Third, the question is whether the interference with private and family life is outweighed by the public interest in extradition. Fourthly, there is a constant and weighty public interest in extradition: people should stand trial and serve appropriate sentences for their crimes, the United Kingdom should honour its treaty obligations towards other States, and there should be no safe haven for fugitive offenders. Fifthly, the public interest will always carry great weight but the weight does vary according to the nature and seriousness of the crimes involved. Sixthly, delay in seeking extradition may diminish the public interest element and increase the impact on family life. Lastly, as a result of the above it is likely that the public interest will outweigh the article 8 rights of the family unless the interference is exceptionally severe. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 the Supreme Court considered the potential impact of Hs deportation on the article 8 rights of her two children, British citizens who had always lived here. The United Nations Convention on the Rights of the Child required that the best interests of the child shall be a primary consideration (not, it should be noted, the primary consideration or the paramount consideration, [11]), although they can be outweighed by the cumulative effect of other considerations [15]. The approach of the court to article 8 rights is not radically different as between extradition and expulsion cases [29]. The countervailing public interest arguments may be different, in particular because extradition is an obligation owed by the requested state to the requesting state, but the balancing process involves asking the central question set out above. In all cases there must be a careful analysis under article 8 of the potential effects of extradition [31, 32]. For guidance as to procedure in respect of gathering evidence, see [82 86]. In respect of FK, her extradition would have a severe effect on her two youngest children, who would lose their primary attachment figure. That loss could have a lasting impact on their development. Their father, though well intentioned, is unlikely to be able to fill that gap [44]. The alleged offences are not trivial but are of no great gravity [45]. There is no prosecutorial discretion in Poland and there has been considerable delay which may indicate the importance attached to her offending by the Polish authorities [46]. The public interest in extraditing FK does not justify the inevitable harm that it would cause to the lives of her children [48]. In the Italian case, the extradition of both parents would have a severe impact on the children. However, having regard to the limited role of HH in the childrens lives and the central part she played in the very serious offences committed, the interference with the rights of the children is outweighed by the public interest in her extradition. On this point all members of the Court agree. As regards PH, the majority conclude that he ought to be extradited also. Lord Judge notes that in the domestic sentencing context judges have for many years considered the effects of imprisonment on the children of offenders. Unfortunately, the seriousness of the offences committed often means that innocent members of the offenders family will suffer as a result of their crimes [130, 131]. Given the nature of the crimes committed by PH, the public interest in extradition outweighs the interference with the rights of his children [135 138], a sentiment echoed by the majority: Lord Hope, [94]; Lord Brown, [96]; Lord Mance, [103]; Lord Kerr, [149]; and Lord Wilson at [170 172]. Lady Hale would have found that the current effect on the children and in particular the youngest is such that the extradition of their father in addition to their mother is not justified at present [79].
On 22 March 2010 (tax year 2009/10), Mr Derry bought 500,000 shares at a cost of 500,000 in a company called Media Pro Four Ltd. On 4 November 2010 (tax year 2010/11) he sold them to the Island House Private Charitable Trust for 85,500, realising a loss of 414,500. In his tax return for 2009/10, submitted by his accountants on 24 January 2011, Mr Derry claimed share loss relief for that amount against his income for that year under section 132 of the Income Taxes Act 2007 (the 2007 Act), with the aim of reducing to that extent his taxable income for that year. Her Majestys Revenue and Customs (HMRC) have identified the claim as a case of possible tax avoidance. In December 2011, Mr Derrys accountants submitted his tax return for 2010/11 online, which said that the relief for the loss of 414,500 had already been claimed and relief obtained in 2009/10. In response, HMRC opened an enquiry into the claim for share loss relief. This was made under schedule 1A of the Taxes Management Act 1970 (the 1970 Act) on the basis that it was a claim made outside of a return. It then opened an enquiry into the return for 2010/11 under section 9A of the 1970 Act. HMRC subsequently issued a demand for 95,546.36 with interest. Mr Derry began judicial review proceedings relating to the demand. The two issues were: (1) Whether, having exercised his right to claim the relevant loss relief in the previous year (2009/10), Mr Derry was correct to deduct that loss in calculating his net income for that year; or whether, as HMRC contend, that right was overridden by schedule 1B of the 1970 Act, such that the loss, although claimed in year 2009/10, was to be treated as relating to the following year. (2) Whether, if it was an error for Mr Derry to make a claim for relief in the tax return for 2009/10, that claim is nonetheless part of the tax return for that year. Mr Derry failed on both issues in the Upper Tribunal. On the first issue, the Court of Appeal found in favour of HMRC. On the second issue, it found in favour of Mr Derry that the claim for relief was part of the 2009/10 return. As HMRC had failed to open an enquiry into the 2009/10 return within the statutory time limit, it allowed the claim for judicial review. HMRC appeals the decision on the second issue. Mr Derry resists the appeal on that issue but seeks to uphold the decision in any event on the first issue. The Supreme Court unanimously dismisses the appeal as it finds in favour of Mr Derry on the first issue. The loss relief was correctly deducted from the net income for 2009/10. Lord Carnwath gives the lead judgment, with which Lord Reed, Lady Black and Lord Kitchin agree. Lady Arden gives a concurring judgment. (1) HMRCs appeal: whether the loss relief was correctly deducted from the net income in 2009/10. Lord Carnwath observes that section 23 and sections 131 132 of the 2007 Act create a clear and self contained code for the treatment of a claim to share loss relief such as that of Mr Derry. Sections 132 133 give him an entitlement to make the claim, to specify the tax year to which it is to be applied, and to do so by deducting it in the calculation of his net income for the purpose of section 23 [35]. It would be extraordinary for that entitlement to be taken away, without any direct reference or signpost, by a provision in a relatively obscure schedule of another statute (schedule 1B of the 1970 Act), which is concerned principally with management of tax, rather than with liability. Provisions in the 2007 Act which refer to the 1970 Act do not assist. For example, while sections 60(2) and 128(7) of the 2007 Act refer to schedule 1B of the 1970 Act as a qualification of the rights otherwise conferred by those provisions, the absence of similar words in section 132 of the 2007 Act indicates that this right is not subject to the same qualification [36]. The words of schedule 1B of the 1970 Act are not sufficient to displace the clear provisions of the 2007 Act in respect of liability. As the governing statute in respect of tax liability, the 2007 Act should take precedence in the absence of any indication to the contrary [37]. Any such indications in the legislative history or the explanatory notes to the 2007 Act do not provide a basis for departing from the ordinary principles of statutory interpretation. There is no suggestion that they produce an absurd or unworkable result, and for the taxpayers liability to be determined by reference to legal archaeology would negate the whole purpose of the tax law rewrite [38]. Lord Carnwath endorses the guidance on interpreting consolidation statutes, such as the 2007 Act, in Eclipse Film Partners (No 35) LLP v Commissioners of Her Majestys Revenue and Customs [2013] UKUT 639 (TC) at paragraph 56 [9 10]. Lady Arden adds that the courts may look at previous case law on consolidated provisions in the interests of the consistency of the law, the fulfilment of Parliaments presumed intention that the law should not be changed, and the efficient use of judicial resources [88]. (2) Mr Derrys cross appeal: whether an erroneous claim for loss relief would be part of the 2009/10 tax return. Lord Carnwath notes that the conclusion on the first issue makes it strictly unnecessary to reach a conclusion on the second issue [40]. Furthermore, he is not satisfied that the issues were fully explored in argument before the Supreme Court, which concentrated on the entitlement to relief rather than the means of enforcement. There remain unresolved uncertainties as to the correct interpretation of the entries in the online form and their treatment by HMRC, and the relationship between enquiries under section 9A (into a return) and Schedule 1A paragraph 5 (into a claim outside a return) of the 1970 Act [68]. In a separate judgment, Lady Arden expresses the provisional view, in light of the Supreme Courts decision in Commissioners for Her Majestys Revenue and Customs v Cotter [2013] 1 WLR 1514, the provisions of the legislation, the prescribed online tax return form and the evidence of Mr Graham Dean on behalf of HMRC, that the erroneous entry of a loss relief claim, which a tax payer was not entitled to make in that years return, does not form part of the tax return for enquiry purposes. On that basis, HMRC would be right to open an enquiry into the claim and not the return [73 83].
This appeal is about the law on damages for false imprisonment. It requires the Supreme Court to consider the meaning of imprisonment at common law and whether this should be aligned with the concept of deprivation of liberty under the European Convention on Human Rights (ECHR). The claimant (who claims to be a Liberian national named Ibrahima Jalloh, although his identity is disputed by the Home Office) was released from immigration detention on bail in October 2013. On the following day, he reported to an immigration officer. He was given a document headed NOTICE OF RESTRICTION purporting to impose restrictions on him under paragraph 2(5) of Schedule 3 to the Immigration Act 1971. The restrictions included a requirement to report to an immigration officer every Monday, Wednesday and Friday, to live at a specified address in Sunderland, to submit to electronic tagging and to stay at home each night between the hours of 11.00 pm and 7.00 am. The notice warned him that he would be liable to imprisonment or a fine if he failed to comply with the curfew without reasonable excuse. Electronic monitoring equipment was installed and the curfew was in place from 3 February 2014 until 14 July 2016, a total of 891 days. On the whole, the claimant sought to comply with the curfew although he did break it on a number of occasions, leaving the house (among other things) for religious observance and to attend family court proceedings in Coventry. It transpired in 2016 that the Secretary of State had no legal power to impose restrictions by way of curfew in this way: R (Gedi) v Secretary of State for the Home Department [2016] EWCA Civ 409. In consequence of that decision, the High Court ordered the claimants curfew to be lifted. The Secretary of State now accepts the curfew was unlawful from the start. The claimant sought damages for false imprisonment, arguing he had been confined to his house without any legal basis for long periods of time. Mr Justice Lewis accepted that argument and awarded him 4,000 in damages. The Court of Appeal upheld his decision. On appeal to the Supreme Court, the Home Secretary argues that (1) the curfew (although unlawful) did not qualify as imprisonment at common law; and (2) if it did, the common law concept of imprisonment should be modified and aligned with the more demanding concept of deprivation of liberty under article 5 of the ECHR. The Supreme Court unanimously dismisses the Secretary of States appeal. Lady Hale gives the only judgment with which Lord Kerr, Lord Carnwath, Lord Briggs and Lord Sales agree. Imprisonment The essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various. They include physical barriers, guards or threats of force or of legal process [24]. In this case there is no doubt that the Secretary of State defined the place where the claimant was to stay between the hours of 11.00 pm and 7.00 am. There was no suggestion that he could go somewhere else during those hours without the Secretary of States permission [25]. Although the claimant broke his curfew from time to time, this made no difference to his situation while he was obeying it. Like a prisoner who goes absent from an open prison, or a tunneller who successfully escapes from a prison camp, the claimant was not imprisoned while he was away, but he was imprisoned as long as he stayed at home [26]. Although it was physically possible for the claimant to leave, his compliance was enforced and not voluntary. He was wearing an electronic tag which meant that leaving his address would be detected. The monitoring company would then telephone him to find out where he was. He was warned in the clearest possible terms that breaking the curfew could lead to a 5,000 fine or imprisonment for up to six months or both. He was well aware that it could also lead to his being detained again under the 1971 Act. All of this was backed up by the full authority of the State, which was claiming to have the power to do this [27]. This is a case of classic detention or confinement [28]. Deprivation of liberty The ECHR distinguishes between deprivation and mere restriction of physical liberty. Whether there has been a deprivation of liberty depends on a number of factors including the type, duration and effects of the confinement [29] [30]. In Secretary of State for the Home Department v JJ [2007] UKHL 45, Lord Brown expressed the view that an eight hour curfew would not amount to a deprivation of liberty for these purposes [32]. Consequently, the Secretary of State argued the curfew in this case would not amount to a deprivation of liberty, and suggested the time had come to align the domestic law of false imprisonment with the concept of deprivation of liberty under the ECHR. The Supreme Court unanimously declines to do so. Although the common law may develop to meet the changing needs of society, this proposal would not develop the law but make it take a retrograde step. It would restrict the classic understanding of imprisonment at common law to the very different and much more nuanced concept of deprivation of liberty under the ECHR. This approach derives from the need to distinguish under the ECHR between the deprivation and the restriction of physical liberty. There is no need for the common law to draw such a distinction and every reason for the common law to continue to protect those whom is has protected for centuries against unlawful imprisonment, whether by the state or private persons [33]. Accordingly, it is possible for there to be imprisonment at common law without a deprivation of liberty under article 5. It is not necessary to decide whether the converse is true [34].
Nicola Stocker and Ronald Stocker were husband and wife. Their marriage ended in 2010. Subsequently, Mr Stocker formed a relationship with Ms Bligh. On 23 December 2012, an exchange took place between Mrs Stocker and Ms Bligh on Facebook. In this exchange, Mrs Stocker told Ms Bligh that Mr Stocker had tried to strangle her. Mrs Stocker also said that Mr Stocker had been removed from their home following a number of threats that he had made; that there were some gun issues; and that the police felt that he had broken the terms of a non molestation order. Mr Stocker brought defamation proceedings against Mrs Stocker. He claimed that the meaning of the words tried to strangle me were that he had tried to kill her. Mrs Stocker denied that the words bore that meaning. She claimed that the words would be understood to mean that Mr Stocker had grasped her by the neck and inhibited her breathing so as to put her in fear of being killed. At the start of the hearing, Mr Justice Mitting suggested that the parties should refer to the Oxford English Dictionary. This provided two possible meanings for the verb strangle: (a) to kill by external compression of the throat, and (b) to constrict the neck or throat painfully. During the trial, Mitting J heard evidence from both parties. He accepted that police officers had seen red marks on Mrs Stockers neck two hours after the incident and decided that: The most likely explanation about what happened is that [Mr Stocker] did in temper attempt to silence [Mrs Stocker] forcibly by placing one hand on her mouth and the other on her upper neck under her chin to hold her head still. His intention was to silence, not to kill. In his judgment, Mitting J referred to the dictionary definitions and said that if Mrs Stocker had used the phrase he strangled me, an ordinary reader would have understood her to mean strangle in the sense of a painful construction of the neck. The judge considered, however, that since Mr Stocker had succeeded in painfully constricting Mrs Stockers neck the phrase tried to strangle could not refer to strangle in that sense. He therefore concluded that the phrase tried to strangle meant that Mr Stocker had attempted to kill Mrs Stocker. Mrs Stockers defence of justification was not accepted. The Court of Appeal stated that use of dictionaries does not form part of the process of determining the natural and ordinary meaning of words. It nevertheless considered that no harm had been done in this case as Mitting J had only used the dictionary definitions as a check. It therefore dismissed Mrs Stockers appeal. The Supreme Court unanimously allows Mrs Stockers appeal. It holds that Mitting J erred in law by using dictionary definitions as the starting point of his analysis of meaning and in subsequently failing properly to take into account the context of the Facebook post. Lord Kerr writes the judgment, with which all members of the Court agree. Mitting Js approach produces an obviously anomalous result in that the phrase he strangled me on his analysis entails a less serious accusation than the phrase he tried to strangle me. This is the consequence of confining the meaning of the words exclusively to two dictionary definitions [16 17]. Contrary to the view of the Court of Appeal, Mitting J was not using the dictionary definitions as a check. He referred to these before hearing any argument about meaning and did not use the word check in his judgment or in his exchanges with the lawyers in the case. Instead, Mitting J regarded these definitions as the only possible meanings which he could consider or, at the very least, as the starting point for his analysis [23 24]. Where a statement has more than one plausible meaning, the question of whether defamation has occurred can only be answered by deciding which single meaning should be given to the statement [34]. The primary role of the court is to focus on how the ordinary reasonable reader would construe the words. To fulfil this obligation, the court should be particularly conscious of the context in which a statement is made [38]. The hypothetical reader should be considered to be a person who would read the publication [39]. The fact that this was a Facebook post is critical and it was necessary for the judge to keep in mind the way in which such postings are made and read [41]. It is unwise to search a Facebook post for its theoretical or logically deducible meaning. The search for meaning should reflect that this is a casual medium in the nature of a conversation rather than a carefully chosen expression [43]. People scroll through Facebook quickly and their reaction to posts is impressionistic and fleeting [44]. Through relying on the dictionary definitions, Mitting J fell into legal error. As a consequence of this, he failed to conduct a realistic exploration of how an ordinary reader of the Facebook post would have understood it [47]. As a result of this error of law, the decision on meaning cannot stand and it is appropriate for the Supreme Court to determine the meaning of the post itself [48]. An ordinary reader of the post would have interpreted the post as meaning that Mr Stocker had grasped Mrs Stocker by the throat and applied force to her neck [49]. In light of this, the defence of justification should succeed. Even if Mrs Stockers allegations were considered not to have been established to the letter, there is more than enough to demonstrate that that defence should not fail by reason only that the truth of every charge was not proved [61].
Ss. 58 and 59 of the Offences Against the Person Act 1861 (an Act of the UK Parliament) (the 1861 Act) and s.25(1) of the Criminal Justice Act (NI) 1945 (an Act of the Northern Ireland legislature) (the 1945 Act) criminalise abortion in Northern Ireland. It is not however a crime to receive or supply an abortion where it is done in good faith for the purpose of preserving the life of the mother. Further it is not a crime to receive or supply an abortion where the continuance of the pregnancy will make the woman a physical or mental wreck the Bourne exception following R v Bourne [1939] 1 KB 687. The Northern Ireland Human Rights Commission (NIHRC) challenges the compatibility of the law of Northern Ireland with Art 3 (the prohibition of torture and of inhuman or degrading treatment), Art 8 (the right of everyone to respect for their private and family life) and Art 14 (the prohibition of discrimination) of the European Convention on Human Rights (ECHR) insofar as that law prohibits abortion in cases of (a) serious malformation of the foetus, (b) pregnancy as a result of rape, and/or (c) pregnancy as a result of incest. NIHRC seeks declarations to that effect under s.6 and s.4 of the Human Rights Act 1998 (HRA 1998). These proceedings are brought in the name of NIHRC, rather than the name of particular victims. Examples of particular individuals however were relied on by NIHRC during the proceedings. In the High Court Horner J held that NIHRC had standing to bring these proceedings in its own name. Further Horner J held that sections 58 and 59 of the 1861 Act were incompatible with Art 8 insofar as they criminalise abortion in cases of (a) fatal foetal abnormality, (b) rape up to the date when the foetus is capable of being born alive and (c) incest up to the date when the foetus is capable of being born alive. He made a declaration of incompatibility to that effect under s.4 HRA 1998. He did not consider that the law was incompatible with Art 3. The Northern Ireland Court of Appeal (NICA) held that NIHRC had standing to bring these proceedings. However, in three differently reasoned judgments it concluded that there was no incompatibility with any of the articles of the ECHR. NIHRC appeals the decision of NICA. NICA has also referred a reference from the Attorney General for Northern Ireland on devolution issues under para 33 of sch 10 to the Northern Ireland Act 1998 (NIA 1998). The reference relates to whether NIHRC has standing to bring these proceedings, specifically, whether NIHRC has the power to institute human rights proceedings or to seek a declaration of incompatibility other than in relation to an identified unlawful act. A majority of the court dismisses the appeal. A majority (Lord Mance, Lord Reed, Lady Black and Lord Lloyd Jones) concludes that NIHRC does not have standing to bring these proceedings. As such, the court does not have jurisdiction to make a declaration of incompatibility in this case. A minority of the court (Lady Hale, Lord Kerr and Lord Wilson) considers that NIHRC does have standing to bring these proceedings. A majority of the court (Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) does however consider that the current law in Northern Ireland is disproportionate and incompatible with Art 8 ECHR insofar as that law prohibits abortion in cases of (a) fatal foetal abnormality, (b) pregnancy as a result of rape and (c) pregnancy as a result of incest. Lady Black joins that majority on (a) but not on (b) or (c). A minority of the court (Lord Reed, Lady Black on (b) and (c) and Lord Lloyd Jones) considers that it is not possible to conclude in the abstract, in proceedings of the present nature (as distinct from individual applications), that the current law is disproportionate or incompatible with Art 8. A majority of the court (Lord Mance, Lord Reed, Lady Black and Lord Lloyd Jones) concludes that the current law, in the abstract, is not incompatible with Art 3 ECHR. A minority of the court (Lord Kerr and Lord Wilson) disagrees and considers that it is. Lady Hale expresses sympathy with the view expressed by Lord Kerr but does not consider it necessary to decide on incompatibility in relation to Art 3 in light of her decision on Art 8. Standing Lord Mance (with whom Lord Reed, Lady Black and Lord Lloyd Jones agree) considers that NIHRC does not have standing to bring these proceedings. They were not instituted by identifying any unlawful act or any potential victim of it [73]. NIHRC relies on s.69(5)(b) of the NIA 1998 for its power to institute these proceedings. These proceedings constitute human rights proceedings under s.71(2C)(a)(ii) and are therefore subject to the restrictions in s.71(2B) [54]. Under s.71(2B) and (2C), where NIHRC is instituting human rights proceedings, it need not be a victim, but there must be an actual or potential victim of an unlawful act to which the proceedings relate [54 and 56]. S.71(2C)(b) states that an expression used in s.71(2B) has the same meaning as the same expression used in s.7 HRA 1998. S.7 HRA 1998 refers to s.6(1) for the concept of unlawful act. It does not apply to an authoritys act which was (a) compelled by a provision of primary legislation or was (b) to give effect to or enforce one or more provisions of or made under primary legislation which cannot be read or given effect in a way which is compatible with ECHR rights. Further, under s.6(6) HRA 1998, an act does not include a failure to introduce or lay before Parliament a proposal for legislation or make any primary legislation [57]. It follows that NIHRCs powers under ss.69 and 71 NIA 1998 do not include either instituting or intervening in proceedings where the only complaint is that primary legislation, such as the 1861 Act, is incompatible with the ECHR because such proceedings would not involve any unlawful act within the meaning of ss.6 and 7 HRA 1998 and consequently s.71 NIA 1998 [58]. It is no surprise that Parliament did not provide for NIHRC to have capacity to pursue what would amount to unconstrained actio popularis regarding the interpretation or compatibility of primary legislation with Convention rights [61]. The 1945 Act, as an act of a devolved legislature, is not primary legislation. It might have been open to NIHRC to claim that the failure of the Northern Ireland Assembly to repeal or amend s.25 constituted an unlawful act within the meaning of ss.6 and 7 HRA 1998. However, NIHRC, pursuant to s.71(2B), would still have to demonstrate that there is or would be one or more victims of the unlawful act. That restriction is not satisfied by a general assertion that the failure to abrogate or amend s.25 is likely to give rise to victims. There must be a specific and identifiable victim who is or would be the victim of an unlawful act [72]. Even if NIHRC could establish standing regarding the 1945 Act it would have little practical effect given the ongoing effect of the 1861 Act [72]. A minority of the court (Lady Hale, Lord Kerr and Lord Wilson) concludes that NIHRC does have standing to bring these proceedings. Lady Hale and Lord Kerr (with whom Lord Wilson agrees) hold that there are two separate species of challenge under the HRA 1998. One is for victims to bring proceedings in respect of an unlawful act of a public authority, or to rely on such an unlawful act in other proceedings, pursuant to s.7(1). The other is to challenge the compatibility of legislation under sections 3 and 4 irrespective of whether there has been any unlawful act by a public authority. NIHRC has standing to bring such proceedings by virtue of s.69(5)(b) [17 and 183 184]. In Lady Hales view section 71(2B) and (2C) deal only with proceedings brought by NIHRC or interventions by NIHRC in proceedings brought by others in respect of claims that a public authority has acted or proposes to act unlawfully. But it does not apply to or limit the general power of the NIHRC to challenge the compatibility of legislation under sections 3 and 4 of HRA 1998. The unlawful act means the unlawful act alleged in the proceedings so does not apply where no such unlawful act is alleged [18]. In Lord Kerrs view the only restriction on NIHRCs power to bring proceedings under s.69(5)(b) NIA 1998 is that the proceedings must involve law or practice relating to human rights [184]. Under s.71(2B)(c) the NIHRC may act only if there is or would be one or more victims of the unlawful act. Would be victims indicates an intention that NIHRC should be able to act pre emptively [195]. The majority decision departs in his view from well established authority that an interpretation of a statute which gives effect to the ascertainable will of Parliament should be preferred to a literal construction which will frustrate the legislations true purpose [202 213]. S.71(2B)(c) can reasonably be interpreted to mean that NIHRC may act where it is clear that there have been and will be victims of the implementation of the provisions of the 1861 and 1945 Acts, which is satisfied in this case [195 and 208]. If NIHRC is unable to bring proceedings to protect the rights of women in the three situations in this case, they will be deprived of an effective remedy under Art 13 ECHR [199]. Article 8 The courts decision on standing means that there is no possibility of making a declaration of incompatibility under s.4 HRA 1998. However, a majority of the court (Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) considers that the current law in Northern Ireland on abortion is disproportionate and incompatible with Art 8 insofar as it prohibits abortion in cases of (a) fatal (as distinct from serious) foetal abnormality (b) pregnancy as a result of rape and (c) pregnancy as a result of incest. If an individual victim did return to court in relation to the present law, a formal declaration of incompatibility would in all likelihood be made. Lady Hale agrees with the reasons provided by Lord Mance and Lord Kerr and writes separately only on a few points. Lady Black joins the majority in relation to (a) but not in relation to (b) and (c). The majority on this issue starts from the position that the current law is an interference with the right of pregnant women and girls to respect for their private lives, guaranteed by Art 8(1). The question is whether the Northern Ireland abortion law is justified under Art 8(2) [9, 104, 263 and 265]. The majority concludes that it is not. Lord Mance and Lord Kerr (with whom Lord Wilson agrees) hold that the general clarity of the existing law on abortion was not the focus of the present appeal. Lord Mance holds that it is clear that all the categories in issue are prohibited under the 1861 and 1945 Acts [81, 105 and 269]. Lady Hale considers that it is no more uncertain than other areas of law which rely upon the application of particular concepts to particular facts [20]. All of the majority accept that the current law pursues a legitimate aim: the moral interest in protecting the life, health and welfare of the unborn child [21, 105 and 278]. Lady Hale highlights that the community also has an interest in protecting the life, health and welfare of the pregnant woman [21]. It is accepted that the unborn are not right holders under Art 2 ECHR and do not have a right to life in domestic law or in Northern Ireland [21, 24, 94 and 305 306]. The law as it currently stands already permits abortion to protect not only the life of the pregnant woman but also her mental health from serious long term injury [24 and 106 108]. The majority refer to the opinion polls produced by NIHRC demonstrating strong public support for changes in the law [24, 110 and 322]. Lord Mance accepts that views elicited by opinion polls cannot prevail over the decision to date by the Northern Ireland Assembly which is to maintain the existing policy and law [111]. However, Lady Hale and Lord Kerr (with whom Lord Wilson agrees) state that this evidence cannot be lightly dismissed when the argument is that profound moral views of the public are sufficient to outweigh the grave interference on the rights of pregnant women and a change in the law [24 and 325]. All of the majority however agree that the Working Group established by the Northern Irish Assembly demonstrates that the Assembly is not necessarily opposed to amending the law in the future but that any such solution has been precluded by the cessation of the Assemblys activities since January 2017 [112 and 228 229]. The majority holds that the banning of abortion in all the categories at issue is rationally connected to the legitimate aim [113 and 279]. The real issue on this appeal is whether the interference with womens Art 8 rights is necessary in a democratic society in that it strikes a fair balance between the rights of the pregnant woman and the interests of the foetus by maintaining the 1861 and 1925 Acts [21, 117 and 287]. The majority all refer to the institutional role of the UKSC in relation to the legislature. A distinction is drawn between the margin of appreciation applied by Strasbourg and considerations of institutional competence required in a domestic context [37 28, 115 and 289 295]. Lady Hale remarks that this is not a matter on which the domestic legislature enjoys a unique competence. Lady Hale, Lord Mance and Lord Kerr all highlight that Parliament, through s.4 HRA 1998, has expressly given the high courts power to rule on compatibility of legislation with the ECHR [39 and 292]. The majority on this issue also distinguishes the present case from R (Nicklinson) [2014] UKSC 38 in reaching a decision that it is institutionally appropriate for the Supreme Court to consider the compatibility of the existing law on abortion with the Convention rights. The Northern Irish Assembly is not about to actively consider the issue of abortion there is no assurance as to when it will resume its activity [40, 117 and 299]. There is no question of a balance being struck between the interests of two different living persons as in Nicklinson. The unborn foetus is not in law a person, although its potential must be respected [119]. Nicklinson was also decided against a background where the attitude maintained by the UK Parliament reflected a similar attitude across almost the whole of Europe. Northern Ireland, in contrast, is almost alone in the strictness of its current law. The close ties between the different parts and peoples of the UK make it appropriate to examine the justification for differences in this area with care [120]. Lord Kerr also distinguishes the present case from Nicklinson on the basis that the present incompatibility is not difficult to identify or cure. A simple amendment to the 1861 and 1945 Acts permitting termination of pregnancy in the three situations would achieve that aim [298]. Fatal foetal abnormality: the majority and Lady Black conclude that there is no community interest in obliging the woman to carry a pregnancy to term where the foetus suffers from a fatal abnormality [28, 133, 326, 368 and 371]. Lord Mance remarks that the present law treats the pregnant woman as a vehicle and fails to attach any weight to her personal autonomy [125]. The present law also fails to achieve its objective in the case of those who may choose to travel for an abortion, merely imposing on them harrowing stress and inconvenience as well as expense, while it imposes severe and sometimes life time suffering on the most vulnerable who, because of lack of information, or support are forced to carry their pregnancy to term [27, 28 and 126]. Serious foetal abnormality: By contrast, it is not possible to impugn as disproportionate and incompatible with Art 8 legislation that prohibits abortion of a foetus diagnosed as likely to be seriously disabled. A disabled child should be treated as having equal worth in human terms as a non disabled child [31, 133 and 331]. Rape: the majority considers that the current law is disproportionate in cases of rape and that the rights of the pregnant woman should prevail over the community interest in the continuance of the pregnancy [27, 127 and 326]. Lord Mance mentions that NIHRC made it clear that its submissions on rape included offences against children under the age of 13 who could not give consent in law but that it had not focused on sexual offences (not described as rape) committed against girls aged 13 or more but under the age of 16 [44]. Lady Hale, however, considers that for the purposes of this case, it is unnecessary to distinguish between offences where the child is under 13 and offences where the child is under 16 where no offence is committed if the perpetrator reasonably believed she was over 16. It is presumed under the law of Northern Ireland that children under 16 are incapable of giving consent to sexual touching, including penetration of the vagina by a penis, irrespective of the perpetrators belief and there is no reason to exclude such pregnancies from this case [25]. Lord Mance considers that causing a woman to become pregnant and bear a child against her will is an invasion of the fundamental right to bodily integrity. Neither Lord Mance nor Lady Hale consider the possibility of travel for an abortion as a justification for the law but rather a factor demonstrating its disproportionality [27 and 127]. Incest: A blanket prohibition of abortion in cases of incest is not proportionate [27, 132 and 326]. Lord Mance (with whom Lady Hale agrees) points to the fact that the most typical cases of incest involve abusive relationships with young or younger female relatives. The agony of having to carry a child to birth and have a potential responsibility and lifelong relationship with the child thereafter against the mothers will cannot be justified [27 and 132]. Lord Reed (with whom Lord Lloyd Jones and Lady Black (on pregnancy resulting from rape and incest) agree) would not make a declaration of incompatibility under Art 8. They are not convinced that the three situations are, as abstract categories, materially different from those explored in the case of A, B and C v Ireland (2011) 53 EHRR 13. Women are free to travel to obtain abortions on the NHS in England and Scotland. They should be provided with advice about termination, by medical professionals in Northern Ireland, and should receive whatever care they may require there after the termination has been carried out [357 and 369]. The court has been provided with information about individual cases which, if established in individual applications, would almost certainly demonstrate violations of Art 8, due principally to shortcomings in the provision of medical advice and support. However, this does not warrant a bald declaration that the legislation as such is inherently incompatible with Art 8 [359]. The difficulty with the form of the present appeal is that it does not enable the court to examine the facts of individual cases [361 and 369]. Defining categories of pregnancy in which abortions should be permitted involves highly sensitive and contentious questions of moral judgment [362]. They are pre eminently matters to be settled by democratically elected and accountable institutions [362 and 369]. That democratic consideration has not been completed in Northern Ireland as a result in the breakdown of devolved government in January 2017. However, there is every reason to fear that violations of the ECHR will occur if the arrangements in place in Northern Ireland remain as they are [363 and 370]. Article 3 A majority of the court (Lord Mance, Lord Reed, Lady Black and Lord Lloyd Jones) would not have made a declaration that the law of Northern Ireland is incompatible with Art 3 ECHR [34 and 100]. Art 3 is an absolute right. The treatment complained of has to reach a minimum level of severity in order to contravene it [95]. The majority all agree that there will be some women in the three situations in this case, whose suffering on being denied an abortion in Northern Ireland will reach the threshold of severity required to label the treatment inhuman or degrading. But Lord Mance notes that it cannot be said that legally significant number of women denied an abortion in such circumstances will suffer so severely that her Art 3 rights have been violated [82]. Whether there has been any violation also depends on the facts of the individual case [34, 95, 103, 354 and 367]. Lord Mance (with whom Lord Reed, Lady Black and Lord Lloyd Jones agree) considers that the cases relied on by NIHRC to demonstrate breach of Art 3: RR v Poland (2011) 53 EHRR 31, P & S v Poland [2012] 129 BMLR 120 and Tysiac v Poland (2007) 45 EHRR 412 were decided on an assessment of the actual circumstances of the conduct relied on. They were not decided on the basis of a risk that the State might commit a breach of Art 3 [100, 353 and 367]. Lord Mance (with whom Lord Reed, Lord Lloyd Jones and Lady Black agree) notes that women are able to travel elsewhere to obtain an abortion. Although this can be a distressing and expensive experience, it does not generally or necessarily give rise to distress of such severity so as to infringe Art 3: see A, B and C [100, 353 and 367]. A minority (Lord Kerr with whom Lord Wilson agrees) would have made a declaration that the law of Northern Ireland is incompatible with Art 3 ECHR insofar as it prohibits abortion in the three categories of case presented [262]. Even though some mothers may not, there is a risk that some mothers who are denied an abortion in cases (a), (b) and (c) above will suffer profound psychological trauma which is sufficient to give rise to a violation of Art 3 [235]. The state owes individuals an obligation to protect them from the risk of a breach of Art 3 as well as a positive duty to provide appropriate healthcare treatment where the denial of that treatment would expose victims to ill treatment contrary to Art 3 [235]. The risk of women and girls being subject to ill treatment contrary to Art 3 is sufficient to trigger the states positive obligations. Travelling to England or Scotland to obtain an abortion does not avoid this. The fact of being required to do so is in itself sufficient to expose women and girls to the risk of inhuman and degrading treatment [238]. Lady Hale expresses sympathy with the view expressed by Lord Kerr (with whom Lord Wilson agrees) but does not consider it necessary to decide on incompatibility in relation to Art 3 in light of her decision on Art 8 [34].
These appeals concern whether the High Court of England and Wales has jurisdiction to hear claims to recover sums paid under a settlement agreement relating to the loss of an insured vessel. The parties dispute the interpretation of the Brussels Regulation Recast (Regulation (EU) 1215/2012) (the Regulation). Article 4 of the Regulation provides that defendants must be sued in the member state where they are domiciled. This is subject to article 7(2), which provides that, in matters relating to tort, delict or quasi delict, a defendant may be sued in the place where the relevant harmful event occurred. Article 7(2) is, in turn, subject to section 3 of the Regulation, which provides (in article 14) that, in matters relating to insurance, an insurer may only bring proceedings in the courts of the member state where the defendant is domiciled. Aspen Underwriting Ltd and others (the Insurers) insured the Atlantik Confidence (the Vessel) under an insurance policy (the Policy), which valued the Vessel at $22m. The Policy had an exclusive jurisdiction clause in favour of the courts of England and Wales. Credit Europe NV, a bank which is domiciled in the Netherlands (the Bank), funded the re financing of the Vessel. In exchange, the Bank took a mortgage of the Vessel and an assignment of the Policy. The assignment identified the Bank as the sole loss payee under the Policy. After the Vessel sank, the Bank (at the request of the Owners) issued a letter to the Insurers, authorising them to pay any claims relating to the loss of the Vessel to a nominated company, Willis Ltd (the Letter of Authority). For the next several months, the Insurers engaged in settlement discussions with the owners and managers of the Vessel (the Owners). The Bank was not involved in those discussions. Eventually, the Insurers concluded a settlement agreement with the Owners and made a payment of $22m to Willis Ltd. Three years later, in an action not involving the Insurers, the Admiralty Court held that the Owners had deliberately sunk the Vessel. Following this judgment, the Insurers began legal proceedings in the High Court against the Owners and the Bank, seeking to set aside the settlement agreement and recover the sums paid under it, either in restitution or as damages for alleged misrepresentations by the Owners and the Bank. The Bank challenged the jurisdiction of the High Court to hear the Insurers claims against it. In two first instance judgments, Mr Justice Teare held that the Bank was not bound by the exclusive jurisdiction clause in the Policy but nor could it rely on section 3 of the Regulation, since it was not the weaker party in its relations with the Insurers. He found that the High Court had jurisdiction to hear the damages claims under article 7(2) of the Regulation but not the restitution claims, since these were not matters relating to tort, delict or quasi delict. The Court of Appeal affirmed Teare Js decisions. The Insurers and the Bank each appealed to the Supreme Court. The Supreme Court unanimously dismisses the Insurers appeal and allows the Banks appeal, declaring that the High Court does not have jurisdiction over any of the Insurers claims against the Bank. Lord Hodge gives the sole judgment with which the other Justices agree. The Supreme Court affirms the findings of Teare J and the Court of Appeal that the Bank is not bound by the exclusive jurisdiction clause in the Policy [23]. Under EU law, a jurisdiction agreement will only bind a party if there is actual consensus between the parties which is clearly and precisely demonstrated [24]. Although not a party to the Policy, EU law recognises that the Bank may be taken to have consented to the jurisdiction clause if, as a matter of national law, it became a successor to the Owners under the Policy [25]. As an equitable assignee, the Bank did not take on the Owners obligations under the Policy. However, nor was it entitled to assert its assigned rights in a way that was inconsistent with the terms of the Policy, including the jurisdiction clause [26 28]. In fact, the Bank had not asserted its rights under the Policy at all: it left the settlement negotiations to the Owners and its Letter of Authority merely facilitated that settlement [29]. Not being a party to the Policy, it is not required to submit to the jurisdiction of the English courts in an action brought by the Insurers [30]. The Supreme Court finds that the Insurers claims against the Bank are matters relating to insurance within the meaning of section 3 of the Regulation [41]. The Supreme Court notes that the title of section 3 is drafted in broader language than other sections of the Regulation, which refer to individual contracts [35]. It is also significant that the scheme of section 3 is concerned with the rights not only of parties to an insurance contract but also of beneficiaries and injured parties, who will typically be non parties [36]. The recitals to the Regulation do not operate to narrow the scope of section 3 [37]. Whereas EU case law indicates that articles derogating from the general rule in article 4 should be interpreted strictly, article 14 operates to reinforce article 4 and so need not be read narrowly [38]. Even if section 3 were to apply only to claims based on a breach of an individual insurance contract, the insurance fraud alleged by the Insurers would inevitably entail a breach of the Policy [40]. The Supreme Court holds that there is no weaker party exception to the protection of article 14 [43]. Article 14 protects certain categories of person because they are generally the weaker party in a commercial negotiation with an insurance company, not because of their individual characteristics [44]. Whilst recital (18) explains the policy behind section 3, it is the words of article 14 which have legal effect [45]. Article 14 refers to the policyholder, the insured and the beneficiary without further qualification and derogations from the jurisdictional rules in matters of insurance must be interpreted strictly [46, 57]. In any case, it would undermine legal certainty if the applicability of section 3 were to depend on a case by case analysis of the relative strength or weakness of contracting parties. This is why the Court of Justice of the European Union (CJEU) has treated everyone within the categories identified in article 14 as protected unless the Regulation explicitly provides otherwise [47 49]. The CJEU only has regard to recital (18) in deciding whether to extend the protections of article 14 to persons who do not fall within the identified categories, not to decide whether a particular policyholder, insured or beneficiary is to be protected [50 56]. Further, in deciding whether to extend the protections of article 14 in this way, the CJEU seeks to uphold the general rule in article 4 [43]. As a result of these conclusions, it is not necessary for the Supreme Court to address whether the Insurers restitution claims are matters relating to tort, delict or quasi delict under article 7(2) [61].
Mr McCann suffers from a mental disorder and was detained in the State Hospital at Carstairs following his conviction for a number of offences. On 5 December 2011 the State Hospital Board for Scotland (the Board) implemented a comprehensive smoking ban in the State Hospital. A partial ban had previously been implemented allowing smoking in the grounds but this had created operational difficulties. The comprehensive ban prohibited a detained patient from smoking or possessing tobacco products in the State Hospital, including in its grounds, and from smoking on home visits. The ban also prohibited visitors from bringing tobacco products into the hospital. Procedures were established to search both patients and visitors for such products. Mr McCanns challenge relates only to (a) the ban on smoking in the grounds and on home visits, which, by creating a comprehensive ban, prevents detainees from smoking anywhere and (b) the ban on possession and powers of search and confiscation. Mr McCann challenges the legality of the comprehensive smoking ban on three grounds. First, he argues the decision to implement the smoking ban was unlawful as it did not adhere to the principles in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act) or comply with the requirements of the Mental Health (Safety and Security) (Scotland) Regulations 2005 (the 2005 Regulations). Section 1 of the 2003 Act contains a statement of principles for the discharge of functions under that Act, which include an obligation to minimise restrictions on the freedom of the patient. The 2005 Regulations were made under section 286 of the 2003 Act which is headed Safety and security in hospitals. The 2005 Regulations authorise the placing of restrictions on items that specified patients and their visitors may have in hospital and the removal from them of prohibited items. They require that the specified patient must be informed when any measure is to be applied to them and that records are kept of any searches. The Board contends that in deciding upon and implementing the smoking ban and measures to enforce that ban, it acted solely under its power of management in section 102(4) of the National Health Service (Scotland) Act 1978 (the 1978 Act). As such, it submits that it was not required to comply with the 2003 Act section 1 principles. Secondly, Mr McCann submits that the decision unjustifiably interfered with his right to respect for his private life under Article 8 of the European Convention on Human Rights (ECHR). Thirdly, he argues that the Board, by implementing the smoking ban, treated him in a discriminatory manner contrary to Article 14 ECHR when taken with Article 8 EHCR. He submits that the discriminatory treatment cannot be objectively justified when compared with (i) people in prison, (ii) patients in other hospitals (whether detained or not) or (iii) members of the public at liberty. The Supreme Court unanimously allows Mr McCanns appeal but only to the extent that the part of the impugned decision, which relates to the prohibition from possession of tobacco products and the powers of search and confiscation, does not comply with the 2003 Act and 2005 Regulations. Lord Hodge gives the lead judgment, with which the other Justices agree. Mental Health (Care and Treatment) (Scotland) Act 2003 The Board is correct that the comprehensive ban, viewed on its own, involves the exercise of a power of management under the 1978 Act. However, the supporting prohibition from possession of tobacco products and the power to search for and confiscate such products fall within the scope of the 2003 Act and the 2005 Regulations [34]. The 2005 Regulations do not set limits on the items which may be prohibited or searched for. The focus of section 286 and the 2005 Regulations is on the regulation of activities which impinge on the autonomy of individuals [38]. The devising of such policies which concern the detained patients autonomy and the carrying out of such measures have thus become functions under the 2003 Act and the section 1 principles apply to such measures in so far as they are relevant [38 39]. One relevant principle is the obligation in section 1(4) to discharge the function in a manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances [39]. In instituting the comprehensive smoking ban there was no consideration of this principle by the Board nor was there compliance with the obligations to inform and record in the 2005 Regulations [40]. As a result, the prohibition on having tobacco products and the related powers to search and confiscate are illegal and fall to be annulled [41]. Article 8 Mr McCanns Article 8 right to privacy has been infringed [43]. The smoking ban is within the ambit of Article 8 [57]. Where therapeutic detention has severely curtailed a detained patients private space, there is a need to protect this residual autonomy by requiring further intrusion into his private life to be justified [55]. The decision is not in accordance with law as the Board failed to address the requirements of section 1(4) of the 2003 Act and the 2005 Regulations in relation to the part of the ban relating to the prohibition of possession, searches and confiscation of tobacco products [58]. But for this illegality, the decision would not have been contrary to Article 8 [62]. The smoking ban pursued the legitimate aim of the protection of public health and was rationally connected to that aim [59]. Faced with the difficulties of implementing a partial ban, the Board did not act disproportionately in imposing the comprehensive smoking ban when it did [60]. Article 14 The Article 14 challenge fails. The differences in treatment between detained patients in the State Hospital and patients in other NHS facilities or prisoners are a matter of timing rather than policy as the Scottish Government has committed to extending the ban. The earlier implementation of the comprehensive smoking ban in the State Hospital is due to the difficulties faced by the State Hospital in operating the partial ban. It is therefore unnecessary to consider the differences between the circumstances of Mr McCann and those of the other groups [64]. Further, there is no unjustified discrimination when detained patients are compared with the general public at liberty as the circumstances of members of the public are radically different [65].
This case concerns the statutory rights to appeal immigration decisions under the Nationality, Immigration and Asylum Act 2002 (NIAA 2002). The relevant provisions have now been repealed, however they were relevant to the appellant because of the timing of his claim. The main right of appeal under NIAA 2002 in relation to immigration decisions was s82. Whilst this did not cover asylum claims, where an appeal existed under s82 then the claimant in question was entitled by s84(1)(g) to raise the argument that his removal would put the UK in breach of its obligations under the Refugee Convention. By this route, a right of appeal against refusal of asylum effectively existed in NIAA 2002 if there was an immigration decision to appeal under s82. Generally there was such a decision to appeal under but not in all circumstances. For example, where the asylum was refused but leave to remain was granted. In this context, s83 provided a specific, additional right of appeal against refusal of asylum where the asylum claim was rejected but the applicant had, per s83(1)(b), been granted leave to remain or enter the [UK] for a period exceeding one year (or for periods exceeding one year in aggregate). The appellant is a citizen of Uganda. On 27 September 2010, he was granted limited leave to remain in the United Kingdom as a student until 30 April 2012. Before that time had expired, on 7 February 2012, he applied for asylum on the grounds that the Ugandan governments treatment of him might be affected because of his familys alleged political activities in Uganda. The Secretary of State rejected his claim and did not vary his limited leave to remain. The question was whether under s83 it was necessary for the relevant grant of leave to remain to be contemporaneous with or to post date the refusal of the asylum claim in order for the appellant to benefit from the right of appeal. After being unsuccessful before the Court of Appeal the appellant appealed to the Supreme Court. The Supreme Court unanimously dismisses the appellants appeal. Lord Hughes gives the only judgment, with which the other Justices agree. Lord Hughes identifies four possible readings of s83: [10] 1) any grant(s) of leave to remain totalling more than 12 months bring the claimant within the section, whenever they occurred and whether or not they had expired before the asylum claim was made and determined; 2) grant(s) of leave to remain totalling more than 12 months bring the claimant within the section providing such leave is still current at the time of the determination of the asylum claim; 3) grant(s) of leave to remain bring the claimant within the section providing that such leave totalled more than 12 months counting from the date of refusal or later grant, and whether the grant(s) were made before or after refusal. 4) grant(s) of leave to remain totalling more than 12 months bring the claimant within the section if but only if they (and all of them if more than one) are either contemporaneous with or post date the determination of the asylum claim; this was the Secretary of States primary case and was adopted by the Upper Tribunal and the Court of Appeal. Lord Hughes notes that whilst s83 can be read as a matter of language a number of ways, some are more natural than others. In particular, s83 appears to focus on the time when the asylum claim has been rejected, for it is concerned with appeals against this decision, and then to ask whether, when a claimant wishes to appeal, the condition in subsection 1(b) is met. [14] The purpose of s83 is tolerably clear. It is to provide an additional and more targeted right of appeal beyond the ordinary one created by s82. It is to provide a vehicle for the determination by the tribunal of refugee status, when that status is asserted but rejected by the Secretary of State, in those cases where no such vehicle otherwise exists, nor will exist within a reasonable time. s83 was designed to create an extra right of appeal for those who have a longer period of leave to remain and who would otherwise have no s82 vehicle which they could use. The intention was that those in this situation should not be deprived of the right to challenge the refusal of their asylum claim where that refusal is not accompanied by a decision to remove them. [21] Once this is understood, it is clear that the construction which most neatly serves the purpose of the statute is interpretation 3, i.e. that grants of leave to remain bring the claimant within the section providing that such leave totalled more than 12 months counting from the date of refusal or later grant, and whether the grants were made before or after refusal. [22]
This appeal from an Extra Division of the Court of Session raises two issues of contractual construction in documents relating to the letting of commercial premises at 1 and 3 South Wardpark Place, Wardpark South Industrial Estate, Cumbernauld, Scotland. The appellant (Batley) was the mid landlord of sub let premises and the respondent (the Council) was the sub tenant. Batley and the Council disagreed on whether the Council was obliged to remove its alterations and reinstate the sub let premises on the expiry of the sub lease when the request to do so was made orally by Batleys surveyor and not put in writing in a schedule of dilapidations or otherwise before the sub lease expired. The two issues were a) whether under a minute of agreement that authorised alterations to the sub let premises Batley was obliged to give written notification that it required the Council to remove the alterations and reinstate the sublet premises; and b) whether under the repairing obligation in the head lease, which was applied to the sub lease, Batley had to give a written notification that it required the Council to carry out the repairs before the expiry of the sub lease. The Extra Division dismissed Batleys claim on the basis that it was irrelevant, meaning that Batleys pleadings did not, on the face of them, set out a claim that was properly founded in law. As the repairing obligation in the head lease was in terms commonly used in commercial leases, this appeal raises an issue of law of general importance. The Supreme Court unanimously allows the appeal. It also allows a proof before answer of the appellants case. This means that the question whether the appellants have made out a good case in law will be reserved pending an evidential hearing in the Court of Session. Lord Hodge gave a judgment with which the rest of the Justices agree. The Court first addressed basis (b) of Batleys claim. Batleys pleadings on this issue were sufficiently detailed to give notice of both the contractual basis of the claim and also, by reference to the revised schedule, the works which Batley asserts were required at the expiry of the sub lease to meet the obligation to repair. [11] This basis was also sound in law. The Extra Division, in accepting the Councils submission, appeared to have imposed on the landlord a hurdle that was not there. The head lease obliged the tenant to repair, maintain, and where necessary reinstate the premises in order to keep them in a tenantable condition at all times during the period of the lease. That obligation to keep premises in (and put them into) a good condition was a continuing obligation of a sort that, it was well established, did not require any notice from the landlord to activate it. [14] Basis (b) of Batleys claim was therefore relevant to go to proof before answer. Issues of fact, such as whether Batley has carried out the needed repairs, and, if it has, the legal consequences to its claim (which is based on estimated costs) could be addressed at that hearing. [15] Basis (a) depended on whether Batley had to give written notice before the expiry of the sub lease of that it required the Council to remove the licensed works. It was not straightforward, as the document could bear more than one interpretation, but the Court concluded that no written notice was required. [16] The words had to be construed in the context of the Minute of Agreement as a whole and having regard to the admissible background knowledge, which is often called the factual matrix. [18] Starting with the words of the Minute of Agreement, the Court noted that the disputed words in clause 2.5 (if so required by the Mid Landlord) contrasted with two provisions in the Minute of Agreement that expressly required written forms. So the parties appeared to state expressly in this document when a communication had to be in writing and when less formal communication was permitted. [19] Further, contrary to the Councils submission, no requirement for written notice was incorporated into the Minute of Agreement. That submission depended on a convoluted argument that clause 5 of the Minute of Agreement subjected clause 2.5 to the requirement of writing (in clause 5.8 of the head lease) because the sub tenants obligation in that clause was conditional upon the mid landlord requiring the sub tenant to remove the licensed works. The Court strongly preferred the simpler construction of clause 5 of the Minute of Agreement. [21] It was also relevant to see the Minute of Agreement in its context as a document required by clause 5.7 of the sub lease: the mid landlords consent to the sub tenants works. The Minute of Agreement existed in the context of the head lease and the sub lease, both of which were part of the factual matrix. But it was a separate contract and the starting point was the words it contained. Those words pointed towards the conclusion that writing was not required for communications in all circumstances. The fact that the communications in the head lease and the sub lease that fell within the scope of clause 5.8 of the former had to be in writing did not overturn that conclusion. [23] Moreover, this made business common sense. First, the commercial purpose of the deemed incorporation of the obligations into the sub lease was stated in clause 5 to be to give the mid landlord the power of irritancy. Secondly, the context was important; the landlord would require the removal of the licensed works only at the end of the sub lease, when the sub tenant would have to address its separate and continuing obligation to keep the property in repair. An indication that the mid landlord wanted the licensed works removed required no formality. A sub tenant that conscientiously addressed its mind to its obligations under clause 5.1 of the sub lease to keep the sub let premises in repair could readily respond to an intimation by the mid landlord or its surveyor that it include the removal of the licensed works in the works it carried out at the end of the sub lease. If in doubt, it could ask the mid landlord. The benefits of certainty, which the Council emphasized, did not make its interpretation of the Minute the only commercially sensible construction. [24] The Court was therefore satisfied that the Minute of Agreement did not require the mid landlord to give written notice of its requirement that the licensed works be removed at the end of the sub lease. Batley averred that it instructed a named firm of chartered surveyors to produce a schedule of dilapidations and that on 22 December 2008 a named surveyor from that firm informed a named official of the Council that the mid landlord would be requiring the reinstatement of the premises to their original condition. Those averments met the well known test of relevancy in Jamieson v Jamieson 1952 SC (HL) 44, per Lord Normand at 4950. The appellant was not to plead evidence; and, as the Council could not only enquire of its official but also take steps to recover from Batley and the surveyor any documents relevant to those averments, there was no unfair lack of notice of the case Batley sought to prove. [25]
This appeal concerns the permissibility of a procedure whereby a claimant in employment tribunal proceedings may be excluded along with his representatives from certain aspects of those proceedings on grounds of national security. In particular the question arises as to whether such a procedure, known as a closed material procedure, is compatible with European Union law and the European Convention on Human Rights. Mr Tariq was employed as an immigration officer with the Home Office until 2006 when he was suspended and his security clearance withdrawn. The background for these decisions was the arrest of Mr Tariqs brother and cousin during an investigation into a suspected plot to mount a terrorist attack on transatlantic flights. Mr Tariqs cousin was convicted in 2008 of various offences in relation to that plot. No information suggested that Mr Tariq had himself been involved in any terrorism plot. Mr Tariq commenced proceedings in the Employment Tribunal claiming direct and indirect discrimination on grounds of race and religion. He alleged that the Home Office had relied on stereotypical assumptions about him, Muslims and individuals of Pakistani origin such as susceptibility to undue influence and that the Home Office had indirectly discriminatory policies and procedures. The Home Office denied this and stated that its decisions were based on Mr Tariqs association with individuals suspected of involvement in terrorist activities and the risk of their attempting to exert influence on him to abuse his position. Section 10(6) of the Employment Tribunals Act 1996 provides that the Secretary of State may make regulations that enable a tribunal to adopt a closed material procedure if it considers this expedient in the interests of national security. Rule 54(2) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (the Regulations) provides for the adoption of a closed material procedure if the tribunal so orders. Schedule 2 provides for the use of special advocates, whose role is to represent a claimants interests so far as possible in relation to the aspects closed to him and his representatives. The Employment Tribunal made an order for a closed material procedure, directing that Mr Tariq and his representatives should be excluded from the proceedings when closed evidence or documents were being considered. Mr Tariq appealed the order to the Employment Appeal Tribunal. The appeal was dismissed and a further appeal was dismissed by the Court of Appeal. The Court of Appeal, however, declared that Article 6 of the European Convention on Human Rights required Mr Tariq to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively. This requirement is known as gisting. The Home Office appealed to the Supreme Court against the declaration and Mr Tariq cross appealed against the conclusion that a closed material procedure was permissible. The Supreme Court by a majority of 8 1 allows the Home Offices appeal and sets aside the declaration made by the Court of Appeal requiring the provision of a gist. Lord Kerr dissents. The Supreme Court unanimously dismisses Mr Tariqs cross appeal, holding that a closed material procedure is compatible with Article 6 of the European Convention on Human Rights and EU Law. Mr Tariqs Cross Appeal The issue in the cross appeal was whether the provisions in the Regulations providing for a closed material procedure were contrary to EU law or the European Convention on Human Rights. It is a basic principle of EU law that national law should provide effective legal protection of EU law rights. Those rights include the right not to be discriminated against on grounds of race or religion. As to whether the closed material procedure provided effective legal protection, the case law of the European Court of Justice is clear that EU law will look for guidance on the subject in the case law of the European Court of Human Rights. That Court has established in a line of cases culminating in Kennedy v UK that the demands of national security may necessitate a system for determining complaints under which a claimant is, for reasons of national security, unable to know the secret material by reference to which his complaint is determined. The tests are whether the system is necessary and whether it contains sufficient safeguards. On the facts, both were satisfied. The system was necessary because security vetting is a highly sensitive area in which integrity of sources of information and the means of obtaining it must be protected. The alternatives of the Home Office routinely having to pay unmeritorious claims or the courts refusing to hear claims at all are not possibilities that the law should readily contemplate. The rule of law must, so far as possible, stand for the objective resolution of civil disputes on their merits by a court which has before it material enabling it to do so. The system contained sufficient safeguards in the form of special advocates, who can usefully protect the claimants interests. For these reasons the use of the closed material procedure in this case was lawful and the cross appeal must be dismissed. The Home Offices Appeal The question in the appeal was whether there is an absolute requirement that a claimant should be able to see the allegations against him in sufficient detail to give instructions to his legal team to enable the allegations to be challenged effectively. Mr Tariq argued that the European Convention on Human Rights contained such a principle. The Supreme Court, however, held that the line of cases culminating in Kennedy v UK recognised that there was no absolute requirement. Article 6 of the European Convention on Human Rights provides the right to a fair trial. The European Court of Human Rights has held that where the liberty of the subject is involved, Article 6 requires the provision of a gist as described by the Court of Appeal. In cases such as the present not involving the liberty of the subject, however, the question is whether the use of the closed material procedure will impair the very essence of the right to a fair trial. That cannot be said to be so in this case, as Mr Tariqs claim will be determined by an independent and impartial tribunal and the disadvantages that the procedure gives rise to will as far as possible be minimised. The appeal was therefore allowed. Lord Kerr dissented. He held, first, that the withholding of information from a claimant which is then deployed to defeat his claim is a breach of his fundamental common law right to a fair trial. The removal of that right can only be achieved by legislation framed in unambiguous language. Secondly, such withholding also constitutes a breach of a claimants Article 6 right to a fair trial. Kennedy v UK was an anomaly. Lord Kerr would therefore have dismissed the appeal.
This appeal is concerned with distributions made and to be made by the administrators of Kaupthing Singer & Friedlander Ltd (KSF), a bank. In particular, the appeal turns on what function, if any, the equitable rule in Cherry v Boultbee has to perform in the operation of the rule against double proof as it applies in situations involving guarantees and other sureties [9]. Singer & Friedlander Funding plc (Funding) is a wholly owned subsidiary of KSF and its sole function was to raise funds for use by KSF and other group companies. In 2005 Funding issued 250m floating rate notes constituted under a trust between KSF, Funding and HSBC Trustee (CI) Ltd (the Trustee). Under the trust KSF guaranteed payment of the principal and interest on the notes [2]. The net proceeds of the notes were advanced by Funding to KSF by way of an unsecured loan [3]. Both KSF and Funding went into administration in October 2008. When KSF went into administration on 8 October 2008 it owed Funding approximately 242.6m pursuant to the loan. When Funding went into administration on 15 October 2008 approximately 240.3m was prospectively owing on the notes and on 23 March 2009 the Trustee gave notice of an event of default upon which the notes became immediately due and payable and the obligations of Funding (as principal debtor) and KSF (as guarantor) came into immediate effect [3]. On 28 April 2009, the Trustee submitted to each of Fundings and KSFs administrators proofs of debt in respect of the loan notes in the sum of approximately 248.1m. On 8 May 2009, Funding submitted a proof in respect of its loan to KSF in the sum of approximately 242.6m [4]. On 20 May 2009, KSFs administrators gave notice of their intention to make distributions in the administration, including to ordinary unsecured creditors. KSF has numerous creditors who have already received dividends amounting to 58p in the pound [5]. KSFs administrators applied to the Chancery Division for directions. At the hearing the Trustee recognised that the Chancellor was bound by the Court of Appeal decision in In re SSSL Realisations (2002) Ltd [2006] Ch 610 (SSSL) but the Trustee made clear its intention to argue that SSSL was wrongly decided if granted permission to appeal. Accordingly, the Chancellor declared that the rule in Cherry v Boultbee was not excluded and directed that the administrators of KSF might rely on it unless and until KSFs right of indemnity (as a surety) had been satisfied in full. This is a leapfrog appeal direct from the Chancellor, who certified that there was a point of law of general public importance on which he was bound by a fully considered judgment of the Court of Appeal [6] [7]. The Supreme Court unanimously allows the appeal. The rule in Cherry v Boultbee is excluded in this case by the rule against double proof. Accordingly the Trustee must be paid in full before there can be any proof against Funding as the principle debtor by KSF as guarantor. Lord Walker gives the leading judgment with which Lady Hale, Lord Clarke and Lord Collins agree. Lord Hope delivers a short judgment agreeing with Lord Walkers reasons and the result. The rule against double proof is a rule to prevent the double proof of what is in substance the same debt being made against the same estate, leading to the payment of a double dividend out of one estate. In the simplest case of suretyship there is a triangle of rights and liabilities between the principal debtor (PD), the surety (S) and the creditor (C). PD has the primary obligation to C and a secondary obligation to indemnify S if and so far as S discharges PDs liability. But if PD is insolvent S may not enforce that right in competition with C. S has an obligation to C to answer for PDs liability and the secondary right of obtaining an indemnity from PD. C can proceed against either or both of PD and section If both PD and S are in insolvent liquidation, C can prove against each for 100p in the pound but may not recover more than 100p in the pound in all [11]. The rule protects other creditors of PD against unfair treatment by an arrangement under which there are multiple creditors in respect of the same debt. The effect is that so long as C has not been paid in full, S may not compete with C either directly by proving against PD for an indemnity, or indirectly by setting off his right to an indemnity against any separate debt owed by S to PD. The rule in Cherry v Boultbee is a technique of netting off reciprocal monetary obligations, even where there is no room for legal set off [9]. A person who owes an estate money, that is, who is bound to increase the general mass of the estate by a contribution of his own, cannot claim a share given to him out of that mass estate without first making the contribution that completes it [13]. In SSSL, the Court of Appeal considered that there are good reasons why the rule against double proof should not have the same effect on the equitable rule in Cherry v Boultbee as it does on statutory set off. The Court of Appeal considered that the contrary view involved three misunderstandings. Lord Walker finds much of the reasoning of the Court of Appeal in SSSL difficult to follow [49]. For example, the Court of Appeals suggestion that in a double insolvency the rule in Cherry v Boultbee and the rule against double proof can and should both apply, as this would strike a fair balance between the competing interests of creditors, would lead to many doubts and difficulties [51] [52]. The equitable rule in Cherry v Boultbee may be said to fill the gap left by disapplication of set off, but it does not work in opposition to it. It produces a similar netting off effect except where some cogent principle of law requires one claim to be given strict priority to another. The rule against double proof is one such principle. It would be technical, artificial and wrong to treat the rule against double proof as trumping set off but as not trumping the rule in Cherry v Boultbee [53].
These appeals concern the obligations of insurance companies under various contracts of employers liability (EL) insurance. In particular, the appeals concern the scope of the insurers obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later. The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendants negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employees mesothelioma was caused by exposure to asbestos during a particular policy year. At first instance Burton J held that the policies should all be interpreted as having a causation wording. He therefore held that the liability trigger under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed. A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease contracted during the relevant insurance period); however they concluded that other policies (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma sustained or contracted at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employees body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an employee sustained or contracted mesothelioma during a particular policy period? The Supreme Court dismisses the insurers appeal by a 4 1 majority; Lord Phillips dissenting on the second issue. Lord Mance gives the main judgment. To resolve the meaning of the EL policies it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more generally [19]. Several features point the way to the correct construction. First, the wordings of the policies on their face require the course of employment to be contemporaneous with the sustaining of the injury [20]. Second, the wordings demonstrate a close link between the actual employment undertaken during each period and the premium agreed by the parties for the risks undertaken by the insurers in respect of that period. Third, on the insurers case there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to disease or injury in another later period [24]. Fourth, on the insurers case employers would be vulnerable to any decision by the insurers not to renew the policy. A decision not to renew might arise from the employers complying with their duty to disclose past negligence upon any renewal. Employers who discovered that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease would have such a duty. The insurers could then simply refuse any renewal or further cover [25]. Fifth, the way most of the policies deal with extra territorial issues throws doubt on any suggestion that the wordings are so carefully chosen that a court should stick literally to whatever might be perceived as their natural meaning [28]. Section 1 of the Employers Liability Compulsory Insurance Act 1969 also points the way to the correct interpretation. This states that every employer shall insure, and maintain insuranceagainst liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment. In order to give proper effect to the protective purpose of that legislation, the Act requires insurance on a causation basis [47]. There is no difficulty in treating the word contracted as looking to the causation of a disease, rather than its development or manifestation. The word contracted used in conjunction with disease looks to the initiating or causative factor of the disease [49]. While the word sustained may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later [50]. In relation to the second issue, the question is whether the EL policies cover employers liability for mesothelioma arising under the special rule in Fairchild/Barker [71]. Under that rule the law accepts a weak or broad causal link between the employers negligence and the employees mesothelioma. When construing the EL policies the concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule [74]. The purpose of the EL policies was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies [88]. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurers obligation to indemnify the employer [74]. Lord Phillips dissents on the second issue. The special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. This conclusion is not affected by section 3 of the Compensation Act 2009, which did not alter the jurisprudential basis of the Fairchild/Barker approach [132] [133].
These appeals concern refusals of leave to remain. Mr Patel and his wife, Mrs Patel (the Patels), arrived from India in the UK on 24 March 2009. Mr Patel had been granted leave to enter as a working holiday maker until 6 March 2011, and Mrs Patel had been granted leave as his dependant wife. Their only child was born here in 2010. On 26 February 2011, the Patels applied for further leave to remain, relying on article 8 (right to respect for family and private life) of the European Convention on Human Rights (the Convention), and rule 395C of the Immigration Rules (the rules). Their application was refused by the Secretary of State on 30 March 2011. That refusal was neither combined with, nor followed by, a decision to remove the family from the UK. The Patels argued that the Secretary of States failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. This argument was unsuccessful in both the Upper Tribunal and the Court of Appeal. Mr Alam, a Bangladeshi citizen, entered the UK on 26 August 2007 as a Tier 4 student with leave to remain until 12 April 2011. On 1 April 2011 he applied for leave to remain to continue his studies, and on 20 April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation. The bank statements submitted with his application were more than a month old and therefore did not show the necessary level of funds for a consecutive period ending no more than one month before the application. Mr Alam produced the appropriate bank statements by the First tier tribunal hearing, at which it was held that, whilst this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act, which had come into effect between the date of his appeal and the date of his hearing), this material could be taken into account in the appeal under article 8 of the Convention. The tribunal concluded that, since Mr Alam met the requirements of the rules, it would be disproportionate to refuse his application. The Upper Tribunal reversed this decision, holding that Mr Alams article 8 rights were not sufficiently strong to make his removal disproportionate. Mr Anwar, a Pakistani citizen, entered the UK on 26 February 2010 with leave to remain as a student until 1 April 2011. He applied to extend his leave as a Tier 4 student to enable him to complete his course. This application was supported by a Confirmation of Acceptance for Studies (CAS). On 10 May 2011 the Secretary of State refused the application because it had not included a document referred to in the CAS. On his appeal to the First tier Tribunal Mr Anwar produced the relevant document. The First tier Tribunal allowed his appeal, but this decision was set aside by the Upper Tribunal. Although there was a reference to the Convention in the grounds of appeal to the First tier Tribunal, no separate appeal on human rights grounds was pursued at the hearing before either tribunal. The Court of Appeal heard the appeals of Mr Alam and Mr Anwar together and dismissed them both. The Supreme Court unanimously dismisses all three appeals. Lord Carnwath, with whom the rest of the Court agrees, gives the majority judgment. In the Patel appeal the Court holds that the Secretary of State was under no duty to issue removal directions at the time of the decision to refuse leave to remain, and that the actual decision was not invalidated by her failure to do so. In the Alam and Anwar appeals, although the First tier tribunal was obliged under section 120 of the 2002 Act to consider the new evidence filed, this evidence did not significantly improve their respective cases under article 8 of the Convention. The sole issue in the Patel appeal relates to the segregation of the decision to refuse leave to remain from the decision to direct removal. The Patels argued, relying on the Court of Appeal decisions in Mirza [2011] Imm AR 484 and Sapkota [2012] Imm AR 254, that the failure to issue such a direction was not only unlawful in itself, but also undermined the validity of the previous decision to refuse leave to remain [25 26]. The Court agrees with the Court of Appeals reasons for not following the decisions in Mirza and Sapkota. Neither section 10 of the 1999 Immigration and Asylum Act nor section 47 of the Immigration, Asylum and Nationality Act 2006, which define the Secretary of States powers of removal, can be read as imposing an obligation to make a direction in any particular case, still less as providing any link between failure to do so and the validity of a previous immigration decision [27]. The Secretary of State was under no duty in the Patels case to issue removal directions at the time of the decision to refuse leave to remain, and the actual decision was not invalidated by failure to do so. Insofar as the decisions of the Court of Appeal in Mirza and Sapkota indicate the contrary, they were wrongly decided [30]. The Alam and Anwar appeals raise the issue of whether the statements and evidence filed by Mr Alam and Mr Anwar to the First tier Tribunal amounted to additional grounds under section 120 of the 2002 Act, which the First tier Tribunal was obliged to consider and determine notwithstanding the bar in section 85A of that Act [10]. Whether the evidence before the tribunal in support of a putative appeal against the refusal of leave to remain can be taken on human rights grounds depends on two propositions: that the tribunal was obliged to consider the new evidence in that context, and secondly, that, if it had done so, the evidence that the rules could have been complied with would significantly improve the human rights case under article 8 [33]. In Mr Anwars case no separate human rights grounds were advanced on his behalf before either tribunal and so the issue as to whether the tribunal would have been obliged to consider them, and if so to what effect, does not arise [58]. On the first proposition, the Court holds (agreeing with the majority in AS(Afghanistan) v Secretary of State [2011] 1 WLR 385) that section 85(2) of the 2002 Act imposes a duty on the tribunal to consider any potential ground of appeal raised in response to a section 120 notice, even if it does not directly relate to the issues considered by the Secretary of State in the original decision [34 44]. On the second proposition, in Mr Alams case the human rights case was considered but failed before the Upper Tribunal. Some weight was given to the circumstances in which he lost his ability to rely on the new evidence, but against this there was only the time he had spent in this country as a student under the rules. It would be surprising if that status, derived entirely from the rules, was sufficient in itself to add weight to a case for favourable treatment outside the rules. The Court holds that there was no error in the Upper Tribunals approach [59].
The appellant, Ms Wyatt, and the respondent, Mr Vince, were married on 18 December 1981 [9]. They had a son, and Mr Vince also treated Ms Wyatts daughter from a previous relationship as a child of the family. They separated in 1984 [10]. For around 8 years after that, Mr Vince pursued a new age travelling lifestyle [11]. Ms Wyatt brought up the children in straitened circumstances, and Mr Vince was not in a position to make any substantial financial contribution for them [17]. The couple divorced and their decree absolute was granted on 26 October 1992. Since the court file has apparently been mislaid it is unknown what, if any, order was made at the time regarding financial provision, but the court has no reason to believe that Ms Wyatts claims were dismissed [14]. Ms Wyatt went on to have two more children. From the late 1990s Mr Vinces green energy business took off [18] and he became a multi millionaire [7]. In 2001, the couples son went to live with Mr Vince. Ms Wyatts financial circumstances continued to be, and remain, very modest [6]. In 2011 Ms Wyatt made an application in the divorce proceedings for financial provision in the form of a lump sum. She also applied for interim payments to fund her legal costs [2]. Mr Vince cross applied for Ms Wyatts substantive application to be struck out pursuant to Rule 4.4 of the Family Procedure Rules 2010 (the family rules), which provides: (1) the court may strike out a statement of case if it appears to the court a) that the statement of case discloses no reasonable grounds for bringing or defending the application; b) that the statement of case is an abuse of the courts process or is otherwise likely to obstruct the just disposal of the proceedings On 14 December 2012 a deputy High Court judge dismissed Mr Vinces strike out application and ordered him to make interim periodical payments in respect of legal costs directly to Ms Wyatts solicitors (the costs allowance order). Mr Vince appealed, successfully, to the Court of Appeal to have the deputy judges orders set aside. The Court of Appeal struck out Ms Wyatts application for financial provision and ordered her to repay part of the money received under the costs allowance order [2]. She appealed to the Supreme Court. The Supreme Court unanimously allows the appeal [29] and directs that the wifes application proceed in the Family Division of the High Court [36]. The deputy judges costs allowance order is restored and the Court of Appeals repayment order set aside [41]. Lord Wilson (with whom Lady Hale, Lord Clarke, Lord Hughes and Lord Hodge agree) gives the judgment. The court examines the jurisdiction under Rule 4.4 of the family rules to strike out an ex spouses application for a financial order [3]. It can be inferred that the references to no reasonable grounds and abuse of the courts process in Rule 4.4 are intended to bear the same meaning as the equivalently worded strike out provisions in the Civil Procedure Rules (the civil rules) [23]. The civil rules also confer upon the court a further power to give summary judgment on the basis that the claimant or defendant has no real prospect of success and there is no other compelling reason why the case should be disposed of at a trial [24]. However, there is no equivalent power of summary judgment in the family rules [25]. This omission is deliberate. When an ex spouse applies for a financial order, the court has a duty under section 25(1) of the Matrimonial Causes Act 1973 (the 1973 Act) to determine that application having regard to all the circumstances, including the eight matters set out in subsection (2); this assessment is not apt for summary determination. The Court of Appeal was therefore wrong to insinuate a test analogous to summary judgment into the family rules. Both limbs of Rule 4.4 should be construed without reference to real prospects of success. An application has no reasonable grounds for the purposes of Rule 4.4(1)(a) only if it is not legally recognisable, e.g. because there has already been a final determination of the proceedings or because the applicant has remarried. Neither should an application be viewed as an abuse of process falling within Rule 4.4(1)(b) solely on the basis that it has no real prospect of success [27]. Ms Wyatts application is legally recognisable and is not an abuse of process [28] and her appeal against the strike out therefore succeeds [29]. Lord Wilson identifies the issues in the application for the purpose of efficient future case management [29]. Ms Wyatt faces formidable difficulties in seeking to establish that a financial order should be made in her favour, including the short duration of the marriage and the long delay since then [30 31]. It is not clear whether she will be able to sustain her claim on the basis of need generated by her relationship with Mr Vince [33]. However, section 25(2)(f) of the 1973 Act obliges the court to have regard to the contributions which each of the parties has made to the welfare of the family, including any contribution by looking after the home or caring for the family. Ms Wyatt will no doubt rely on her much greater contribution to the upbringing of the couples children over many years [34], a factor which may justify a financial order for a comparatively modest sum [36]. The court also considers the costs allowance order [3]. Mr Vince argued that even if Ms Wyatts application were not to be struck out, the deputy judge had been wrong to make the costs allowance order [37]. The threshold test for making such an order was whether Ms Wyatt could reasonably secure legal services by any other means [39]. Given that it would be unreasonable to expect her solicitors to continue to act without payment until the determination of her substantive application (as contended by Mr Vince), this test was satisfied [40].
These appeals raise questions about the availability of cross border group relief and the method of quantifying such relief. These questions arise in respect of claims made by Marks and Spencer plc (M&S) for group relief in respect of losses sustained by two of its subsidiaries: Marks and Spencer (Deutschland) GmbH (MSD), which was resident in Germany; and Marks and Spencer (Belgium) NV (MSB), which was resident in Belgium. In March 2001, M&S decided to withdraw from its continental European activity. MSD ceased trading in August 2001 and was dissolved following liquidation on 14 December 2007. MSB ceased trading on 22 December 2001 and was dissolved following liquidation on 27 December 2007. Between 2000 and 2008, M&S made several group relief claims in relation to losses sustained by MSD and MSB. The basic contention underlying all these claims was that the provisions in United Kingdom legislation which restricted group relief claims to losses of UK resident companies and, after the Finance Act 2000, losses of UK branches of non resident companies, were contrary to article 43 EC (now article 49 TFEU) on the freedom of establishment, and were thus unlawful. The first claims were originally made and refused by the Revenue (HMRC) more than ten years ago. The matter came before Park J, who made a reference to the CJEU. The CJEU ruled that article 43 EC did not preclude provisions of a Member State which prevented a resident parent company from claiming group relief for losses incurred by a subsidiary established in another Member State. The CJEU also ruled that it is contrary to articles 43 and 48 EC to preclude the possibility for the parent company to deduct from its taxable profits in that Member State the losses incurred by its non resident subsidiary where, in one Member State, the resident parent company satisfies two conditions: (i) the non resident subsidiary has exhausted the possibilities available in its State of residence of having the losses taken into account for the accounting period concerned by the claim for relief and also for previous accounting periods; and (ii) there is no possibility for the foreign subsidiarys losses to be taken into account in its state of residence for future periods either by the subsidiary itself or by a third party, in particular where the subsidiary has been sold to that third party. In giving effect to the CJEUs ruling, Park J, with whom the Court of Appeal agreed, held that the no possibilities test required an analysis of the recognised possibilities legally available given the objective facts of the companys situation at the relevant time, and that the test was to be applied at the date when the group relief claim was made. On the basis of that approach, the matter then made its way through the Tax Chamber of the First Tier Tribunal, and the Upper Tribunal, before reaching the Court of Appeal. Moses LJ, with whom Etherton and Lloyd LJJ agreed, disagreed with Park Js approach. They considered that the claimant should not be given an opportunity to take steps that might bring about a situation in which it could make a cross border claim. However, they concluded that they were bound by previous authority and could not depart from it. In the Supreme Court, four issues arise for consideration. The parties will be heard as to the answers to be given to three of those issues at a later date. The first of those issues addressed in this appeal concerns whether the CJEU decided it was contrary to article 43 EC to preclude cross border group relief in the Member State of the claimant company: (a) only where the taxpayer can show, on the basis of the circumstances existing at the end of the accounting period in which the losses in question arose, that there was no possibility of the losses in question being utilised in the Member State of the surrendering company in that accounting period, in any previous accounting period or in future accounting periods (as HMRC contend); or (b) where the taxpayer can show, on the basis of the circumstances existing at the date of the claim, that there has been no possibility of utilising the losses in the Member State of the surrendering company in any accounting period prior to the date of the claim and no possibility of such utilisation in the accounting period in which the claim is made or in future accounting periods (as M&S contend). The Supreme Court unanimously dismisses HMRCs appeal and adopts approach (b). Lord Hope gives the judgment of the Court. The exercise to be carried out is essentially a factual one. The claimant company ought to be given an opportunity to deal with it in as realistic a manner as possible. It would hardly ever be possible, if regard is had only to how matters stood at the end of the relevant accounting period, to exclude entirely the possibility that the losses in question might be utilised in the Member State of the surrendering company unless, of course, this was prevented by its local law. The CJEUs judgment in February 2013 in Case 123/11 Proceedings brought by A Oy makes clear that the claimant company is not required to be restricted to such an extent [30]. There is no indication that selecting the date of the claim is likely in practice to give rise to any difficulty. On the contrary, that date has the advantage of certainty, as the facts to be inquired into will not be susceptible to change between the making of the claim and the commencement of the inquiry. The entitlement to cross border relief is to be examined, as stated in approach (b), on the basis of the circumstances existing at the date of the claim [31]. The national court will, of course, be alert to the possibility that the claimant company may simply be choosing in which Member State it should be taxed. However, what M&S was doing can be attributed to the fact that the companies had ceased trading six years earlier, and not to the exercise of an option to choose where to seek relief for the losses that had been incurred. There is no reason to think that what it did must be seen as a threat to the balanced allocation of taxing powers [32]. Therefore, the question for inquiry is whether the claimant company has been able to show, on the basis of the circumstances known at the date when it makes its claim, that there has been no possibility of the losses in question being utilised in the Member State of the surrendering company in any accounting period prior to the date of the claim and no possibility of such utilisation in the accounting period in which the claim is made or in any future accounting periods [33].
In 2006, BNP granted to Marks & Spencer (M&S) sub underleases of four different floors in a building known as The Point in Paddington Basin, London W2 from 25 January 2006 to 2 February 2018. Any difference between the sub underleases is irrelevant for the purposes of the appeal, so it is only necessary to refer to one of them (the Lease). Under the Lease, the rent payable comprised a basic rent of 919,800 plus VAT which was payable yearly and proportionately for any part of a year by equal quarterly instalments in advance on the usual quarter days, and a car park licence fee of 6,000 per annum also payable by equal quarterly instalments in advance. The Lease also provided for the landlord to recover, by way of rent, (i) a fair proportion of the costs of insuring the building and (ii) a service charge in respect of services provided to the building. Clause 8 entitled M&S to determine the Lease on 24 January 2012 by giving BNP six months prior written notice (a break notice). A break notice would only have effect to determine the Lease on 24 January 2012 if: (i) there were no arrears of rent on that date (clause 8.3); and (ii) M&S paid BNP the sum of 919,800 plus VAT (clause 8.4). On 7 July 2011, M&S served a break notice on BNP. Shortly before 25 December 2011, M&S paid BNP the basic rent due on that date for the period from 25 December 2011 up to and including 24 March 2012. On or about 18 January 2012, M&S paid BNP 919,800 plus VAT. As a result of these payments, the break notice was effective and the lease determined on 24 January 2012. M&S subsequently brought a claim for the return of the apportioned basic rent in respect of the period from 25 January to 24 March 2012, contending that there should be implied into the Lease a term that, if the tenant exercised the right to determine the Lease on 24 January 2012, it should be entitled to a refund from the landlord of the proportion of the basic rent paid in respect of the period from the date of determination up to and including 24 March 2012. Similar claims were made by M&S in respect of the car park licence fee, the insurance rent and the service charge. The High Court held that M&S was so entitled. The Court of Appeal subsequently allowed BNPs appeal. M&S appeal to the Supreme Court. The Supreme Court unanimously dismisses M&Ss appeal. Lord Neuberger writes the leading judgment, with which Lord Sumption and Lord Hodge agree. Lord Carnwath and Lord Clarke both write concurring judgments. The test for implication of contractual terms The judicial approach to the implication of contractual terms represents a clear, consistent and principled approach [21]. A term will only be implied if it satisfies the test of business necessity or it is so obvious that it goes without saying [17 18]; it will be a rare case where only one of those two requirements are met [21]. The implication of a term is not critically dependent on proof of the actual intention of the parties. If one approaches the question by reference to what the parties would have agreed, one is concerned with the hypothetical answer of notional reasonable people in the position of the parties at the time they were contracting [21]. It is a necessary but not sufficient condition for implying a term that it appears fair or that one considers that the parties would have agreed it if it had been suggested to them [21]. The judgment of Lord Hoffmann in Attorney General of Belize v Belize Telecom [2009] 1 WLR 1988 did not dilute the test for the implication of contractual terms [24, 57 74, 75 77]. Application to the facts It is well established that rent, whether payable in arrear or advance, is not apportionable in time in common law [44]. Section 2 of the Apportionment Act 1870 provides that all rents and other periodical payments should be considered as accruing from day to day and be apportionable in respect of time accordingly [44]. There is no doubt that section 2 applies to rent payable in arrear [45]. The conclusion of the Court of Appeal in Ellis v Rowbotham [1900] 1 QB 740 that the 1870 Act did not apply to rent payable in advance, is correct [45 46]. This mirrors the position on a forfeiture, where a landlord who forfeits a lease under which the rent is payable in advance is entitled to the payment of the whole of the rent which fell due on the quarter day preceding the forfeiture [48]. Given the clear, general understanding that neither the common law nor statute apportion rent payable in advance on a time basis, it would be wrong, save in a very clear case, to attribute to a landlord and a tenant, particularly where they have entered into a full and professionally drafted lease, an intention that the tenant should receive back an apportioned part of rent payable and paid in advance [47, 51]. M&S argued that, had it paid the sum of 919,800 plus VAT due under clause 8.4 before 25 December 2011, it would have been known at that date that the lease would come to an end before 25 March 2012 and thus BNP would only have been due an appropriate portion of the basic rent on 25 December 2011, and that commercial common sense therefore mandated that it should be in the same position whether it paid the 919,800 plus VAT before or after 25 December 2011 [35 36]. This argument is rejected. Any anomaly in the working of the lease does not establish that the contract is unworkable or that the result is commercially or otherwise absurd [52]. The same conclusion applies to the car park licence fee and the insurance rent, but not to the service charge, in respect of which there is specific provision which contemplates repayment [55].
The respondent Ms Mitchell was convicted of the murder on 11 May 2009 of her former partner Anthony Robin. At the trial, she did not dispute that she had stabbed Mr Robin, but said she had acted in self defence. She also claimed that she had been provoked and that she did not have the intention to kill him or cause him really serious harm. The prosecution applied to adduce evidence of Ms Mitchells previous bad character for the purpose of showing that she had a propensity to use knives in order to threaten and attack others. The evidence related to two incidents in 2003 and 2007 in which she was said to have threatened and stabbed others with knives. None of the previous alleged incidents had resulted in a conviction. It was agreed between the prosecution and the defence that statements which contained details of the earlier incidents would be read out during the trial. The judge directed the jury to take [this evidence] into account or leave it out of account as you consider appropriate, but not to make any assumptions based on it as to Ms Mitchells guilt. On appeal, Ms Mitchell argued that the trial judge had failed to direct the jury properly on the purpose of the bad character evidence or the standard of proof to which the jury had to be satisfied before they could take it into account. The Court of Appeal allowed her appeal, quashed the conviction and ordered a re trial. At the re trial Ms Mitchell pleaded guilty to manslaughter and was acquitted of murder. The prosecution appealed to the Supreme Court against the quashing of the murder conviction. The Court of Appeal certified the following question of law: Is it necessary for the prosecution relying on non conviction bad character evidence on the issue of propensity to prove the allegations beyond a reasonable doubt before the jury can take them into account in determining whether the defendant is guilty or not? The Supreme Court unanimously dismisses the appeal and upholds the decision of the Court of Appeal to quash Ms Mitchells conviction for murder. In his judgment Lord Kerr (with whom Lord Clarke, Lord Hughes, Lord Toulson and Lord Hodge agree) clarifies how juries should treat evidence of similar facts or propensity. The prosecution argued that evidence in relation to propensity did not call for any special examination by the jury. It should be considered along with all the other relevant evidence so as to allow the jury to determine whether the defendants guilt was established to the criminal standard. It was not necessary that the issue of propensity be segregated from the generality of the evidence and a pre emptive decision made in relation to that issue, before the question of guilt or innocence of the accused was tackled [19]. The respondent argued that facts supporting the claim that the defendant had a particular propensity had to be proved beyond reasonable doubt. It was inconceivable that a jury could have a reasonable doubt as to the accuracy or veracity of the evidence said to underpin such a propensity and, nevertheless, accept that evidence as sufficient to establish its presence. [21] The Court recognises that there is a distinction between, on the one hand, proof of a propensity and, on the other, the individual underlying facts said to establish that a propensity exists. In a case in which several incidents are relied on by the prosecution to show a propensity on the part of the defendant, it is not necessary to prove beyond reasonable doubt that each incident happened in precisely the way that it is alleged to have occurred. Nor must the facts of each individual incident be considered by the jury in isolation from each other [39]. The proper issue for the jury in a case such as this is whether they are sure, beyond reasonable doubt, that the propensity has been proved. The jury is entitled to and should consider the evidence about propensity in the round [43]. This is both because the improbability of a number of similar incidents being false is a consideration for the jury and secondly because obvious similarities in various incidents may constitute mutual corroboration for those incidents. Nevertheless, the existence of propensity must be proved to the criminal standard. The Court rejects the prosecutions argument that propensity does not call for special treatment. The jury should be directed that if they are to take propensity into account, they should be sure that it has been proved. This does not require that each individual item of evidence said to show propensity must be proved beyond reasonable doubt. It means that all the material touching on the issue should be considered with a view to reaching a conclusion as to whether they are sure that the existence of a propensity has been established [44]. There is no need for the jury to consider each incident in hermetically sealed compartments [49]. In so far as the Court of Appeal in the present case suggested that each incident claimed by the prosecution to show a propensity on the part of the defendant required to be proved to the criminal standard, it was wrong. The proper question is whether the jury is satisfied that a propensity has been established. That assessment depends on an overall consideration of the evidence available, not upon a segregated examination of each item of evidence in order to decide whether it has been proved beyond reasonable doubt [54]. The trial judge failed to give adequate directions as to how the question of propensity should be approached by the jury, however. On that account the conviction was unsafe and had been properly quashed [56]. The Court emphasises, however, that propensity is, at most, an incidental issue. It should be made clear to the jury that the most important evidence is that which bears directly on the guilt or innocence of the accused person. Propensity cannot alone establish guilt [55].
The main issue in this appeal is whether, and if so which and in what circumstances, breaches of public law are capable of rendering unlawful the detention of foreign national prisoners (FNPs) pending their deportation. Section 3(5)(a) of the Immigration Act 1971 (the 1971 Act) confers on the Secretary of State for the Home Department a power to deport foreign nationals. Schedule 3 of the 1971 Act empowers the Secretary of State, in certain specified circumstances, to detain foreign nationals pending deportation. From at least 1991, the Secretary of State had maintained a published policy on the application of the power to detain. This policy presumed in favour of release whilst justifying detention in some circumstances. However, following adverse publicity in April 2006, the Secretary of State adopted a new policy which was not published. Between April 2006 and September 2008, the Secretary of State applied this unpublished policy which imposed a near blanket ban on release of FNPs. On 9 September 2008, the Secretary of State amended the published policy to replace all references to a presumption of release with a presumption of detention. However, on 22 January 2009, following the decision of Davis J in the current proceedings, the published policy was amended again to omit references to a presumption of detention. Walumba Lumba is a citizen of the Democratic Republic of Congo. He entered the UK unlawfully in April 1994. He was later convicted of a number of offences and was sentenced to 4 years imprisonment for wounding with intent on 12 January 2004. On 3 April 2006, the Secretary of State informed Mr Lumba of the intention to deport him. He was due to be released from prison in June 2006, but was informed that he was to be detained pending deportation. He left the United Kingdom voluntarily on 13 February 2011. Kadian Mighty is a citizen of Jamaica. He was granted indefinite leave to remain in the UK in February 2003. On 27 June 2003 he was sentenced to 42 months imprisonment for possession of a Class A drug with intent to supply. On 10 May 2006, the Secretary of State informed Mr Mighty of the intention to deport him. On 19 May 2006, he was detained pending deportation. However, he was released on bail on 28 July 2008. Mr Lumba issued proceedings on 18 October 2007 claiming a declaration that his detention was unlawful and damages. His case was joined with that of Mr Mighty who had issued proceedings on 29 May 2008. In addition, Mr Lumba, who remained in detention until his departure from the United Kingdom, challenged the reasonableness of the duration of his detention and sought a mandatory order that he be released. At first instance ([2008] EWHC 3166 (Admin)), Davis J granted declarations to the effect that it was unlawful for the Secretary of State to operate an unpublished policy which presumed in favour of detention. He dismissed the other claims, including the claims for damages for unlawful detention. The appellants appealed and the Secretary of State cross appealed on the issue of the presumption of detention. The Court of Appeal (Lord Neuberger MR, Carnwath and Stanley Burnton LJJ) allowed the cross appeal but otherwise dismissed the appeals ([2010] 1 WLR 2168). The Supreme Court, by a majority, allows the appeals. Lord Dyson gives the lead judgment. The majority hold that the Secretary of State is liable to both appellants in the tort of false imprisonment as the statutory power to detain them was exercised in breach of public law duties (Lords Phillips, Brown and Rodger dissenting). The appellants are, however, only entitled to nominal damages assessed at 1 (Lords Hope, Walker and Lady Hale dissenting). They are not entitled to exemplary damages. The court remits to the High Court the question whether Mr Lumba was detained for longer than a reasonable period in breach of the principles in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 (the Hardial Singh principles). The court considers five issues: (1) whether the unpublished policy maintained by the Secretary of State between April 2006 and September 2008 is unlawful on grounds of public law error; (2) if so, whether detention on the basis of such a policy is unlawful in circumstances where the appellants would have been lawfully detained in any event; (3) if so, whether the appellants are entitled to recover more than nominal damages; (4) whether the appellants are entitled to an award of exemplary damages; and (5) in the case of Walumba Lumba, whether there has been a breach of the Hardial Singh principles. The requirements of public law The court holds unanimously that it is lawful for the Secretary of State to operate a policy which sets out the practice that she will normally follow in deciding whether or not to detain FNPs pending their deportation, provided that the requirements of public law, Hardial Singh and Article 5(1)(f) of the ECHR are respected: [40] [55]. However, as regards the application of the statutory power to detain, it is unlawful in public law for the Secretary of State to maintain an unpublished policy which is inconsistent with her published policy and which applies a near blanket ban on the release of FNPs: [26] [38]. Such a policy was applied to the appellants between April 2006 and September 2008: [21]. Liability in false imprisonment Breach of a public law duty on the part of the person authorising detention is capable of rendering that detention unlawful and did render it unlawful in this case: [62] [88], [198] [207], [221]. Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. Accordingly, by a majority, the court holds that the fact that the appellants would have lawfully been detained in any event does not affect the Secretary of States liability in false imprisonment: [62], [64] [88], [197], [208] [211], [221], [239] [247]. Lords Phillips and Brown (with whom Lord Rodger agrees) dissent and hold that because the appellants would have been lawfully detained the Secretary of State is not liable to them in false imprisonment: [319] [334], [343] [360]. Damages By a majority, the court holds that the fact that the appellants would have been lawfully detained is relevant to damages rather than to liability. Since the appellants have suffered no loss they should recover no more than nominal damages of 1: [90] [96]. They are not additionally entitled to damages to vindicate the importance of the right and the seriousness of the infringement: [97] [101], [222] [237], [253] [256] (Lords Hope, Walker and Lady Hale dissenting: [176] [180], [195], [212] [217]). Further, the court holds unanimously that the appellants are not entitled to exemplary damages: [150] [169]. Reasonableness of the length of detention under the Hardial Singh principles As regards the assessment of whether a reasonable period of detention has elapsed, the court unanimously holds that the risk of reoffending and the legal challenges pursued by the detainee are relevant. The relevance of a refusal to voluntarily return is limited: [106] [128]. It is for a court of first instance to decide whether Mr Lumbas detention for almost 56 months was in breach of the Hardial Singh principles. Accordingly, his claim is remitted to the High Court: [129] [148].
Lukaszewski (L), Pomiechowski (P) and Rozanski (R) are Polish citizens who are each the subject of a European Arrest Warrant (EAW) issued by the Polish court. Each is wanted in order to serve an existing sentence. L is wanted, in addition, to stand trial on ten charges of fraud. The fourth appellant, Halligen (H), is a British citizen whose extradition is sought to the USA under Part 2 of the Extradition Act 2003 (the Act) to face allegations of wire fraud and money laundering. All four appellants were arrested and brought before Westminster Magistrates Court. L, P and Rs extradition were ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Hs case was sent to the Secretary of State for her to decide whether H should be extradited. On 22nd December 2010, Hs extradition was ordered by the Secretary of State, and the order and a letter setting out the Secretary of States reasons were sent by post and fax (at either 15.48 or 16.48) to Hs solicitors on that same day. All four appellants were remanded in custody at HMP Wandsworth pending extradition. The permitted time period for giving notice of appeal against an extradition order was 7 days in the case of L, P and R, and 14 days in the case of H. L, P and R were each assisted by a prison officer working in the legal services department at HMP Wandsworth to complete a notice of appeal. The legal services department faxed the notices of appeal to the Administrative Court for filing and stamping, which faxed back a copy of the sealed front page to the legal services department. The legal services department then faxed to the Crown Prosecution Services (CPS), as legal representatives of the judicial authority of the state requesting surrender, a copy of the sealed front page together with a cover sheet. In the case of each of L, P and R, all this occurred within the 7 day permitted period. However, in each case, the CPS was not served with a full copy of the notice of appeal, sealed or unsealed, until after the 7 day time limit had expired. The High Court held it had no jurisdiction to hear the appeals. A notice of appeal had to be both filed and served within the non extendable permitted period, and must (a) identify the appellant, (b) identify the decision against which he seeks to appeal, and (c) set out at least the gist of the basis on which the appeal is sought to be presented. Accordingly, the purported notices of appeal were invalidly constituted and served out of time. Hs solicitors prepared a notice of appeal, attaching grounds of appeal, on 23rd December 2010. The notice of appeal was filed and stamped on 29th December 2011, well within the 14 day permitted period which expired at midnight on 4th January 2011. However, only on 5th January 2011 did Hs solicitors send the notice of appeal to the CPS by fax and to the Home Office by post (reaching the latter on 6th January 2011). H himself had written from prison by fax to the Home Office on 29th December 2010 asking them to accept the letter as notice & service of my intent to appeal that decision and stating that he had instructed solicitors for that purpose. The High Court held it had no jurisdiction to hear Hs appeal, that Hs letter of 29th December 2011 did not constitute a valid notice of appeal, and the Secretary of State should be treated as having informed H of her decision on 22nd December, not 23rd December, 2011, so that the purported notice of appeal was in any event served out of time. All four appellants appealed the decisions of the High Court to the Supreme Court. The Supreme Court allows all four appeals unanimously. Lord Mance gives the leading judgment of the Court. Lady Hale gives a separate concurring judgment. The requirement under the Act that a notice of an appeal be given within the relevant permitted period meant that it had to be filed in the High Court and served on all respondents to the appeal within such period (following the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL 2) [5], [17]. However, a generous view should be taken of this requirement, bearing in mind the shortness of the permitted periods under the Act and that what really matters is that an appeal should have been filed and that all respondents be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal [18]. In the cases of L, P and R, the irregularity involved in the absence of pages following the sealed front page of their notices of appeal was capable of cure. The CPS, having received in time the sealed front page of each notice of appeal, can have had no difficulty in identifying the decisions being appealed. It would be disproportionate if the practice followed by the court and the prison legal services department should lead to the appellants losing their right of appeal [19]. The Court regards Hs letter as notice to the Secretary of State of an appeal within the Act, albeit that the letter was highly irregular in its form [20]. However, even if it is accepted that Hs solicitors only received the relevant fax from the Secretary of State at 16.48, there was no basis for deeming the fax to have been received the following day. It follows that no notice of an appeal was given to the CPS within the permitted period, and Hs appeal is on its face impermissible as against both respondents [21]. In these circumstances, the question for the Court is whether the apparently inflexible time limits for appeals within the Act are subject to any qualification or exception [22]. Under Article 6(1) of the Human Rights Convention, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of any criminal charge against him. The Court is satisfied that extradition does not involve the determination of a criminal charge [31]. However, H, as a UK citizen, enjoyed a civil right to enter and remain in the UK as and when he pleased [32]. Proceedings under the Act, in that they may affect Hs freedom to remain in the UK, at least for the duration of foreign extradition proceedings, involve the determination of that civil right [32]. It follows that the extradition proceedings against H fall within Article 6(1) [33]. In the case of a UK citizen, the statutory provisions concerning appeals can and should be read (pursuant to the obligation of conforming interpretation under section 3(1) of the Human Rights Act 1998) as being subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1). Accordingly, the Court allows all four appeals and remits each appeal against extradition to the High Court to be heard there [19], [41].
From 1922 successive items of legislation authorised the detention without trial of persons in Northern Ireland, a regime commonly known as internment. The way in which internment operated then was that initially an interim custody order (ICO) was made, under article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 (the 1972 Order), where the Secretary of State considered that an individual was involved in terrorism. On foot of the ICO that person was taken into custody. The person detained had to be released within 28 days unless the Chief Constable referred the matter to the Commissioner, who had the power to make a detention order if satisfied that the person was involved in terrorism. If not so satisfied, the release of the person detained would be ordered. An ICO was made in respect of the appellant on 21 July 1973. He was detained on foot of that ICO, attempted to escape from detention twice and was twice convicted of attempting to escape from lawful custody on 20 March 1975 and 18 April 1975. Following the disclosure of an opinion of JBE Hutton QC dated 4 July 1974, published in line with the 30 years rule, and which suggested that it was a condition precedent to the making of an ICO that the Secretary of State should have considered the matter personally, the appellant challenged the validity of the ICO dated July 1973. He argued that the ICO was invalid because the Secretary of State did not personally consider whether the appellant was involved in terrorism, and consequently argues that his following detention and convictions were also unlawful. The Court of Appeal in Northern Ireland dismissed his appeal. The appellant appeals to this court against the Court of Appeals judgment. The Supreme Court unanimously allows the appeal. It holds that the power under article 4 of the 1972 Order should be exercised by the Secretary of State personally, and, therefore, that the making of the ICO in respect of the appellant was invalid, and that his consequent detention and convictions were unlawful. Lord Kerr gives the judgment with which the other members of the court agree. The question for the court was whether the making of an ICO under article 4 of the 1972 Order required personal consideration by the Secretary of State of the case of the person subject to the order or whether the Carltona principle operated to permit the making of such an Order by a Minister of State [8]. The Carltona principle relates to the decision of the Court of Appeal in Carltona Ltd v Comrs of Works [1943] 2 All ER 560, which accepted as a principle of law that the duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department [9]. Lord Kerr considered the case law relied upon by the Court of Appeal to determine whether Parliament in the present case had intended to disapply the Carltona principle in the present case at [10 27]. He disagreed with the Court of Appeals understanding of the judgment of Brightman J in In re Golden Chemicals Products Ltd [1976] Ch 300, finding that Brightman J held that the seriousness of the subject matter was not a consideration which was relevant at all in deciding whether the power should be exercised by the Minister or by an officer in his department. He considered that the Court of Appeal in this case was right to hold that the seriousness of the consequences is a consideration to be taken into account and, to the extent he suggested otherwise, Brightman J was wrong [13 14]. Next, Lord Kerr considered Oladehinde v Secretary of State for the Home Department [1991] 1 AC 254. There, the Court concluded that the statutory wording relating to the power under challenge was not, unlike complementary provisions in the relevant Act, expressly limited by way of words such as not [to be exercised] by a person acting under his authority. The absence of such express limitation of the power in question was a clear indication that Carltona there was not disapplied in that case [15 16]. Oladehinde did not consider whether the seriousness of the consequences was a relevant consideration [17]. Lord Kerr then considered Doody v Secretary of State for the Home Department [1992] 3 WLR 956. There, Carltona was held not to have been disapplied because (1) it was established in evidence that a considerable burden would fall on the Secretary of State if he was to exercise the power personally and (2) there was no express or implied requirement in the Act in question that the Secretary of State exercise the power personally [18 19]. Neither consideration obtained on the facts of this case; Doody was therefore distinguishable [19 20]. However, Lord Kerr observed that in Doody there had been implicit acknowledgement that the seriousness of the consequences is a consideration to be taken into account [21]. Lord Kerr did not consider that R v Harper [1990] NI 28 assisted in the resolution of the present appeal [23]. He then analysed McCaffertys Application [2009] NICA 59, where it was suggested that there is a presumption in law that Parliament intends Carltona to apply generally. Lord Kerr did not consider it necessary to determine whether such presumption indeed exists, given that he considered the statutory language on the facts unmistakably clear. However, he expressed an obiter view that there is no such presumption at law, and that cases should instead proceed on a textual analysis of the framework of the legislation in question, the language of pertinent provisions in the legislation and the importance of the subject matter, rather than the application of a presumption [25 26]. Lord Kerr then turned to the relevant legislation. He observed that paragraphs 1 and 2 of article 4 have two noteworthy features. First, there is the distinct segregation of roles. In paragraph 1 the making of the Order is provided for; in paragraph 2, the quite separate function of signing the ICO is set out. He concluded that, if it had been intended that the Carltona principle should apply, there is no obvious reason that these roles should be given discrete treatment [31]. The second noteworthy feature of article 4(2), when read with 4(1), is that the ICO to be signed is that of the Secretary of State. The use of the words, of the Secretary of State indicates that the ICO is one which is personal to him or her, not a generic order which could be made by any one of the persons named in paragraph 2 [32]. Lord Kerr thus reached the following overall conclusions. First, even if a presumption exists that Parliament intends Carltona to apply, it is clearly displaced on the facts by the proper interpretation of article 4(1) and 4(2) read together [37]. Second, the consideration that the power invested in the Secretary of State by article 4(1) a power to detain without trial and potentially for a limitless period was a momentous one provides insight into Parliaments intention and that the intention was that such a crucial decision should be made by the Secretary of State personally [38]. Third, there was no evidence that this would place an impossible burden on the Secretary of State [39]. In conclusion, Parliaments intention was that the power under article 4(1) of the 1972 Order should be exercised by the Secretary of State personally. The making of the ICO in respect of the appellant was invalid. It follows that he was not detained lawfully and was wrongfully convicted of the offences of attempting to escape from lawful custody. His convictions for those offences must be quashed [40 41].
The five respondents arrived in the United Kingdom illegally and claimed asylum. They had all travelled to the United Kingdom via at least one other member state of the European Union in which they had already claimed asylum. In each case, the Secretary of State requested those states to take responsibility for examining the asylum claims pursuant to Parliament and Council Regulation (EU) No 604/2013 of 2013 (Dublin III or the Regulation). Each member state ultimately agreed to that request. Each of the respondents was detained for a period of time pending his or her removal from the United Kingdom pursuant to paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (the 1971 Act). In 2015, the Secretary of State had published a policy in relation to such detention in Chapter 55 of her Enforcement Instructions and Guidance (the EIG). The respondents challenged the lawfulness of their detention by bringing claims against the Secretary of State for the Home Department. The High Court dismissed the challenges of the first to fourth respondents, but the detention of the fifth respondent was found to have been unlawful. The first to fourth respondents appealed to the Court of Appeal. In the case of the fifth respondent, the Secretary of State appealed to the Court of Appeal. By a majority, the Court of Appeal allowed the appeals of the first to fourth respondents and dismissed the Secretary of States appeal. The Secretary of State now appeals to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Kitchin gives the sole judgment, with which Lady Hale, Lord Reed, Lord Wilson and Lady Arden agree. There were two particular questions before the Supreme Court [2]. First, was the detention of each respondent lawful, given that article 28 of the Regulation permits detention where there is a significant risk of absconding? The phrase risk of absconding is defined in article 2(n) of the Regulation as the existence of reasons in an individual case, based on objective criteria defined by law, to believe that the person might abscond. Secondly, if the detention was not lawful, are damages payable either under domestic law for false (or wrongful) imprisonment, or pursuant to what is known as the Factortame principle established in Brasserie du Pecheur SA v Germany; R v Transport Secretary; Ex p Factortame Ltd No 4 (Joined Cases C 46/93 and C 48/93) [1996] QB 404? A policy such as that embodied in Chapter 55 of the EIG is published so that an individual affected by it knows the criteria by which the executive has chosen to exercise the power conferred upon it by statute. Its publication also allows the individual to make appropriate representations in relation to that exercise of power as it affects him or her [49]. The executive must follow its stated policy unless there are good grounds for not doing so [50]. Chapter 55 does not establish objective criteria for the assessment of whether an applicant for international protection who is subject to a Dublin III transfer procedure may abscond. Its contents do not constitute a framework with certain predetermined limits. Further, it does not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which is binding and known in advance. Therefore, the Court of Appeal was right to hold that Chapter 55 cannot satisfy the requirements of articles 28(2) and 2(n) of the Regulation [65]. Chapter 55 does not satisfy the requirements laid down by the Court of Justice of the European Union in Policie R, Krajsk editelstv policie steckho kraje, odbor cizineck policie v Al Chodor (Case C 528/15) [2017] 4 WLR 125. Because Chapter 55 does not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which is binding and known in advance, it lacks the necessary qualities of certainty and predictability. It therefore does not constitute a law for the purposes of articles 28(2) and 2(n) [74]. A broader question is whether a statement of policy and public law adherence to it can ever amount to a binding provision of general application and so a law within the meaning of article 2(n) [75]. That question should be decided in a case in which it is necessary to do so [79]. Any claim by the respondents for damages under European Union law must be judged by reference to the principles established in Francovich v Italy (Case C 6/90) [1993] 2 CMLR 66 and Factortame. However, those principles do not constrain the claim by the respondents for damages for wrongful imprisonment [88]. In R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245, the Supreme Court considered the test for when a public law error bearing upon and relevant to a decision to detain can found a claim for damages for false imprisonment. That test is met in the cases in this appeal. There was a requirement for a binding provision of general application containing objective criteria underlying the reasons for believing that an applicant might abscond, and that requirement was not satisfied. This was fundamental to the decision to detain and it makes no difference whether the source of that requirement lay in European Union or domestic legislation [98]. Chapter 55 did not comply with articles 28(2) and 2(n) of the Regulation, with the consequence that, in the case of each of the respondents, the decision to detain lay outside the scope of any legitimate exercise of the discretion conferred by Schedule 2 to the 1971 Act. The ingredients of the tort of wrongful imprisonment were undoubtedly present. The right under domestic law to claim damages for wrongful imprisonment is not dependent on the law being clear. Nor is it dependent upon whether the illegality is the consequence of a failure to comply with European Union legislation (as in this case) or has some other cause [101]. The majority in the Court of Appeal were right to hold that the respondents were wrongfully detained. The respondents are entitled to compensation under domestic law for any loss that the wrongful detention has caused them [105, 114]. The Secretary of States submission that the respondents should only be entitled to nominal damages is rejected [106 112]. It is not necessary in this appeal to consider the respondents alternative claim for damages under European Union law, since it is not contended that any such damages would exceed those payable for false imprisonment under domestic law [113]. The County Court will assess the amount of damages, if it cannot be agreed [114].
The parties entered into a fixed sum credit agreement on 20 April 2005 whereby Southern Pacific Securities (the respondent) loaned Mr and Mrs Walker (the appellants), the sum of 17,500. In addition to the loan a Broker Administration Fee of 875 was advanced to the appellants to enable them to pay for the arrangement of the loan. Interest was payable on the Broker Administration Fee at the same rate as on the loan of 17,500. The credit agreement set out the Amount of Credit as 17,500 (being the loan) and the Total Amount Financed as 18,375 (being the loan together with the Broker Administration Fee). Under the Consumer Credit Act 1974 (the Act) agreements predating 6 April 2007 are only enforceable if they contain certain prescribed terms (section 127(3)). The prescribed terms for agreements such as the one entered into by the parties in this case included a term stating the amount of credit. Section 9 of the Act defines credit as including a cash loan, and any other form of financial accommodation (section 9(1)) and provides that for the purposes of the Act an item entering into the total charge for credit shall not be treated as credit even though time is allowed for its payment (section 9(4)). The appellants are in arrears on the loan payments, owing at least 40,000, and risk losing their home. On 21 June 2007, a District Judge granted a suspended order for possession of the property. They appealed to the Circuit Judge, arguing that the credit agreement incorrectly states the amount of credit and therefore, by section 127(3) of the Act, the credit agreement is unenforceable. The appellants case is that the true amount of credit was not 17,500 but 18,375, which is the amount shown in the agreement as the Total Amount Financed. The Appellants succeeded in the Chester County Court on 27 April 2009, and the judge ordered the discharge of the charge registered on their property. The Court of Appeal allowed the respondents appeal on 12 November 2009. The issue in the appellants appeal to the Supreme Court is the correct definition of an amount of credit under the Act, and whether the Act permits interest to be charged on a sum (such as the Broker Administration Fee) which is not part of the total amount of credit but rather is a charge for credit. The Supreme Court unanimously dismisses the appeal, essentially for the reasons given by the Court of Appeal. Although the Broker Administration Fee of 875 was advanced to the appellants and repayable with interest, it was part of the total cost of, or charge for, credit and therefore cannot be treated as part of the credit. Lord Clarke delivered the judgment of the Court. Section 9(4) of the Act provides that an item entering into the total charge for credit shall not be treated as credit. It follows that if an item is part of the total charge for credit, it cannot form part of the amount of credit. The relevant authorities stress that the first step is to assess the total charge for credit so that those items financed by the creditor which form part of the charge for credit can be identified and stripped out before the amount of credit is determined (paras [14] [16]). The Act does not define charge for credit. Following Watchtower Investments Ltd v Payne [2001] EWCA Civ 1159, in determining the charge for credit, the court must decide the true cost to the appellants of the credit provided under the agreement. In this case, two items were the subject of debate: the Broker Administration Fee and the interest charged on that fee. In the courts judgment there was no doubt that the Broker Administration Fee was part of the total cost of the credit. It was a fee paid to intermediary brokers and, as such, was a cost to the appellants of borrowing the 17,500. Once it is accepted that the fee was part of the total charge for credit, it follows that it must be stripped out of the amount of credit and, by section 9(4) of the Act, cannot be treated as credit. If the fee had been expressed in the agreement as part of the amount of credit so that the amount of credit was shown as 18,375, the agreement would have been unenforceable, as was held in Wilson v First County Trust Ltd [2001] QB 407 (paras [18] [19]). The court then considered whether that conclusion is affected by the fact that the respondent was lending the fee at a rate of interest. The court concluded it is not. Section 9(4) does not prohibit the charging of interest. If the fee itself was part of the total charge for credit, it follows that interest on the fee was also part of the total charge for credit and cannot be treated as credit. Contrary to the Appellants submissions, interest is not a necessary feature or indicator of credit (paras [20] [24]).
On 2 December 2003 the Respondents, four police officers serving in the Metropolitan Police Service (the officers), took part in the arrest of a suspected terrorist, BA. BA subsequently made allegations that the officers had seriously assaulted and injured him during the arrest. In October 2004, the Independent Police Complaints Commission (IPCC) decided that one charge should be brought against the First Respondent. That charge was dismissed in April 2005. Between 14 January and 2 February 2005 the IPCC released the officers identities into the public domain. This led to threats of serious violence to the officers and their families on a website that supported BA. On 18 October 2007 BA commenced civil proceedings against the Appellant Commissioner in which he alleged that the Commissioner was vicariously liable for the serious assaults that he alleged the officers had inflicted on him. The officers were not parties to these proceedings. On 18 March 2008 the officers attended a meeting with legal advisers instructed on behalf of the Commissioner. The officers subsequently alleged that they were assured at this meeting that the Commissioners legal advisers were also acting for them. The officers maintain that at a second meeting with legal advisers instructed on behalf of the Commissioner on 11 March 2009 they were told that the legal team was no longer representing their interests but only those of the Commissioner. The trial of BAs claim commenced on 16 March 2009. The officers declined to give evidence voluntarily without special measures to protect their identity being put in place. On the third day of the trial, the claim was settled with an admission of liability by the Commissioner and an apology for the gratuitous violence to which BA had been subjected by the officers. The officers maintain that a press release issued by the Commissioner after trial was tantamount to endorsing their culpability. In June 2011, the officers were all acquitted in the Crown Court of charges of assault occasioning actual bodily harm arising out of the arrest of BA. On 23 September 2013, the officers commenced the present proceedings against the Commissioner seeking compensation for reputational, economic and psychiatric damage. They advanced three claims: (i) a retainer had arisen between them and the Commissioners legal team, (ii) the Commissioner had assumed a duty of care by reason of the assurances, and (iii) the Commissioner owed them a duty to take reasonable care to safeguard their safety, health, welfare (including economic and professional welfare) and reputational interests in the preparation and conduct of the defence of BAs claim. On 1 May 2015 the judge struck out these claims. The judge found, amongst other things, that the officers had no direct interest in the litigation between the Commissioner and BA and the possibility of consequential impact on their reputations was insufficient to create such an interest to which the Commissioner would be legally required to have regard. The officers appeal to the Court of Appeal was successful in part. The Court of Appeal held that it was arguable that the Commissioner owed a duty of care to the officers to safeguard their economic and reputational interests and that this extended to the Commissioners conduct of the litigation. The Commissioner now appeals to the Supreme Court solely on this issue. The Supreme Court unanimously allows the appeal. Lord Lloyd Jones gives the judgment with which the other Justices agree. Although police officers have no contract of employment, the officers relied heavily on the analogy of the implied term in employment contracts of mutual trust and confidence between employer and employee [16]. However, the Court was not referred to any decided case in any jurisdiction which holds that the duty of care for which the officers contend can be derived from this mutual implied term [17]. To derive such an obligation would be to move substantially beyond the specific derivative duties established in previous cases [18 20]. The existence of the proposed duty must be established in the tort of negligence [21]. This is clearly a case in which it is sought to extend a duty of care to a new situation. In determining whether such a duty should be recognised the law will proceed incrementally and by analogy with previous decisions (Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4). The proposed duty will also be tested against considerations of legal policy and the coherent development of the law [22 23] The common law does not usually recognise a duty of care in the tort of negligence to protect reputational interests [23]. The decision in Calveley v Chief Constable of Merseyside Police [1989] 1 AC 1228 has an important bearing on the present case. There it was held that a Chief Constable does not, in principle, owe a duty of care to protect the economic and reputational interests of his officers in respect of the prosecution of an investigation or disciplinary proceedings against them. It is therefore difficult to see why a Chief Constable should owe a duty to his officers as to the manner in which he defends a claim brought against him by a third party, especially considering that, in such a claim, the Chief Constables role is essentially responsive to allegations made by the third party [25 26]. The fact that the recognition of a duty of care may potentially subject an individual to conflicting duties does not necessarily preclude its imposition but in such cases it is necessary to have regard to the competing underlying policy considerations [28 29]. The interests of an employer who is sued on the basis that he is vicariously liable for the tortious conduct of his employees differ fundamentally from the interest of those employees [30]. The possibility of contribution proceedings between employer and employee highlights the potential for conflicts of interests [31]. These stark differences in interests strongly suggest that it would not be fair, just or reasonable to impose on an employer a duty of care to defend legal proceedings so as to protect the economic or reputational interests of his employees. It is not realistic to suggest that this potential for conflict can be overcome by recognition of a duty of care up to the time at which an actual conflict arises [32]. Moreover, in the context of the present case, the Commissioners public duties are inconsistent with the imposition of such a duty of care [33]. Considerations relating to legal policy and the practical conduct of proceedings also weigh heavily against the duty for which the officers contend. For instance, parties to a dispute should be able to conduct litigation in order to resolve their disputes without fear of incurring liability to third parties [34 38]. Finally, the officers argue that, because both they and the Commissioner had a common interest in the outcome of BAs claim, they would have been able to rely on common interest privilege in asserting an entitlement to the disclosure of material in the possession of the Commissioner which is privileged against disclosure to others. However, the cases show that something more than a shared interest in the outcome of litigation is required before common interest privilege can be used in this manner. Legal professional privilege is, therefore, a further policy consideration that weighs against the recognition of the duty of care for which the officers contend [39 46].
This appeal concerns provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the Act) designed to address the problem of entrapped patients, namely those who no longer require the level of security afforded by the state hospital but for whom appropriate local services are not available [3 11]. The appellant, G, was tried for rape, assault and breach of the peace in 1998 and acquitted on the ground of insanity. He is detained at the state hospital at Carstairs under a compulsion order and a restriction order. G made an application under section 264(2) of the Act. It provides that the mental health tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only at the state hospital, make an order (a) declaring that he is being detained in conditions of excessive security, and (b) specifying a period not exceeding 3 months during which certain duties shall be performed [28 29]. These include the identification of a hospital, which is not a state hospital, in which the patient could be detained in appropriate conditions and in which accommodation is available for him [31]. Decisions under section 264(2) are among those functions that must be discharged having regard, insofar as relevant, to the matters set out at section 1(3) of the Act. These include the wishes and feelings of the patient (s.1(3)(a)), the importance of providing the maximum benefit to him (s.1(3)(f)), and the need to ensure that, unless it can be justified, he is not treated less favourably than a non patient in a comparable situation would be (s.1(3)(g)) [12 18]. Section 1(4) provides that the function must be discharged in the manner that appears to the person discharging it to involve the minimum restriction on the freedom of the patient that is necessary in the circumstances, after having regard to matters including those in section 1(3) and such other matters as are relevant in the circumstances [22]. Gs application was refused. At the first stage of its section 264(2) analysis, the tribunal found G did not require to be detained under conditions of special security that could be provided only at the State Hospital. At the second stage, when considering whether to exercise its discretion to make an order, it had regard to section 1, referring in particular to maximum benefit (section 1(3)(f)) and to the least restrictive option (s.1(4)). It did not expressly mention the other provisions of section 1(3), (5) or (6). It found [47 53] that he had recently been subject to the lowest level of security at Carstairs. He continued to pose some risk of sexual violence towards women and the best way of managing it could only be determined once he had undertaken and completed satisfactorily a course of psychological treatment for sexual offending. The psychology department at Carstairs was best placed to deliver this treatment, and the tribunal was concerned that G was less likely to engage in it in a medium secure hospital. Consequently, there was a significant risk that he would become trapped in the medium secure system. The risk he posed meant he would need to be subject to greater restrictions on his movements in a medium secure hospital than at Carstairs unless and until he completed the necessary treatment, which could take 12 to 18 months. There was a significant risk of consequential mental health problems. The tribunal found that it was of maximum benefit to G that he remain at Carstairs. Gs appeal to the Court of Session was refused. Before the Supreme Court, he argues that the tribunal: (i) failed to exercise its discretion in accordance with the purpose of section 264: subsection (2) should be interpreted as conferring only a residual discretion to refuse an order in exceptional circumstances at stage 2 where a decision favourable to the application had been reached at stage 1; (ii) was influenced at stage 2 by the risk G posed to women, when consideration of risk ought to have been confined to stage 1; (iii) placed weight on the unavailability of suitable resources elsewhere an irrelevant factor; (iv) failed to have regard to his wishes and feelings and to the need to avoid discrimination; and (v) elevated the importance of providing maximum benefit (s.1(3)(f)) above the least restrictive alternative principle (s.1(4)). The Supreme Court unanimously dismisses the appeal. Lord Reed, with whose judgment the other Justices agree, addresses each ground of appeal as follows: (i) The tribunal understood that section 264(2) involved two stages and what those stages were. Once stage 1 is satisfied, the application should be granted unless there is some good reason to refuse it [41]. The range of matters the tribunal may take into account is necessarily wide but its discretion must be exercised consistently with the intention of Parliament. There is no legal reason why it is only in exceptional circumstances that an application should be refused at stage 2 [55]. (ii) Given the nature of a section 264 decision, risk is plainly relevant at each stage of the process. The increased risk to women which might result from a transfer to a medium secure hospital where there would be female patients was a relevant matter falling within section 1(4)(c). The finding that the risk would result in greater restrictions in the medium secure unit was plainly relevant to the tribunals section 1(4) assessment, and it was also entitled to have regard, under section 1(3)(f), to the consequential risk to Gs mental health [57]. (iii) Although the unavailability of accommodation does not preclude the granting of an application [38; 42], this does not mean the comparative quality of treatment available at other hospitals is irrelevant. The tribunal is not prevented from taking into account a clinical comparison [59 61]. (iv) Whilst it did not mention them, it is clear that the tribunal had regard to Gs wishes and feelings insofar as relevant, in particular his wish to be transferred to a medium secure hospital and his attitude towards different forms of treatment. In relation to section 1(3)(g). Lord Reed rejects the argument that the provision is irrelevant to the discharge of the section 264 function since a patient is not comparable to a person of full capacity. It is undoubtedly relevant, but it was enough that the tribunal dealt with the critical issues sufficiently to enable the parties and the court to understand why the application had been refused. A formulaic rehearsal of every matter in section 1 was not required [64]. It is not readily apparent that the tribunal understood the structure of section 1. On the facts of this (v) case, however, this cannot have affected the substance of its decision. It appears most likely that it did not reach a clear conclusion on section 1(4). In those circumstances, it was entitled to exercise its discretion having regard to all relevant matters and in accordance with the objects of the Act. Its conclusion that it would be of maximum benefit for G to remain in the State Hospital was reasonable [65 67]. In a short concurring judgment, Lady Hale agrees with a degree of reluctance that the appeal should be dismissed. She shares Lord Reeds view [43] that it would be unreasonable to make a section 264 order where there was no conceivable possibility of an appropriate bed being found elsewhere, but stresses that such a conclusion is one that a tribunal should be slow to reach. One must beware the Catch 22 where the patient does not need a high level of security but the facilities offered are not suitable to the level of security he does need by reason of a lack of appropriate work done with him in the state hospital. In this case she agrees with Lord Reed that the tribunal was entitled to reach the factual conclusion that the patients therapeutic needs would be better met in the state hospital.
This issue in this appeal is whether the Appellant, as local planning authority, properly understood the meaning of the word openness in the national planning policies applying to mineral working in the Green Belt, as expressed in the National Planning Policy Framework (NPPF). Paragraph 90 of the NPPF (in its original 2012 form) provides: Certain other forms of development are not inappropriate in the Green Belt provided that they preserve the openness of the Green Belt and do not conflict with the purposes of including land in the Green Belt. These are: mineral extraction; The application in issue in this case was for the extension of the operational face of Jackdaw Crag Quarry. This is a magnesian limestone quarry 1.5 kilometres to the south west of Tadcaster, North Yorkshire, owned and operated by the Third Respondent, Darrington Quarries. The Appellants Planning and Regulatory Functions Committee on 9 February 2016 accepted their officers recommendation that planning permission be granted. The officers report detailed a wide range of planning considerations. Under the heading Landscape impact the report summarised the views of the Appellants Principal Landscape Architect, who did not object in principle to the proposal, but drew attention to the potential landscape impacts and the consequent need to ensure that mitigation measures were maximised. In a section headed Impacts of the Green Belt the report referred to the consultation response from the First Respondent, including comments addressing the openness of the Green Belt. The First and Second Respondent brought judicial review proceedings of the decision to grant planning permission. They said, among other things, that the officers report erred in its analysis of openness in paragraph 90 of the NPPF in that it did not consider visual impact. The High Court (Hickinbottom J) found no error as the officers report was not required to take into account visual impact from the development. Disagreeing, the Court of Appeal (Lindblom and Lewison LJJ) held that the officers report was defective at least in failing to make clear that, under para 90 of the NPPF, visual impact was potentially relevant; and, further, that on the officers findings visual impact was quite obviously relevant and therefore a necessary part of the assessment. The planning permission was quashed. The Supreme Court unanimously allows the Appellant and Third Respondents appeal. Lord Carnwath gives the sole judgment, with which the other Justices agree. On a proper reading of the NPPF in its proper historic context visual quality of landscape is not in itself an essential part of openness for which the Green Belt is protected [5]. While the text of paragraph 90 of the NPPF has changed from that in Planning Policy Guidance 2: Green Belts (published 1995, amended in 2001), there has been no significant change of approach [12]. The concept of openness in paragraph 90 of the NPPF is a broad policy concept which is the counterpart of urban sprawl and is linked to the purposes to be served by the Green Belt. Openness is not necessarily a statement about the visual qualities of the land, nor does it imply freedom from all forms of development [22]. The question is, therefore, whether visual impact was a consideration which, as a matter of law or policy, was necessary to be taken into account, or was so obviously material as to require such direct consideration [32]. Whether the proposed mineral extraction would preserve the openness of the Green Belt or otherwise conflict with the purposes of including land within the Green Belt was specifically identified and addressed in the officers report. Paragraph 90 of the NPPF does not expressly or impliedly mandate the consideration of visual impact as part of such an analysis [39]. The officers report does not suggest that visual impact can never be relevant to openness [40]. The relevant paragraphs of the officers report addressing openness must be read together. Some visual effects were given weight in the consideration of the restoration of the site. The relatively limited visual impact fell far short of being so obviously material that failure to address it expressly was an error of law, as did the fact that the proposed development was an extension to the quarry. These were matters of planning judgement and not law [41].
This appeal concerns a particular application of settled principles which delineate the circumstances in which an appellate court may interfere with findings of fact made by a judge sitting at first instance. The Appellant (DM) and first Respondent (RM) are father and son respectively. DM and his wife left Scotland many years ago to live in the United States. RM and his partner (LG), who is the second Respondent, live in Scotland with their son. The Appellant and his wife decided to return to Scotland in 2005 when the latter became terminally ill. DM asked RM, who is a property developer, to find a suitable property for him and his wife to live in upon their return. When RM did so, DM transferred the funds required to purchase that property (the St Helens Gardens property) to RMs bank account. RM subsequently arranged the purchase. However, unknown to DM, he arranged for the title to the property to be taken in his own name. DM moved into the property with his wife on 1 January 2006, but she died six days later. In February 2007, DM gave RM a cheque in his favour for 285,000, the reason for which is subject to the dispute which gives rise to this appeal. RM and LG used 200,000 from that amount, together with 90,000 raised by way of a mortgage, to buy a newly built house in Stewarton (the Lochrig Court property), taking title in their own names. The remainder of the 285,000 was spent on cars, the repayment of debts, improvement of their existing home prior to sale and finishings for the Lochrig Court property. DM raised the present proceedings later in 2007 seeking, among other remedies, the conveyance of the two properties to him. He maintained that, first, RM had acted without his authority in taking title to the St Helens Gardens property in his own name and, second, that RM and LG had acted without his authority in taking title to the Lochrig Court property in their names. In relation to the former, RM maintained that DM had instructed that title to the St Helens Gardens property was to be taken in his (RMs) name. In relation to the latter, RM and LG maintained that the payment of 285,000 had been a gift. The case proceeded to proof before the Lord Ordinary, Lord Brodie, in the Outer House of the Court of Session, who found in favour of DM and ordered that the properties be transferred to him. It was central to the Lord Ordinarys decision that he preferred the evidence of DM over that of RM on the central issues of fact, finding that DM had not made substantial gifts to RM. RM and LG appealed to the Inner House of the Court of Session in relation to the Lochrig Court property only. Noting that the Lord Ordinary had stated that he did not find any of the other evidence materially to undermine DMs account, the Inner House identified a number of aspects of the evidence which they asserted did exactly that. They therefore concluded that they were entitled to overturn the Lord Ordinarys decision on the basis that he had gone plainly wrong and to substitute their own decision on the facts from the printed record of proceedings. The Supreme Court unanimously allows DMs appeal. Lord Reed gives the judgment of the court. The Inner House considered that eight separate aspects of the evidence had undermined DMs evidence [24]. However, of these, only four were of substance [25 26], and each of those had been expressly taken into account by the Lord Ordinary in reaching his conclusion on DMs credibility [27]. In a case such as the present one, in which the trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties testimony is of primary importance. In that regard, the Lord Ordinary found that DM was a credible witness on the central issue of whether the payment of 285,000 was a gift, notwithstanding a number of aspects of the evidence which could be regarded as detracting from his credibility [28, 30]. The question whether DMs evidence was to be regarded as credible and reliable, having regard to the other evidence in the case, was pre eminently a matter for the Lord Ordinary [28]. Further, the Inner House did not consider the weight of the evidence adverse to DMs credibility in the context of the evidence as a whole. They did not appear to have given any weight to the extent to which the Lord Ordinarys conclusion was affected by the manner in which the witnesses gave evidence, which the Inner House could not have assessed for themselves from the printed record. They did not consider the Lord Ordinarys assessment of the character of the witnesses or the unchallenged finding that RM had acted in breach of trust in relation to the St Helens Gardens property. They also did not scrutinise the evidence of RM or LG in the same way they did that of DM [29]. It was not correct for the Inner House to rely on the case of Hamilton v Allied Domecq plc [2007] UKHL 33, in which a critical finding of fact had been made which was unsupported by the evidence. That was not the position in the present case [31]. Finally, in relation to the issues raised on the appeal, the Lord Ordinarys assessment that the evidence of the Respondents son added little or nothing on the basis that he largely recounted what he had been told by his parents, was borne out by the relevant passages of the evidence. The Lord Ordinary did not therefore err in failing to give greater weight to that evidence [32]. In the whole circumstances, therefore, the Inner House had no proper basis for concluding that the Lord Ordinary had gone plainly wrong, let alone that on a re consideration of the whole evidence the opposite conclusion should be reached [33]. While the case concerned the application of long settled legal principles, the Court does not criticise the bringing of the appeal. The failure of an appellate court to apply those principles correctly may raise a point of law of general public importance [35].
The European Bank Recovery and Resolution Directive 2014/59/EU (EBRRD) amended Directive 2001/24/EC on the Reorganisation and Winding up of Credit Institutions (the Reorganisation Directive), so as to require member states to confer on their domestic Resolution Authorities certain tools for reconstructing failing credit institutions. One of the tools was the bridge institution tool, which required designated national Resolution Authorities to have the power to transfer to a bridge institution any assets, rights or liabilities of a failing credit institution. The Appellants are the assignees of the rights of Oak Finance Luxembourg SA (Oak). In June 2014, Oak entered into a facility agreement with a Portuguese bank, Banco Esprito Santo SA (BES), under which it agreed to lend BES approximately $835m (the Oak liability). The facility agreement was governed by English law and provided for the English courts to have exclusive jurisdiction over any dispute. The entire loan was advanced on 3 July 2014. BES made one scheduled payment of approximately $53m, but it shortly became clear that BES was in serious financial difficulties. The Central Bank of Portugal, which is the designated Resolution Authority for Portugal for the purposes of the EBRRD, decided to invoke the bridge institution tool to protect depositors funds in BES. By a decision dated 3 August 2014 (the August decision), it incorporated the Respondent (Novo Banco) to serve as the bridge institution and transferred specified assets and liabilities of BES to it, purportedly including the Oak liability. Under article 145H(2) of the Portuguese Banking Law, however, no liability could be transferred to a bridge institution if it was owed to an entity holding more than 2% of the original credit institutions share capital. By a decision dated 22 December 2014 (the December decision), the Central Bank determined that the Oak liability had never been transferred to Novo Banco, as it fell within the article 145H(2) prohibition. There are ongoing administrative law proceedings in Portugal in which the Appellants challenge the December decision, which have not yet been resolved. The Appellants commenced an action in the English courts for sums due in respect of the Oak loan, on the basis that the Oak liability had been transferred to Novo Banco by the August decision, and that Novo Banco was bound by the jurisdiction clause in the facility agreement. Novo Banco countered that the December decision conclusively determined that the liability had not been transferred to it. At first instance, relying on article 66 EBRRD, the judge found that the Oak liability had been transferred to Novo Banco by the August decision and that Novo Banco became party to the jurisdiction clause. The Court of Appeal allowed Novo Bancos appeal. Relying instead on article 3 of the Reorganisation Directive, it held that an English court was bound to recognise the effect of the December decision as a matter of Portuguese law, which was to determine conclusively that the Oak liability had not been transferred. The Supreme Court unanimously dismisses the appeal. Lord Sumption gives the lead judgment, with which the rest of the Court agrees. An English court is required by article 3 of the Recognition Directive to recognise the December decision, and must therefore treat the Oak liability as never having been transferred to Novo Banco. Novo Banco was therefore never party to the jurisdiction clause in the facility agreement. The provision which is primarily relevant to this appeal is article 3 of the Reorganisation Directive, which determines the applicable law to be applied to a reorganisation measure in England. Article 66 of the EBRRD is a more specific provision which concerns enforcement [22]. Lord Sumption makes two points about the Reorganisation Directive, particularly article 3. First, its purpose is to ensure that all assets and liabilities of the institution, regardless of the country in which they are situated, are dealt with in a single process in the home member state. This can be achieved only by taking the process as a whole and applying the legal effects attaching to it under the law of the home state in every other member state. It is not consistent with the language or the purpose of article 3 that an administrative act such as the December decision, which affects the operation of a reorganisation measure under the law of the home state, should have legal consequences as regards a credit institutions debts which are recognised in the home state but not in other member states. [24 26]. Second, article 3 does not only give effect to reorganisation measures throughout the Union, but requires them to be applied in accordance with the laws, regulations and procedures applicable in the home member state, unless otherwise provided in this Directive, and to be fully effective in accordance with the legislation of that member state. In this legal scheme, it cannot make sense for the courts of another member state to give effect to a reorganisation measure but not to other provisions of the law of the home state affecting its operation [27]. For these reasons, Lord Sumption rejects the proposition that the effect of the August decision can be recognised without regard to the December decision. It does not matter what the correct analysis of the December decision is, provided that it is accepted (as it is) that unless and until it is set aside, it is conclusive as a matter of Portuguese law that the Oak liability had never been transferred. It follows from the agreed propositions of Portuguese law and from the requirements of article 3(2) of the Reorganisation Directive that an English court must treat the Oak liability as never having been transferred to Novo Banco. Novo Banco was therefore never party to the jurisdiction clause [28]. Lord Sumption also rejects the Appellants alternative case that, even if the December decision is otherwise entitled to recognition in England, it should be disregarded on the ground that it was a provisional decision pending the final decision of a Portuguese administrative court. As a matter of Portuguese law, the December decision is binding in Portuguese law unless and until it is set aside by a Portuguese court [31 33]. Further, no other conclusion would be consistent with the Directives, particularly article 3 of the Reorganisation Directive, which provides that the implementation of a reorganisation measure such as the August decision is a matter for the administrative or judicial authorities of the home state alone, and article 85 of the EBRRD, which provides that an appeal is not to entail any automatic suspension of the challenged decision [34]. There is no basis for a reference to the CJEU, as the relevant propositions of EU law are beyond serious argument [35].
This appeal concerns the effectiveness of a scheme (Project C) which was designed to minimise the liability to VAT of a group of companies (Oriel) involved in providing motor breakdown insurance (MBI). The supply of insurance is exempt from VAT. Insurers therefore neither charge VAT on premiums nor account to Her Majestys Revenue and Customs (the Commissioners) for VAT in respect of their insurance business. They also bear the VAT element of the costs incurred in the course of their business which are chargeable to VAT, as they may not deduct that VAT element from any VAT that they have received. Accordingly when an MBI insurer indemnifies an insured against the cost of repairs, the insurer may not deduct the VAT element of the repairing garages invoice. The VAT paid to garages by MBI insurers represents a substantial business cost. They perceive themselves to be at a disadvantage relative to competitors whose business is not exempt from VAT, and who can therefore offer car repair services and deduct the VAT element of the costs incurred as input tax. Project C sought to remedy that disadvantage by enabling one or other member of Oriel to recover the VAT element of the repair costs. NIG is a UK insurer which provides a UK front for an offshore MBI business carried on by Oriel. NIGs policies cover the cost of repairs and replacement parts following breakdowns of second hand cars. The policies are marketed and sold by another UK company (Warranty), which is a member of the Oriel group. Prior to the implementation of Project C, NIG reinsured the risk under the policies with a Gibraltar based member of Oriel (Practical). Warranty was appointed by NIG to handle claims made under the policies. In the event of a breakdown, the insured contacted Warranty and was directed to a garage approved by Warranty, a garage of the insureds choice or the dealer garage. Warranty paid for the repairs carried out by the garages. The VAT on such payments was irrecoverable. Project C attempted to solve that problem. It consisted of two strands. The first was based on legislation interpreted by those responsible for Project C as enabling UK insurance claims handlers to recover input tax incurred for the purpose of supplying their services to a non EU recipient. WHA Ltd (WHA), a UK member of the Oriel group, therefore began to supply claims handling services to Viscount Reinsurance Company Ltd (Viscount), a member of the group based in Gibraltar, and therefore outside the EU, with which 85% of the risk under NIGs MBI policies was reinsured. The intention was that WHA would be regarded as the recipient of a supply of repair services from the garages on which VAT would be charged; would not have to charge output tax on its onwards supply of claims handling services to Viscount as the latter was outside the EU; and as a result would be entitled to recover input tax from the Commissioners under the legislation. The second strand of Project C was a fall back line of defence designed to deal with any assertion by the Commissioners that the second stage of the first strand, namely that VAT was not chargeable on WHAs supply of claims handling services to Viscount, was incorrect. That conclusion would render the first strand ineffective. On the basis of legislation which was interpreted as enabling Viscount to recover the VAT which it paid to WHA so long as Viscount itself made supplies to a non EU recipient, another Gibraltar based member of the Oriel group (Crystal) was installed to reinsure 100% of the risk under NIGs MBI policies, and in turn to retrocede 85% of that risk to Viscount. Notably, the second strand also proceeded on the basis that WHA would be regarded as the recipient of a supply of repair services from the garages. The Commissioners refused to repay tax to WHA and Viscount for several reasons that pertained to either the first, second or both strands of Project C. In particular, they argued that the garages did not in fact make a taxable supply of services to WHA, a conclusion that would vitiate both strands. They also argued that even if they were wrong in that and other arguments, Project C was so artificial that it fell foul of the EU law doctrine of the abuse of rights. The Court of Appeal held that the garages did make a taxable supply to WHA, that the first strand of Project C was ineffective for other reasons, but that under the second strand Viscount was entitled to recover the VAT it had paid to WHA, subject to the question of abuse of rights. It subsequently held that the scheme was a breach of the abuse of rights doctrine. WHA and Viscount appeal to the Supreme Court, arguing that WHA does receive a taxable supply from the garages and that Project C is not a breach of the abuse of rights doctrine. The Supreme Court unanimously dismisses the appeal. Lord Reed gives the judgment of the Court. For the reasons summarised below, the Supreme Court holds that there is no supply of repair services by the garages to WHA. It is therefore unnecessary for the Court to address the other issues raised, as both strands of Project C were predicated on the conclusion that there was such a supply [18]. Decisions about the application of the VAT system are highly fact sensitive. When determining the relevant supply in which a taxable person engages, regard must be had to all the circumstances in which a transaction takes place. In cases involving a construct of contractual relationships, the matter must be assessed as a whole to determine the economic reality. The transaction between the garages and WHA must be understood in the context of the wider arrangements between the insured, NIG, Crystal, Viscount, WHA and the garage [26]. Having regard, therefore, to the agreements between NIG and the insured, NIG and Crystal, Crystal and Viscount, and Viscount and WHA, the terms of each contract envisage the role of WHA as encompassing the negotiation, investigation, adjustment, settlement and payment of claims. There is no indication that WHAs role included undertaking responsibility for the carrying out of repairs [33]. Further, the nature of the relationship between the garages and WHA does not suggest that the former provides a service to the latter [35 38]. NIG undertakes to the insured to meet the cost of repairs to a vehicle falling within the scope of the policy. It does not undertake responsibility for the repairs themselves [27, 56]. The economic reality is that the payments made by WHA to the garages merely discharge the obligation which NIG undertook to the insured to pay for the repair of a vehicle up to the value permitted by the policy in the event of a breakdown. The interposition of Viscount and Crystal in the chain of contracts linking WHA to NIG does not alter the position that WHA simply acts as the paymaster of the costs falling within the cover provided by the policies [56 57]. That conclusion is supported by further considerations. First, the deduction of input tax is meant to relieve the trader in question of the VAT payable or paid in the course of his economic activities. However, WHAs own profit and loss is unaffected by VAT as it pays the garages out of a float provided by Viscount. Secondly, the consequence of input tax deduction should be that VAT is only borne on the supply to the final consumer. The effect of dismissing this appeal is that VAT is borne on the supply of services by the garage to the final consumer, namely the insured [58].
The appellants allege that they were abducted and mistreated by agents of foreign governments and then rendered to the Libyan authorities, by whom they were imprisoned and tortured. They allege that this occurred with the involvement of Sir Mark Allen, who is said to have been a senior officer of the British Secret Intelligence Service. After an investigation by the Metropolitan Police, the Director of Public Prosecutions (DPP) declined to bring any prosecutions. The DPP based her decision on a senior prosecutors decision and on legal advice that there was insufficient evidence to prosecute for any offence subject to the criminal jurisdiction of the United Kingdom. After an internal review by the Crown Prosecution Service (CPS) at the appellants request, another senior prosecutor reached the same decision. The CPS declined to disclose the potential evidence to the appellants, citing its security marking. In separate proceedings, the appellants have sued the British government for damages. On 20 October 2016, the appellants issued the present proceedings in the High Court, seeking judicial review of the failure to prosecute Sir Mark Allen, who is alleged to have been the primary suspect in the investigation. They argue, amongst other things, that the DPPs decision was inconsistent with the evidence. The DPP argues that her decision was based on a review of documents which cannot be released to the appellants. The Foreign Secretary applied to the court under section 6 of the Justice and Security Act 2013 for a declaration that the judicial review proceedings were proceedings in which a closed material application may be made to the court. A section 6 declaration is a prerequisite for an application to the Court for the use of closed material procedure under Part 82 of the Civil Procedure Rules, whereby the court may sit in private and without a party and his or her legal representative in order to prevent disclosures damaging to the interests of national security. A section 6 application may be made only to a court seized of relevant civil proceedings, which are defined as not including proceedings in a criminal cause or matter. The appellants resisted the section 6 application on the basis that these judicial review proceedings were in a criminal cause or matter. The Divisional Court rejected that argument but certified the issue as one of public importance, suitable for consideration by the Supreme Court. The proceedings were settled after argument before the Supreme Court, but the Court gives judgment in view of the importance of the legal issue. The Supreme Court allows the appeal by a majority of three to two. Lord Sumption gives the lead judgment, with which Lady Hale agrees. Lord Mance gives a concurring judgment. Lord Lloyd Jones gives a dissenting judgment, with which Lord Wilson agrees. The adoption of closed material procedure requires specific statutory authority. The Justice and Security Act 2013 gave the High Court a general statutory power, in certain circumstances, to receive closed material which is disclosed only to the court and to a special advocate. As explained in the 2011 Justice and Security Green Paper, the Act was a response to a growing number of civil claims for damages against which the government was unable to defend at trial except through the unacceptably damaging disclosure of secret material. Those claims instead had to be settled [6 7]. The ordinary and natural meaning of proceedings in a criminal cause or matter includes proceedings by way of judicial review of a decision made in a criminal cause, and nothing in the context or purpose of the legislation suggests a different meaning. In English criminal procedure many decisions made in ongoing or prospective criminal proceedings are subject to judicial review in the High Court. Judicial review therefore cannot be regarded as an inherently civil proceeding. It is an integral part of the criminal justice system [15 16]. Judicial interpretations of the phrase criminal cause or matter in the Judicature Acts primarily reflected the natural meaning of the words, rather than any special feature of the Acts. A cause is a proceeding, civil or criminal, actual or prospective, before a court. A matter is something wider, namely a particular legal subject matter, although arising in a different proceeding. The appellants application is an attempt to require the DPP to prosecute Sir Mark Allen. That is just as much a criminal matter as the original decision not to bring a prosecution. Parliament is unlikely to have intended to distinguish between different procedures having the same criminal subject matter and being part of the same criminal process; but the draftsman could have done so easily, for example by omitting the reference to a matter [17 20]. The Green Paper indicates that the distinction between criminal and civil proceedings in section 6 reflected the greater degree of control exercisable by the government in criminal cases, in which the prosecution can: (i) chose the material on which it relies, (ii) seek to limit the disclosure of unused material on the grounds of public interest immunity; and (iii) withdraw the prosecution. That rationale does not require closed material procedure to be available in an ancillary judicial review of a decision made as an integral part of the criminal justice process, when it would not be available for an actual criminal trial [22 24]. Lord Mance agrees that the appeal should be allowed, essentially for the same reasons as Lord Sumption [25 37]. Lord Lloyd Jones, with whom Lord Wilson agrees, would have dismissed the appeal. He concludes that the natural meaning and use of the word cause is appropriate to cover criminal proceedings which will result in a criminal conviction or acquittal, and that the word matter may extend beyond that to ancillary applications in such criminal proceedings (such as disclosure applications and extradition proceedings). They do not, however, naturally include this judicial review, which is a public law challenge extraneous to the criminal process. It is permissible to refer to the Green Paper in order to discern the purpose of the exclusion of proceedings in a criminal cause or matter from closed material procedure. The core concern behind the exclusion is to ensure that closed material procedure is unavailable where criminal guilt is being decided. These proceedings do not fall within the purpose of the exclusion [52 57].
The appeal concerns the dismissal of Ms Jhuti, the appellant, from her employment by Royal Mail Group Ltd (the company). The key question of law that it raises is as follows: in a claim for unfair dismissal under Part X of the Employment Rights Act 1996 (the Act), can the reason for the dismissal be other than that given to the employee by the employers appointed decision maker? The facts found by the employment tribunal (the tribunal) in this case included the following. During her trial period, Ms Jhuti made protected disclosures under section 43A of the Act, commonly described as whistleblowing. Her line managers response was to pretend that her performance was inadequate, including by bullying her and by creating, in emails and otherwise, a false picture of her performance. The company appointed another employee to decide whether Ms Jhuti should be dismissed. Ms Jhuti, who had in the meantime been signed off work for work related stress, anxiety and depression, was unable to present her case to the decision maker in meetings or otherwise. Having no reason to doubt the truthfulness of the material indicative of Ms Jhutis inadequate performance, the decision maker decided that she should be dismissed for that reason. Ms Jhuti brought two complaints in the tribunal. The first complaint (on which nothing in the present appeal turns directly) was that, contrary to section 47B(1) of the Act, she had been subjected to detriments by acts of the company done on the ground of her whistleblowing. The second complaint was that her dismissal was unfair under section 103A, which provides that a dismissal is unfair if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure. The tribunal dismissed this second complaint. It found that, as the decision maker had dismissed her on the ground of a genuine belief that her performance had been inadequate, the reason for dismissal was her performance and so section 103A did not apply. The Employment Appeal Tribunal (the EAT) reversed this decision, holding that the reason for dismissal was the making of the protected disclosures. The Court of Appeal allowed the companys appeal against the EATs decision and reinstated the tribunals dismissal of the complaint of unfair dismissal. It held that a tribunal required to determine the reason for dismissal under section 103A was obliged to consider only the mental processes of the employers authorised decision maker. Ms Jhuti appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. It sets aside the part of the Court of Appeals order allowing the companys appeal against the EATs order and reinstates the latter order. Lord Wilson gives the only judgment, with which the other Justices agree. The question is whether the tribunal correctly identified the reason (or, if more than one, the principal reason) for the dismissal under section 103A, which relates specifically to whistleblowing. But these words also appear elsewhere in Part X, including in section 98, the general provision for unfair dismissal. So the courts answer must relate equally to those other sections [39]. While the question seems to be of wide importance, however, the facts of this case are extreme: instances of decisions to dismiss taken in good faith, not just for a wrong reason but for a reason which the employees line manager has dishonestly constructed, will not be common [40 41]. When applying a rule to a company which requires attributing to it a state of mind, it is necessary to consider the language of the rule (if it is a statute), as well as its content and policy [42 43]. By section 103A, Parliament clearly intended to provide that, where the real reason for dismissal was whistleblowing, the automatic consequence should be a finding of unfair dismissal [44 45]. The Court of Appeal in this case determined that, when an employees line manager hides the real reason behind a fictitious reason, the latter is to be taken as the reason for dismissal if adopted in good faith by the decision maker [46]. It considered itself bound by its earlier decision in Orr v Milton Keynes Council [2011] EWCA Civ 62, [2011] ICR 704 (Orr), which held that it was the knowledge only of the decision maker which fell to be attributed to the employer for the purposes of section 98 [47 49]. Yet, for various reasons, Orr was not a satisfactory vehicle for the articulation of principle; nor were its facts comparable to those in the present case [50 53]. The company, in opposing the attribution to it of the knowledge of Ms Jhutis line manager, argues that section 47B of the Act already gives protection to whistleblowers, such that there is no reason to construe section 103A as capturing reasons for dismissal other than the decision makers [54]. Section 47B protects workers from being subjected to detriment by acts of the employer (subsection (1)), or of another worker (subsections (1A) to (1E)). In the latter case the employer is liable for the other workers acts [55]. But the tribunal attributed to the company the acts of Ms Jhutis line manager which it found to have caused detriment to her, and held that subsection (1), rather than subsections (1A) to (1E), applied. This attribution to the company (which it does not challenge) of acts which it could not have authorised had it known of the circumstances surrounding them provides no support for its approach to attribution under section 103A [56]. The wider dimension of the companys argument based on section 47B is that the right it gives to workers in Ms Jhutis position affords to them all the relief they could reasonably expect [57]. Yet Parliament has, by section 103A, provided that a dismissal should automatically be unfair where an employees whistleblowing is the reason for it. It has also, by section 47B(2), withdrawn the protection of that section from whistleblowers subjected to a detriment which amounts to dismissal [58]. It is therefore obvious that whistleblowers are not confined to remedies under section 47B [59]. In searching for the reason for a dismissal, courts need generally look only at the reason given by the decision maker. But where the real reason is hidden from the decision maker behind an invented reason, the court must penetrate through the invention [60 61]. So the answer to the appeals key question is, yes, if a person in the hierarchy of responsibility above the employee determines that she should be dismissed for one reason but hides it behind an invented reason which the decision maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason [62].
The principal issue on this appeal concerns the meaning of the word makes in section 60(1)(a) of the Patents Act 1977 (the 1977 Act), which provides that a person infringes a patent for a particular product if he makes the product without the consent of the patentee. This issue arises in respect of European Patent (UK) 0 734 967 (the Patent), of which Protechna S.A. (Protechna) is the proprietor. Claim 1 of the Patent (the Claim) extends to certain aspects of a complete intermediate bulk container (IBC). An IBC is a large container used by suppliers of liquids (fillers), for the transport of a wide range of liquids to a so called end user. IBCs of a two part construction consist of a metal cage into which a large plastic container (or bottle) is fitted. Often, the bottle cannot be reused, because it contains residues of a toxic liquid or because it has been physically damaged. The inventiveness of the Patent lies in the idea of flexible weld joints to the cage, to increase its strength and durability, and in the idea of introducing a dimple on either side of the weld and a central raised portion. The description of the Patent acknowledges that the bottle is exchangeable (i.e. replaceable). The cage has a life expectancy on average five or six times longer than a bottle, which is why so called reconditioners engage in re bottling or cross bottling used IBCs. In either case, the old bottle is removed, any damage to the cage is repaired, and a new bottle is fitted within the cage. Re bottling involves replacing the bottle with a fresh bottle from the original manufacturer, whereas cross bottling involves replacing the bottle with a bottle from a different source. After re bottling or cross bottling an IBC, the reconditioner offers the reconditioned product to fillers on the market, in competition with the products of original manufacturers, and of other reconditioners. Schtz (U.K.) Limited (Schtz) is the exclusive licensee of Protechna, and the leading manufacturer of rigid composite IBCs, in the United Kingdom. Werit UK Limited (Werit) sells bottles (Werit bottles) for IBCs to a reconditioner, Delta Containers Limited (Delta). Delta acquires discarded IBCs originally put on the market by Schtz (Schtz IBCs), replaces the original bottles (Schtz bottles) with Werit bottles, and then offers these cross bottled IBCs on the market. These cross bottled IBCs are therefore in competition with the original Schtz IBCs. Schtz objected to Deltas cross bottling activities, and issued proceedings against Werit, seeking relief on the ground that Werit infringed the Patent. It is common ground that, if Delta thereby infringes the Patent, Werit does so. Two issues arising from those proceedings are relevant to the present appeal. The first issue is whether Delta infringed the Patent by mak[ing] the article claimed by the Claim, contrary to section 60(1)(a) of the 1977 Act. The second issue, which arises only if it is found that Delta infringes the Patent, concerns costs sanctions in such proceedings under section 68 of the 1977 Act (the section 68 issue). At first instance, Floyd J held that Deltas cross bottling activities do not amount to making the patented product, on the ground that the inventive concept of the Claim is wholly embodied in the Schtz cage. The Court of Appeal considered that it was inappropriate to determine the issue by reference to the inventive concept, and held that Deltas cross bottling activities do amount to making the patented product, on the basis that the Schtz IBC ceases to exist when the Schtz bottle is removed, and all that remains at that stage is merely an important component from which a new IBC could be made. The Supreme Court unanimously allows Werits appeal and holds that Delta did not make the patented article contrary to section 60(1)(a) of the 1977 Act. Lord Neuberger gives the judgment of the Court. This decision renders Werits appeal on the section 68 issue academic, but because the issues that appeal raises were fully argued, Lord Neuberger provides some guidance on how the costs sanctions under section 68 of the 1977 Act work [80] [107]. The central issue is whether Delta makes a patented article when it removes a damaged Schtz bottle from a Schtz cage, and replaces it with a Werit bottle. The word makes does not have a precise meaning. It must be interpreted contextually, by reference to the facts of the particular case, and in a practical way, bearing in mind that the precise scope of a claim may be a matter almost of happenstance. It must also be given a meaning which, as a matter of ordinary language, it can reasonably bear. There is a need for clarity and certainty for patentees and others, and for those advising them. It should also be borne in mind that the word makes applies to patents for all sorts of product. Moreover, there is a need to protect the patentees monopoly while not stifling reasonable competition [26] [29]. Therefore, it will inevitably be a matter of fact and degree in many cases whether an activity involves making an article [26],[57],[58],[72],[78]. Observations about the meaning of make in a different legal or factual context from that under consideration should be approached with caution because of the somewhat slippery nature of the meaning of the word, and the very important role which context plays in determining whether a particular activity involves making an article [53]. The mere fact that an activity involves replacing a constituent part of an article does not mean that the activity involves the making of a new article, rather than constituting a repair of the original article. One must, however, avoid simply contrasting making and repairing, not least because these concepts may well overlap. That said, it may sometimes be useful to consider whether the alleged infringer is repairing rather than making the article, because repair of an item frequently involves replacement of one or some of its constituents [48] [50]. It is both legitimate and helpful to consider the question whether the bottle is such a subsidiary part of the patented article that its replacement, when required, does not involve making a new article [61]. While undoubtedly an essential and physically large part of the patented article, four factors indicate that the bottle can fairly be said to be a relatively subsidiary part of the IBC, when that article is viewed as a whole [64]. (i) The bottle has a significantly lower life expectancy than the cage [65] [66]. (ii) The bottle does not include any aspect of the inventive concept of the Patent [67] [69]. (iii) The bottle is a free standing item of property [70]. (iv) The damaged free standing bottle is simply replaced within the metal cage, which contains the inventive concept, and the metal cage is repaired if necessary [71]. The question whether the end user is paid for a used IBC could be of relevance [74], although there was no evidence which can fairly enable assessment of this factor [75], and it is very unlikely that any such evidence would have affected the outcome [76]. This case represents a classic example of identifying the various factors which apply on the particular facts, and, after weighing them all up, reaching a conclusion on infringement. Given that (a) the bottle (i) is a freestanding, replaceable component of the patented article, (ii) has no connection with the claimed inventive concept, (iii) has a much shorter life expectancy than the other, inventive, component, (iv) cannot be described as the main component of the article, and (b) apart from replacing it, Delta does no additional work to the article beyond routine repairs, Delta does not make the patented article [78].
In 2004, the Respondent, Mrs Rae, sold land to Ransom Developments Ltd (RDL). Her disposition contained the words and I grant warrandice. In Scots law, warrandice is a contractual warranty of title given impliedly if not expressly by a seller to a purchaser. The seller will only be obliged to indemnify the purchaser in respect of losses suffered as a result of a defect in title if the purchaser is evicted from the property, although actual removal is not required. In this case, the warrandice was absolute, meaning that a warranty was given against all defects in title at the time the disposition was delivered. When RDL attempted to complete its title to the land by registering it in the Land Register of Scotland, the Keeper of the Registers informed RDLs solicitors that the Respondent had never had title to part of the land which she had sold to RDL. That part (the disputed part) was truly owned by James Craig Ltd (JCL). The title to the disputed part was in fact held by a Mr Lynch, the disputed part having been transferred by JCL to him in error in 1991. In 2005, JCL threatened to evict RDL from the land. RDL paid 70,000 to JCL to avoid eviction. JCL procured the grant of a disposition of the disputed part by Mr Lynch to RDL in 2006. RDLs title to the land (including the disputed part) was then registered. In 2007 RDL went into liquidation and assigned its rights to the Appellant, Mr Morris. These were the basic facts which the Appellant offered to prove in his action against the Respondent for breach of warrandice. There has not yet been an evidential hearing. At a preliminary stage, the Respondent attacked the relevancy of the Appellants case, arguing that even if the Appellant proved everything that he offered to prove, he could not succeed in his claim. Following a debate, the Temporary Judge (Rita Rae QC) rejected this argument and allowed the case to proceed. The Respondent successfully reclaimed (appealed) to an Extra Division of the Inner House of the Court of Session, who by a majority dismissed the action as irrelevant. [48 and 3336] In the course of his appeal to the Supreme Court, the Appellant offered to prove that when JCL made the eviction threat, RDL and JCL both believed that JCL held title to the disputed part, neither being aware that the title had in error passed to Mr Lynch; that if the error had been discovered, JCL would have been immediately able to secure title to the disputed part from Mr Lynch; and that no proceedings or proof of title would have been required to establish JCLs title to the disputed part. All the facts which the Appellant offers to prove are assumed for the purposes of the appeal which is concerned with whether or not the Appellant is entitled to prove his case. [910 and 3738] The issues in the appeal are whether the person who makes the threat of eviction has to have an unquestionable title to the property at the time when the threat is made and, if not, what the purchaser in those circumstances has to show in order to trigger the sellers liability under the warrandice. [12, 24 and 39] The Supreme Court unanimously allows the appeal. The Appellant is entitled to the opportunity to prove his case. The leading judgments are given by Lords Hope and Reed, who agree with each other, and with both of whom Lords Walker, Sumption, and Carnwath agree. It is not always essential that the threat of eviction should be made by the person who has a title to the property at the time when the threat is made. This is consistent with principle and the practical purpose and rationale of the law of warrandice, which, in order to avoid pointless delay, expense and litigation, permits a purchaser who accedes to a threat, without any judicial determination, to claim against the seller for breach of warrandice. It would be wrong if the law were to maintain that the purchaser can rely on the sellers warrandice only if he accedes to a threat made by the title holder who may have no interest in evicting the purchaser and not a third party who, although not yet having obtained title, has an interest in evicting the purchaser. [2526, 4952 and 56] There must of course be a competing title which will prevail in a question with the purchaser. If the purchaser buys off the threat, he must be able to show that he transacted with the right person (being the person who has a title and interest to make good the threat) and that the threat was capable of being made effective. It will be good enough for the person making the threat to have an incomplete title if he is undoubtedly in a position to compel the title holder to transfer the title to him or, if the threat is bought off, to the purchaser. [2627] In other words, the purchaser must, objectively, have no realistic alternative but to accede to the threat of eviction. Whether such an alternative exists in particular circumstances must be a matter of judgment on the facts. It is likely that no such alternative will exist in a situation where the person making the threat has an unqualified entitlement, exercisable immediately, to demand a transfer of the title currently vested in another person, and upon such a transfer will undoubtedly be entitled to evict the purchaser. [56] In the present case, the Appellant is offering to prove that JCL would have been immediately able to secure title to the disputed part without the need for proceedings by demanding a transfer of the title vested in Mr Lynch, and that RDL would have had no defence to JCLs threat of eviction. He has therefore set out a relevant case against the Respondent. [32 and 57]
This appeal concerns the application of the anti deprivation rule, a principle of insolvency law that contractual terms purporting to dispose of property on bankruptcy may be invalid as being in fraud or an evasion of the bankruptcy law. This appeal arises out of the insolvency of the Lehman Brothers group, including the Appellant group company, Lehman Brothers Special Financing Inc (LBSF). The commercial context of the dispute is complicated. In October 2002 Lehman Brothers International (Europe) (LBIE) established a synthetic debt repackaged note issuance programme, called the Dante programme. The purpose of the Dante programme was to provide or mimic a form of credit insurance to LBSF against credit events (such as failure to pay, bankruptcy and restructuring) which occurred within the reference portfolio of obligations owed by specified reference entities (the reference portfolio). The commercial purpose of the transaction was achieved through the issue of the so called synthetic credit linked notes by special purpose vehicles (the issuer) set up in tax friendly jurisdictions. The investors in the notes (the noteholders), including the Respondents, were Australian local authorities, pension funds, private investment companies and private individuals. The subscription proceeds paid by the investors for the notes were used by the issuer to purchase secure investments (the collateral) which was then vested in a trust corporation (the trustee). In order to service the interest payments under the notes, the issuer entered into a swap agreement with LBSF under which LBSF received the income (or yield) on the collateral and, in return, paid the issuer the amount of interest due to the noteholders under the terms of the notes. The amount by which the sum payable under the swap agreement by LBSF exceeded the yield on the collateral represented the premium for the, in effect, credit insurance provided by the noteholders. It was further agreed that on maturity of the notes (or on early redemption or termination), LBSF would pay the issuer an amount equal to the initial principal amount subscribed by the investors less amounts calculated by reference to credit events occurring in the reference portfolio and in return would receive the sum equal to the proceeds of sale of the collateral, thereby giving effect to the insurance aspect of the programme. To ensure LBSFs recovery, the trustee was instructed to apply all proceeds from the collateral, first, in meeting the issuers obligations to LBSF and only then in meeting the issuers obligations to the noteholders. However, LBSF would loose its priority claim to the collateral if it was in default under the swap, triggering a change in priority in favour of the noteholders, the so called flip. The events of default under the swap were numerous and, for present purposes, included filing for Chapter 11 protection by Lehman Brothers Holdings Inc (LBHI) on 15 September 2008 and by LBSF on 3 October 2008. In reliance on the latter event, and following a direction from the noteholders, the trustee caused the issuer to terminate the swap with LBSF. This early termination triggered the payment of unwind costs (the market assessment of the net amount either party to the swap would have received were it to run to maturity) to LBSF. At the same time, LBSFs event of default caused the priority of claims against the collateral to change in favour of the noteholders. Given that the issuers obligations to the noteholders and to LBSF were limited to the value of the collateral and that the total claims by the noteholders and LBSF exceeded the value of the collateral, this change in priority effectively deprived LBSF of a chance to recover its unwind costs. As a result, LBSF sought to challenge the validity of the flip on the basis that it breached the anti deprivation principle. LBSFs position was that its rights to the unwind costs and the priority it enjoyed over the collateral formed part of LBSFs insolvent estate of which it was deprived on change of priority following LBSFs bankruptcy. Both the High Court and the Court of Appeal upheld the contractual arrangements. Sir Andrew Morritt C found that the contractual provisions did not offend the anti deprivation rule; or, alternatively, that the rule was not engaged since the flip was triggered by an earlier LBHI Chapter 11 filing and thus LBSFs Chapter 11 filing did not deprive it of any property. In the Court of Appeal, Lord Neuberger MR (with whom Longmore LJ agreed) found the flip provisions valid in reliance, to a large extent, on the fact that the collateral was acquired with money provided by the noteholders. Patten LJ thought that the rule did not apply because a change of priority was always a feature of the security arrangements. The Supreme Court unanimously dismissed LBSFs appeal and upheld the validity of contractual provisions. The lead judgment was given by Lord Collins, with whom Lord Phillips, Lord Hope, Lord Walker, Lady Hale and Lord Clarke agreed. Lord Mance agreed with the majoritys conclusion but for different reasons. Issue 1 the anti deprivation rule Having examined the application of the anti deprivation rule over the last 200 years, Lord Collins held that the rule is too well established to be discarded despite the detailed provisions set out in insolvency legislation, all of which must be taken to have been enacted against the background of the anti deprivation rule: [102]. Lord Collins identified the following limits of the rule. First, a deliberate intention to evade insolvency laws is required, although such intention need not be subjective. Thus a commercially sensible transaction entered into in good faith should not be held to infringe the anti deprivation rule: [78] [79]. Secondly, the anti deprivation rule does not apply if the deprivation takes place for reasons other than bankruptcy: [80]. Thirdly, the distinction between an interest determinable on bankruptcy (the so called flawed asset), which is outside the anti deprivation rule, and an absolute interest defeasible on bankruptcy by a condition subsequent, which falls foul of the rule, is too well established to be dislodged otherwise than by legislation: [87] [88]. However, not every proprietary right expressed to determine or change on bankruptcy is valid, still less a deprivation which has been provided for in the transaction from the outset: [89]. Fourthly, the source of the assets is an important element in determining whether there had been a fraud on the bankruptcy laws: [96]. However, there is no general exception to the anti deprivation rule based simply on the source of the assets: [98]. Lord Collins concluded that commercial sense and absence of intention to evade insolvency laws are highly relevant factors in the application of the anti deprivation rule and that the rule does not apply to bona fide commercial transactions which do not have as their predominant purpose, or one of their main purposes, the deprivation of the property of one of the parties on bankruptcy: [103] [104]. Since the contractual provisions challenged in the present appeal were part of a complex commercial transaction entered into in good faith, the collateral was in substance provided by the noteholders and there was no suggestion that the flip provisions were deliberately intended to evade insolvency law, they did not offend the anti deprivation rule: [108] [113]. Lord Mance agreed that the insolvency legislation has not made redundant the common law anti deprivation principle: [150] [151]. However, he would have dismissed this appeal on the basis that LBSF could not be regarded as having been deprived of any property. On his reading of the documentation, LBSF could not be said to enjoy the contractual priority until the occurrence of certain events. Thus once an event of default under the swap occurred, LBSF was not deprived of the priority but simply prevented from acquiring it in the first place: [168]. Even if LBSF was deprived of its property, the flip simply amounted to a contractual termination of the future reciprocal obligations of the parties, the performance of each of which is the quid pro quo of the other, and thus did not constitute an illegitimate evasion of the bankruptcy laws: [178] [180]. Issue 2 the timing of the deprivation Given the conclusion on issue 1, the question of whether LBHIs earlier bankruptcy (as argued by the Respondents) rather than LBSFs bankruptcy constituted the relevant event of default which triggered the operation of the flip did not arise. Lord Collins would have dismissed the Appellants argument on this point: [118] [120]. Lord Mance, although sceptical of the Respondents argument, preferred not to express a view on this issue: [181] [183].
Mr Alvi is a citizen of Pakistan. In September 2003 he entered the UK as a student, with leave to remain until 31 January 2005. After completing his studies he applied for leave to remain here as a physiotherapy assistant. On 10 February 2005 he was granted leave to remain as a qualifying work permit holder until 10 February 2009 and for the next four years worked here as a physiotherapy assistant. On 9 February 2009 he applied for further leave to remain in the UK. A few months prior to that date the work permit regime had been replaced by a points based system. It came into effect on 27 November 2008. So Mr Alvi applied for leave to remain under that system as a Tier 2 (General Migrant). His application was refused on 18 June 2009 because the Secretary of State was not satisfied that his salary was appropriate for a job at the required level. On 21 September he applied for judicial review of the Secretary of States decision. On 9 February 2010 the refusal of 18 June 2009 was replaced by a revised decision letter, which stated that Mr Alvi did not satisfy the requirements of the Immigration Rules for the relevant category because his job title as an assistant physiotherapist was not of the level of skilled occupations required by the rules. This was because the job title was not a job that was at or above NVQ or SVQ level 3, as stated in the relevant Codes of Practice document. Paragraph 82 of Appendix A to the Immigration Rules states that no points will be awarded for sponsorship unless (a) the job in question appears on the UK Border Agencys list of skilled occupations, and (b) the salary that the migrant will be paid is at or above the appropriate rate for the job as stated in that list of skilled occupations. The list of skilled occupations is found in Occupation Codes of Practice published by the Secretary of State on the website of the UKBA. In some cases, the migrant must also indicate that the sponsor has met the requirements of the resident labour market test, as defined in guidance published by the UKBA. Mr Alvi applied for judicial review of the decision, on the principal ground that the list of skilled occupations was not part of the Immigration Rules, as the document in which that list was set out had not been laid before Parliament under section 3(2) of the Immigration Act 1971. That section requires the Secretary of State to lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter. His claim was dismissed on 25 October 2010 by the High Court, which concluded that it was not the intention of Parliament that the list of skilled occupations, found on the UKBAs website in the Tier 2 Codes of Practice, should be an intrinsic part of the Immigration Rules or subject to specific Parliamentary approval. On 9 June 2011, the Court of Appeal allowed Mr Alvis appeal and quashed the Secretary of States decision of 9 February 2010 to refuse his application for leave to remain. The Secretary of State appeals to this Court. The Supreme Court unanimously dismisses the Secretary of States appeal. The main judgments are given by Lord Hope and Lord Dyson. Lord Walker, Lord Clarke and Lord Wilson give short concurring judgments. The question at the heart of the appeal is whether the reference in paragraph 82(a)(i) of Appendix A to the United Kingdom Border Agencys list of skilled occupations was sufficient to satisfy the requirements of section 3(2) of the 1971 Act. Neither the statement in the preface to the list that the job must be skilled at N/SVQ level 3 or above nor the list itself which showed that Mr Alvis occupation was below that level formed part of the Immigration Rules as laid before Parliament. Were these provisions rules within the meaning of s3(2) of the 1971 Act [21]? First, the Court rejects the submission that it is open to the Secretary of State to control immigration in a way not covered by the Immigration Rules, at common law under the Royal prerogative. The rules are not subordinate legislation. They are to be seen as statements by the Secretary of State as to how she proposes to control immigration. But the scope of her duty is now defined by the statute. The obligation under section 3(2) of the 1971 Act to lay statements of the rules, and any changes in the rules, cannot be modified or qualified in any way by reference to the common law [33]. Everything which is in the nature of a rule as to the practice to be followed in the administration of the Act must be laid before Parliament. Resort to the technique of referring to outside documents, which the Scrutiny Committee of the House of Lords can ask to be produced if it wishes to see them, is not in itself objectionable. But it will be objectionable if it enables the Secretary of State to avoid her statutory obligation to lay any changes in the rules before Parliament [41]. None of the solutions offered in previous cases as to where the line must be drawn in order to determine what is or is not a rule which requires to be laid before Parliament is entirely satisfactory [53, 92]. A more appropriate approach is to concentrate on the word rule: it ought to be possible to identify from an examination of the material in question, taken in its whole context, whether or not it is of the character of a rule or is just information, advice or guidance as to how the requirements of a rule may be met in particular cases [63]. Some of the content of the Occupation Codes of Practice on the UKBAs website is just guidance for sponsors and caseworkers. But the Codes also contain material which is not just guidance, but detailed information the application of which will determine whether or not the applicant will qualify [56 57]. Any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). So a fair reading of section 3(2) requires that it be laid before Parliament [57, 94, 97, 122, 128]. Whether the job that the applicant is applying for or occupies is above or below N/SVQ level 3 will determine whether or not it meets the requirements of the skilled migrant tier. It is a criterion which must be satisfied [61]. Therefore, statements in the Code that all qualifying jobs must be skilled at N/SVQ level 3 or above and that the job of a physiotherapy assistant is below that level both set out rules that ought to have been laid before Parliament under section 3(2) of the 1971 Act. As they were not laid, it was not open to the Secretary of State to rely on them as part of the Immigration Rules [66, 102, 115]. The question whether or not the required salary rates and the resident labour market test are rules for the purposes of section 3(2) does not require to be decided in order to dispose of this appeal. However, the Court unanimously considers that information as to what the required salary rate is has the character of a rule. As the rules do not set out any objective criterion that is to be applied to determine the amount of any increases, the question whether there should be increases and, if so, by how much, is left to the discretion of the Secretary of State. It follows that the rates themselves, and any changes to them, must be laid before Parliament [59, 102]. As regards the resident labour market test, where it applies, Lord Dyson, Lord Clarke and Lord Wilson consider that, since the requirements include advertising the post in the specified newspapers, journals and websites, any changes in these requirements are changes in the rules which must be laid before Parliament [106, 124, 129]. Lord Hope agrees that the requirement to meet the resident labour market test is a rule, as it includes the requirement that the job be advertised and that the sponsor give details of where and when the post was advertised. However, he considers that information as to where the job may be advertised does not itself amount to a rule that is determinative [58]. Lord Walker prefers to express no opinion on this issue [109]. It is acknowledged that the volume of material that will now have to be laid to give effect to the courts judgment will impose a heavy burden on Parliament, and on the Secondary Legislation Scrutiny Committee of the House of Lords in particular. Methods of communication today are very different from what they were in 1971 when the statutory requirement, which involves laying hard copies of every paper that has to be laid in each House, was introduced. The court questions whether the current system, which is now over forty years old, is still fit for its purpose today. But any changes to it must be a matter for Parliament [65, 109, 128].
Three companies (which can be conveniently referred to as Vestergaard) developed techniques (the techniques) which enabled them to manufacture and sell long lasting insecticidal nets. The purpose of a long lasting insecticidal net (LLIN) is to prevent the sleeper from being bitten by mosquitoes, and also to reduce the mosquito population. From 2000 to 2004, Mrs Trine Sig and Mr Torben Larsen were employed by Vestergaard. Their employment contracts contained provisions requiring them to respect the confidentiality of Vestergaards trade secrets. In 2004, Mrs Sig and Mr Larsen resigned from Vestergaard. They formed a Danish company, Intection, which started to carry on a business in competition with Vestergaard, manufacturing and selling new LLINs under the name Netprotect. Dr Ole Skovmand, who worked as a consultant to Vestergaard from 1998 to 2005, and played a major role in developing the techniques, agreed to assist Mrs Sig and Mr Larsen to manufacture Netprotect. Eventually, tests proved sufficiently successful for Intection to arrange a launch for the new product. Vestergaard issued proceedings in Denmark against Intection to stop the testing and future marketing of Netprotect. The day before proceedings were due to be heard, Mrs Sig resigned as a director of Intection, which then ceased to trade. A new English company, Bestnet Europe Ltd (Bestnet), was immediately formed, with Mrs Sig as the sole director, and Dr Skovmand as one of the shareholders. Mrs Sig and Mr Larsen provided their services to Bestnet through another English company, 3T Europe Ltd (3T). Dr Skovmand worked directly for Bestnet in connection with the testing, development, and projected manufacturing and marketing of Netprotect. From 2006, Netprotect LLINs were manufactured for and marketed by Bestnet. Vestergaard brought proceedings in England against Bestnet, 3T, Mr Larsen, and Mrs Sig, seeking damages and other relief for misuse of Vestergaards confidential information. In two judgments, Arnold J found that the techniques constituted confidential information in the form of trade secrets owned by Vestergaard, and that Dr Skovmand, Mr Larsen, Mrs Sig, Bestnet, and 3T, were liable for breach of confidence to Vestergaard. A number of the aspects of the two judgments were appealed. The Court of Appeal, in a judgment given by Jacob LJ (with which Jackson LJ and Sir John Chadwick agreed), upheld Arnold J on all points, save one, which is the subject of this appeal. That point was Arnold Js finding that Mrs Sig was liable to Vestergaard for breach of confidence, which the Court of Appeal reversed. Before the Supreme Court, Vestergaard argued that Mrs Sig is liable for breach of confidence on three different bases: (i) under her employment contract, either pursuant to its express terms or to an implied term; (ii) for being party to a common design which involved Vestergaards trade secrets being misused; (iii) for being party to a breach of confidence, as she had worked for Vestergaard, and then formed and worked for the companies which were responsible for the design, manufacture and marketing of Netprotect. The Supreme Court unanimously dismisses the appeal. Lord Neuberger gives the judgment of the Court. Vestergaards arguments fail because of the combination of two crucial facts: (i) Mrs Sig did not herself ever acquire the confidential information in question; and (ii) until some point during these proceedings, Mrs Sig was unaware that Netprotect had been developed using Vestergaards trade secrets [21]. An action for breach of confidence is based ultimately on conscience. In order for the conscience of the recipient to be affected, she must have information which she has agreed, or knows, is confidential, or she must be party to some action which she knows involves the misuse of confidential information [23]. Given that Mrs Sig knew neither of the identity of Vestergaards trade secrets, nor that they were being, or had been, used, it would seem to follow that Mrs Sig should not be liable for breaching Vestergaards rights of confidence [22]. More broadly, the law has to maintain a realistic and fair balance between (i) effectively protecting trade secrets and other intellectual property rights, and (ii) not unreasonably inhibiting competition in the market place. The protection of intellectual property, including trade secrets, is a vital contribution of the law to research and development. However, the law should not discourage former employees from benefitting society and advancing themselves by imposing unfair potential difficulties on their honest attempts to compete with their former employers [44], and it would be inconsistent with maintaining that balance to hold Mrs Sig liable to Vestergaard [45]. Mrs Sig is not liable for breach of confidence under any of the three alleged bases. (i) The express provisions of Mrs Sigs employment contract are of no assistance to Vestergaards case [30], and it is not seriously arguable that a term can properly be implied into the contract which would render her liable in the circumstances of this case [31]. (ii) Mrs Sig cannot be liable under common design. Although she was party to the activities which may have rendered other parties liable for misuse of confidential information, she neither had the trade secrets nor knew that they were being misused [34] [35]. Vestergaard cannot be entitled to damages from Mrs Sig in respect of losses suffered from misuse of their trade secrets at a time when she was honestly unaware of the fact that there had been any misuse of their trade secrets. A defendant can only be liable under common design if she shares with others the essential elements which renders the design unlawful [34],[39]. (iii) To find that Mrs Sig was wilfully blind to the fact that Dr Skovmand was using Vestergaards trade secrets would require a finding against Mrs Sig of dishonesty. The judge did not make any such finding, and there was no basis for making any such finding [42]. It is not enough to render a defendant secondarily liable for misuse of trade secrets by another to establish merely that she took a risk in acting as she did [43].
The Respondents were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the decision of this Court in Cadder v HM Advocate [2010] UKSC 43, and they did not have access to legal advice either before or during their police interviews. In the course of their interviews, they each made statements which were later relied on by the Crown at their trials. They were convicted and sentenced to various periods of imprisonment. They appealed, and their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. The Respondents argued, on the basis of Cadder, that the leading of evidence of the statements they made during their police interviews was a breach of their rights under Articles 6(3)(c) and 6(1) of the European Convention on Human Rights, and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence. For Birnie, it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under Article 6(1) and at common law. The Crowns objections to the devolution issue were repelled by the Appeal Court, and the Crown appealed to the Supreme Court. On the question whether the Respondents had waived their right to legal assistance, the Lord Advocates position before the Court was that the important point in these appeals was that raised in the case of Birnie. Unlike the other two Respondents, Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. The outstanding matters before the Court were therefore: (i) Whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies (ii) Whether Birnie waived his right of access to a lawyer when he made his unsolicited statement (iii) Whether the reliance by the Crown upon the appellants admissions in these circumstances The Supreme Court unanimously dismisses the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case. It unanimously dismisses its appeals on the issue as to waiver in regard to the police interviews of Jude and Hodgson. By a majority of 4 1, it allows the appeal on the question whether it was incompatible with Birnies right to a fair trial for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remits that matter for determination by the High Court of Justiciary. Lord Hope gives the leading judgment. Lord Kerr gives a partly dissenting judgment. (1) Time Bar: Section 100(3B) of the Scotland Act 1998, as amended, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of to Judes appeal; following his police interview; and deprived him of his right to a fair trial under Article 6(1) of the Convention. took place. The question is whether that section applies to proceedings brought by way of an appeal under the 1995 Act [6]. A criminal appeal under section 57(2) of the Scotland Act falls plainly into the category of a proceeding that is by virtue of the Scotland Act. The fact that the procedure under which the complaint is made is provided by the 1995 Act is irrelevant as far as this point is concerned, and does not render section 100(3B) inapplicable[13]. The opening subsection of section 100 makes the same distinction as that found in section 7(1) of the Human Rights Act 1998 between bringing proceedings on the basis of Convention rights, and relying on Convention rights in any such proceedings. The wording is not exactly the same in the two Acts, but the assumption is that they have the same effect. The time bar under section 7(5) of the Human Rights Act refers only to proceedings under section (1)(a) and not those under (1)(b) [15]. The time bar in section 100(3B) has the same effect, so it does not apply to proceedings of the kind referred to in section 100(1)(b). The point is that proceedings under that section are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights [16]. An appeal against conviction or sentence is still part of the prosecution process that has been brought by the Lord Advocate [17]. Further, the 1995 Act contains its own system of time limits for the bringing of appeals. It would be very odd if an appeal were subject to two different time limits under two different Acts [18]. (2) Waiver. Birnie was offered rights of access to a solicitor before he made his statement and was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both offers [26]. There is no absolute rule that the accused must have been given legal advice on the question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54 [28]. It was not suggested in the course of argument that an absolute rule requiring reasons for the accuseds decision to waive his right to legal assistance is to be found in the jurisprudence of the Strasbourg court. The only question for this Court is whether the absence of such an inquiry amounted in itself to a breach of a Convention right. It is not for the Supreme Court to say how the law and practice respecting crimes should be developed by the common law in Scotland. The fact that the waiver was made without legal advice and without reasons being requested may be taken into account in the assessment as to whether Birnie understood the right that was being waived. But Strasbourg does not require the Court to hold that it would necessarily be incompatible with Article 6 to rely on statements made to police just because it was not ascertained why the suspect did not want to speak to a lawyer. The Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention compliant system without itself imposing specific requirements on the State. The Supreme Court should be no less careful in the way that it deals with Scottish criminal law and procedure [29]. There is room for argument as to whether Birnies statement was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. The question of overall fairness for the purposes of Article 6(1) must be examined in the light of all the facts and circumstances, and is therefore a matter for determination by the High Court of Justiciary [33]. For Lord Kerr, it is an indispensable prerequisite that there must be some means of ascertaining the reason that the right to legal assistance has been waived [53]. On the available evidence, it has not been established that there was an effective waiver by Birnie of his right to legal assistance [57].
BA and PE were each served a deportation order after unsuccessful appeals on human rights and asylum grounds against the decision to deport them. Both unsuccessfully made further submissions to the Secretary of State in an attempt to have the order revoked. They then applied to judicially review the decision not to revoke the deportation order, maintaining that their removal from the United Kingdom would be in breach of their human rights. (Paras [3] [5]) This appeal concerns whether, once a claimant has had his appeal against a decision of the Secretary of State determined, he can make another appeal in country on the same grounds which were rejected on the earlier occasion. The Secretary of State argued that a repetitive claim did not fall within section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002, which provides for an in country appeal where the claimant has made an asylum claim, or a human rights claim whilst in the UK. The Secretary of State argued that where, as in BAs case, further representations have not been advanced as a fresh claim as defined under rule 353 of the Immigration Rules, or, as in PEs case, have not been accepted as such by the Secretary of State, they can only be considered out of country and that there is no obstacle to the deportations. (Paras [8]; [13] [15]) The appeal by the Secretary of State is dismissed by a majority of four to one. A claim for asylum which has been rejected should be allowed to proceed to appeal in country under sections 82 and 92 of the Nationality, Immigration and Asylum Act 2002, unless it has been certified as clearly unfounded under section 94 or excluded under section 96. This should be so whether or not the Secretary of State has accepted it as a fresh claim. (Paragraph [32]) Lord Hope gave the majority judgment of the Court. Lady Hale dissented. Lord Hope considered the phrase an asylum claim, or a human rights claim in s 92(4)(a) in the context of the 2002 Act as a whole and rejected the Appellants argument that the Supreme Court should follow the interpretation in R v Secretary of State for the Home Department, ex parte Onibiyo [1996] QB 768. In Onibiyo, claim in the context of the 1993 Act was held to mean a first claim, or a second or subsequent claim which has been accepted as a fresh claim by the Secretary of State, but not a claim which is repetitious. Lord Hope determined that whilst the 2002 Act uses substantially the same words as the 1993 Act, the statutory system is markedly different given the addition of a range of powers enabling the Secretary of State or immigration officer to deal with repetitious claims. No inference was drawn from the amendment of s 113 by s 12 of the Immigration, Asylum and Nationality Act 2006 as it is not yet in force. (Paras [25] [29]; [44] [46]) In a case such as this where no certification has been given under s 94 (providing for the exclusion of appeals that are clearly unfounded) or s 96 (removing the right of appeal if the claim raises an issue which has been or ought to have been dealt with in an earlier appeal), there is no need to impose a further requirement which is not mentioned elsewhere in the 2002 Act, namely that the words aclaim exclude a further claim which has not been held under rule 353 to be a fresh claim. (Para [29]) The Appellants construction risks undermining the beneficial objects of the Refugee Convention, as it would exclude, by s 95, claims which the Secretary of State considers not to be fresh claims from the ground of appeal in s 84(1)(g), when claims which are certified as clearly unfounded under s 94 would still be given the benefit of that section. (Section 84(1)(g) provides for an appeal where removal would place the UK in breach of its international or human rights obligations.) (Paras [30][32]; [47]) Rule 353 does not affect the operation of the legislative scheme, which provides the complete code for dealing with repeat claims. (Para [33]) Lady Hale, dissenting, would have allowed the appeal. Lady Hale concluded aclaim in s 92(4)(a) of the 2002 Act ought to be given the same meaning ascribed to the phrase in the 1993 Act in Onibiyo. There was no need for it to be defined in the 2002 Act given it had already been judicially interpreted. (Paras [39][40]) The addition of sections 94 and 96 should not be taken to mean that Parliament had abandoned the old meaning of claim without expressly saying so, particularly as the additional sections are not apt to cater for repetitious claims. (Paras [41][42]) Lady Hale disagreed that the Appellants construction would undermine the UKs international obligations. A person who presents a repeat claim on asylum or human rights grounds has already enjoyed the right of appeal on these grounds within this country. The current system allowing for an initial decision followed by an appeal system in the UK is sufficient compliance with those obligations. (Paras [42] [43])
The Appellants entered into a contract with the Respondents for the purchase of land with a view to its development to form a business park, or for industrial development. The purchase price was 365,000, but it was subject to a possible uplift (the Profit Share) in the events described in clause 9 of the missives. This was to be payable if the Appellants issued a notice indicating their wish to buy out the Respondents share of the open market value of the land, or if the Appellants wished to dispose of the whole part of the subjects by sale or by a lease for a term of more than 25 years. The Appellants took title to the subjects on 26 August 2004, and the land was developed as anticipated in the missives. On 4 October 2006, the Appellants transferred their title to the subjects to another company in the group, called Stewart Milne (Westhill) Limited (Westhill). They informed the Respondents of this sale. The Appellants contention is that the effect of this transaction was to trigger the obligation to pay the uplift to the purchase price as set out in the missives. Since the gross sale proceeds for the relevant part of the development land were less than the allowable costs which were to be deducted from the sale price in terms of the missives, the result was that no uplift was payable to the Respondents. The Respondents refused to accept that the transaction had this effect, since the open market value of the subjects at the date of the sale was greatly in excess of the consideration paid by Westhill. The Respondents raised an action for declarator that any uplift due to them in terms of the missives falls to be calculated by reference to the open market value of the subjects as at the date of sale by the Appellants to Westhill, less the allowable costs. Declarator was granted by the Outer House, and was upheld on appeal by an Extra Division in the Inner House. The Supreme Court unanimously dismisses the appeal, upholding the declarator that was granted in favour of the Council. The leading judgment is delivered by Lord Hope. Lord Clarke gives a short concurring judgment. The three events which trigger the Appellants obligation to pay the uplift are set out in clause 9. The definition of the Profit Share in the Schedule then sets out three ways in which the base figure for the profit share is to be arrived at: namely, by reference to the estimated profit or gross sale proceeds or lease value [15]. At first, they appear to be mutually exclusive, but the context tends to indicate that they have one thing in common. This is that the base figure is to be taken to be the amount which the subjects would fetch in a transaction that was conducted at arms length in the open market. Unlike the provisions for the case of a buy out or lease, no mention is made of a valuation exercise in the case of a sale. But a sale at arms length is usually taken to be the best evidence of the value of the subjects in the open market [16]. It is a reasonable assumption that these methods were expected to produce the same base figure, albeit by different routes or methods of calculation. Basing the calculation on the open market was, on a fair reading of the agreement, the commercial purpose that these various methods were intended to serve [17]. The problem is that it was not expressly stated that the gross sale proceeds were only to be used in the event of a sale at arms length in the open market. Was this a deliberate choice, or simply an oversight? The answer is to be found by examining how the agreement can be given effect on the assumption that it was an oversight. There are, of course, well understood limits to the extent to which a court can depart from the express terms of a written agreement in solving a problem of this kind [18]. The wording of the definition of Profit Share does not, in terms, confine the method to be used in the case of a sale to the gross sale proceeds [19]. There is nothing in the definition of Estimated Profit (or Open Market Valuation) to show that this method cannot be used in the event of a sale. There would therefore be no difficulty in implying a term to the effect that, in the event of a sale which was not at arms length in the open market, an open market valuation should be used to arrive at the base figure for the calculation of the Profit Share [20]. The context shows that the intention of the parties must be taken to have been that the base figure for the calculation of the uplift was to be the open market value of the subjects at the date of the event that triggered the obligation. It can be assumed that this is what the parties would have said if they had been asked about it at the time when the missives were entered into. The question is whether effect can be given to this unspoken intention without undue violence to the words they actually used in their agreement. The court considers that the words used do not prevent its being given effect in this way [22]. The provisions for payment of the Profit Share on the grant of a lease over the subjects undermine the Appellants argument that it must have been an essential element of the bargain that the profit had actually been realised before the obligation to pay the Profit Share was triggered [23]. A further, alternative argument was put forward by the Appellants. They had been prevented from presenting the argument in the Inner House, presumably because it was inconsistent with the case presented in the pleadings. But the overall aim should be to do substantial justice as between the parties, so the Court considers that this further argument about how the contract should be construed should be permitted. The Appellants point was that any commercial absurdity could be addressed by holding that the word disposal in clause 9 should be read as referring to an arms length transfer at market value rather than a transfer to an associated company for a notional value [13 14]. So the sale to Westhill should be disregarded and the obligation to pay the uplift triggered instead by a sale of the subjects in the open market by Westhill. But that solution cannot fit with the words used in the contract, to which Westhill are not a party. It would not be enough merely to substitute for the word Purchasers in the definition words that would include an associate company. It would also be necessary to write in clauses to protect the Respondents against the obvious risks that such an arrangement would give rise to. This would involve re writing the bargain for the parties, which the court cannot do [25].
This case concerns Council Directive 79/7/EEC on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security (the Directive). Article 4 of the Directive provides that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status. Article 7(a) provides that the Directive (which has direct effect) was to be without prejudice to the right of Member States to exclude from its scope the determination of pensionable age for the purpose of granting old age and retirement pensions. The United Kingdom has exercised that right. Under United Kingdom law, a woman born before 6 April 1950 is eligible for the statement retirement pension at the age of 60, and a man born before 6 December 1953 is eligible at the age of 65. For people born after those dates, the ages will converge over a period of time. At the time relevant to this appeal, the acquired gender of a transgender person was not recognised for the purpose of determining their qualifying pension age, if they were married. So far as MB was concerned, she was registered at birth as a man but has lived as a woman since 1991 and underwent gender reassignment surgery in 1995. She has not applied for a full gender recognition certificate because she and her wife are married and wish to remain so, a situation at that time precluded by the conditions for obtaining a full gender recognition certificate [13]. On 31 May 2008, MB turned 60. In July of that year, she applied for a state retirement pension, backdated to her 60th birthday. That application was rejected on 2 September 2008 because, in the absence of a gender recognition certificate, MB could not be treated as a woman for the purposes of pension eligibility and would instead become eligible at 65, as if she were a man. The First tier Tribunal, Upper Tribunal and Court of Appeal all agreed with that approach [14]. The appellant challenged the compatibility of that approach with the Directive. The Supreme Court refers the question to the Court of Justice of the European Union. Lord Sumption gives the reasons for the referral, with which the rest of the Panel agree. The question referred is whether the Directive precludes the imposition in national law of a requirement that, in addition to satisfying the physical, social and psychological criteria for recognising a change of gender, a person who has changed gender must also be unmarried in order to qualify for a state retirement pension [18]. Before 2005, the position under UK law was that a person was treated for all legal purposes as having the gender determined by their biological characteristics at birth. In 2002, the European Court of Human Rights deemed that to be incompatible with Article 8 of the European Convention on Human Rights (the right to private and family life) and, in so far as it prevented a transgender person from marrying a person of the same gender, incompatible with Article 12 (the right to marry and found a family) [4]. The Gender Recognition Act 2004 (which came into force on 4 April 2005) amended the situation such that a persons acquired gender would be legally recognised if they satisfied certain criteria. If a full certificate of gender recognition was issued to a person, their entitlement to a state retirement pension would be decided according to the rules that apply to the acquired gender [7]. If, however, a person was married, because same sex marriages were not at that time recognised, they received only an interim gender recognition certificate which did not change their legally recognised gender but, first, entitled them to have their marriage annulled after which a full gender recognition certificate would follow [8 9]. Once the Civil Partnership Act 2004 came into force in December 2005 a married person who changed their gender could have their marriage annulled and subsequently enter a civil partnership with their former spouse [10]. In 2014, that situation was changed by the entry into force of the Marriage (Same Sex Couples) Act 2013. The Gender Recognition Act 2004 was amended so that a full gender recognition certificate could, from then on, be issued to a married applicant with the consent of the applicants spouse [11]. MB has argued that the CJEU has recognised that article 4(1) of the Directive prohibits discrimination between persons of a particular birth gender and people who have acquired that gender and, although it is for member states to determine the conditions by which someone may acquire a gender, that only applies to physical or psychological characteristics and not to marital status [15(1) (2)]. The imposition of a marital status criterion on a person who satisfies the states physical and psychological criteria must therefore be unlawful, and cannot appropriately affect eligibility for state retirement pension [15(3) (4)]. MB therefore argues that the Gender Recognition Act 2004 discriminates against her directly on the grounds of sex, and indirectly because the great majority of people who have undergone gender reassignment have been reassigned from male to female [15(5)]. The Secretary of State argues that the UK procedure by which, for a persons acquired gender to be recognised, a gender recognition certificate must be obtained, is lawful [16(1) (3)]. There is no reason that the conditions for the acquisition of a gender should be limited to satisfaction of physical and psychological criteria. Conditions may properly reflect social factors such as the status of marriage, which may include a definition of marriage as between a man and a woman [16(4) (5)]. No question of indirect discrimination arises [16(6)]. The Supreme Court is divided on the correct answer to the question and, since there is no CJEU authority directly in point, it refers the question for their guidance [17].
In this appeal, the Appellants argue that sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 (the 2010 Act) are outside the legislative competence of the Scottish Parliament. Section 1 of the 2010 Act prohibits the display of tobacco products in a place where tobacco products are offered for sale. Section 9 prohibits vending machines for the sale of tobacco products [3]. The limits to the legislative competence of the Scottish Parliament are set out in the Scotland Act 1998 (the 1998 Act). The Appellants first broad argument is that, by reference to their purpose, sections 1 and 9 relate to the sale and supply of goods to consumers and product safety. These are matters which are reserved to the UK Parliament under the 1998 Act and on which the Scottish Parliament cannot legislate. Their second broad argument is that sections 1 and 9 modify the law on reserved matters. They say that two sets of Regulations (the Tobacco for Oral Use (Safety) Regulations 1992 and the Tobacco Products (Manufacture, Presentation and Sale) (Safety) Regulations 2002) should be treated as being part of the law on reserved matters because their subject matter is a reserved matter. Those Regulations contain rules of Scots criminal law which are special to a reserved matter. Sections 1 and 9 modify those rules, which under the 1998 Act they cannot do. The Appellants also say that sections 1 and 9 create new offences, in addition to those already provided for in the Regulations, which can only be committed in the course of the sale and supply of goods to consumers [2, 3, 25 and 38]. This is the first case in which provisions of an Act of the Scottish Parliament have been challenged on the ground that they relate to the specific reservations in the list of reserved matters [6]. At first instance, the Court of Session held that none of the Appellants challenges to the legislative competence of sections 1 and 9 (which included the challenges made in this appeal) were well founded, and it dismissed their petition for judicial review. Their reclaiming motion (appeal) to the Inner House of the Court of Session was unsuccessful [4]. The Supreme Court unanimously dismisses the appeal. Sections 1 and 9 of the 2010 Act are within the legislative competence of the Scottish Parliament. The judgment is given by Lord Hope with whom all the other Justices agree. Three principles should be followed when undertaking the exercise of determining whether, according to the rules that the 1998 Act lays down, a provision of an Act of the Scottish Parliament is outside competence. First, the question of competence must be determined in each case according to the particular rules that have been set out in the 1998 Act. Second, those rules must be interpreted in the same way as any other rules that are found in a UK statute. Third, the description of the 1998 Act as a constitutional statute cannot be taken, in itself, to be a guide to its interpretation [12 15]. The exercise is essentially one of statutory construction. The answer to the question of whether the challenged provisions are within legislative competence is to be found by construing the words used by the 1998 Act and examining the challenged provisions in the light of the meaning that is to be given to those words. In this case, the first stage is to examine sections 1 and 9 and to identify their purpose. The second stage is to examine the relevant rules in the 1998 Act to identify the tests that have to be applied. This stage is of critical importance and it requires to be handled with great care. The final stage is to draw these exercises together to reach a conclusion on the legislative competence of sections 1 and 9 [9 and 18]. The purpose of section 1 is to enable the Scottish Ministers to take steps which might render tobacco products less visible to potential consumers and thereby achieve a reduction in sales and thus in smoking. The purpose of section 9 is to make cigarettes less readily available, particularly (but not only) to children and young people, with a view to reducing smoking. The legal effect and short term consequences are consistent with those purposes [22]. In the 1998 Act, the reserved matter of the sale and supply of goods and services to consumers encompasses all aspects of regulation of the sale and supply of goods and services to consumers within the field of consumer protection. The reserved matter of product safety extends to matters falling within the scope of section 11 of the Consumer Protection Act 1987 (which gives the Secretary of State power to make product safety regulations) [34, 36, 40 and 42]. The Court does not see how it can be said that the purpose of sections 1 and 9 has anything to do with consumer protection. The aim of sections 1 and 9 is to discourage or eliminate sales of tobacco products, not to regulate how any sales are to be conducted so as to protect the consumer from unfair trade practices [40 41]. The purpose of sections 1 and 9 also has nothing to do with the standards of safety to be observed in the production and sale of tobacco products. Sections 1 and 9 are designed to promote public health by reducing the attractiveness and availability of tobacco products, not to prohibit in any way their sale to those who wish and are old enough to purchase them. The words product safety in the 1998 Act direct attention to matters that are of concern to the single market in the general area of trade and industry. It is not the purpose of sections 1 and 9 to disrupt or unbalance trading in tobacco products in that way at all [42]. Sections 1 and 9 do not seek to amend or otherwise affect anything that is set out in the two sets of Regulations. In that sense they cannot be said to modify them. The purpose of the offences that sections 1 and 9 create is to discourage or eliminate the sale or supply of tobacco products. If this purpose is realised, that will be their effect. This is plain in the case of the vending machines, because the effect of section 9 is to prohibit the sale of tobacco products by way of vending machines. The Court can see no connection between the purpose and effect of section 1 and the law on reserved matters. The criminal law relating to any sales in a place where tobacco products are available for sale will not be affected by section 1. Section 1 does not create any new offence in regard to any such sales, and the existing offences are not modified. Section 1 is not a provision within the scope of section 11 of the Consumer Protection Act 1987 [44 45].
This appeal concerns the proper approach of Employment Tribunals (ETs) when ordering that an employer reinstate an employee who has been unfairly dismissed. The appeal arises from the scandal over the disputed identification of a fingerprint in a murder inquiry in 1997, which resulted in the trial and conviction (later quashed) of David Asbury (the McKie Scandal). A fingerprint at the murder scene was identified by four experts from the Scottish Criminal Records Office (SCRO) fingerprint bureau as belonging to Detective Constable Shirley McKie. The SCRO provided services for the police and Crown Office, and their experts duties included signing fingerprint reports for use in criminal trials and giving evidence at trial. As a result of the identification, DC McKie was charged with perjury for giving evidence at Mr Asburys trial that she had never been to the crime scene. During DC McKies trial differences of opinion emerged about the fingerprint identification and she was acquitted. The McKie Scandal generated much media interest and criticism of the fingerprint service in Scotland. The appellant, Ms McBride, was one of the experts involved in the McKie Scandal, and she and the other experts were suspended from 3 August 2000 while investigations took place. One investigation concluded that the experts had not been guilty of any malicious wrongdoing and recommended that they return to work without any disciplinary action being taken. Accordingly, in May 2002 Ms McBride and the other experts resumed work on restricted duties and undertook extensive retraining. They sought to return to full duties (including the signing of joint reports and giving evidence in court) but were not allowed to do so. This was because there remained disagreement, within the SCRO, nationally and internationally, over the McKie Scandal and concern that any evidence from the experts at trial would be undermined by cross examination on matters relating to the scandal. In 2007 the Scottish Police Services Authority (SPSA, the respondent, now known as the Scottish Police Authority) was established. David Mulhern was tasked with integrating the fingerprint service into a new Scottish Forensic Science Service. He made it clear he did not want the experts involved in the McKie Scandal to transfer to the SPSA but that redeployment was an option. After her employment transferred to the SPSA, Ms McBride indicated that she would discuss redeployment but wished first to discuss reinstatement to unrestricted duties. There was no such discussion and she was dismissed. She claimed for unfair dismissal. The ET held that Ms McBride had been unfairly dismissed and ordered that she be reinstated to the position of Fingerprint Officer and treated in all respects as if she had not been dismissed. In its reasoning the ET held it would be practicable for the SPSA to reinstate the claimant to the role of (non court going) fingerprint expert. The SPSA appealed, and the Employment Appeal Tribunal (EAT) revoked the ETs judgment on remedy and remitted the case to a freshly constituted tribunal to determine compensation, holding that the ETs decision that it was practicable for the SPSA to comply with an order for reinstatement was perverse. On Ms McBrides appeal to the Court of Session, although the Inner House rejected the EATs conclusion that the ETs order for reinstatement was perverse, it held that the ET had erred in law by ordering the SPSA to employ Ms McBride on altered contractual terms. Ms McBride appealed to the Supreme Court. The Supreme Court unanimously allows Ms McBrides appeal. Lord Hodge (with whom the other Justices agree) gives the leading judgment. The case is remitted to the original ET, or to a tribunal which includes the member or members of the original ET who are still in office, to consider in what respects it should vary its order for compensation in view of the time that has passed since the order. Lord Hodge observes that the ETs order for reinstatement (set out at [18]) viewed alone is not open to criticism, as it reflects the definition of such orders set out under s.114(1) of the Employment Rights Act 1996. The question is whether the context in which the order was made and the ETs reasoning in support of the order should give rise to a different interpretation of the order [39]. Lord Hodge answers this question in the negative. The ET was not seeking to impose a contractual limitation in the reinstatement order removing the excluded duties (i.e. signing reports and attending court to give evidence) from Ms McBrides job description. Rather it was recognising a practical limitation on the scope of her work caused by circumstances beyond her and her employers control [40]. This conclusion is supported by four reasons: (1) The ET was aware both of Ms McBrides terms of employment and that for several years previously she had been actively employed as a fingerprint officer but had not been asked or allowed to sign reports or give evidence in court. That was the status quo to which she would have returned pursuant to a reinstatement order [41]. (2) The ET was aware that Ms McBride wanted to perform the excluded duties but held that the SPSAs decision that she could not return to those duties was reasonable [42]. (3) The ET rejected the idea that continuing in a non court going role amounted to alternative employment. It criticised Mr Mulherns evidence, which had been calculated to give the impression that Ms McBride had done little of value in the previous years, and accepted the evidence of Ms McBrides managers about the amount of work carried out by fingerprint experts which does not involve the excluded duties and their assessment that Ms McBride had made a valuable contribution in the years in which her duties had been restricted [43]. (4) The ETs references to Ms McBride being reinstated to a non court going fingerprint officer role were included in parenthesis and spoke of an understanding, which may suggest that the ET was considering the practical context of the reinstatement rather than an alteration of the terms of employment. The words in parenthesis confirmed that the order for reinstatement did not amount to an order that the employer must alter the status quo by allowing Ms McBride to resume the excluded duties [44]. Lord Hodge rejects an additional argument by the respondent that the ETs view on the practicability of compliance with the reinstatement order was perverse because it had the potential to expose the SPSA to a claim by Ms McBride that it was in fundamental breach of her employment contract by refusing to allow her to perform the excluded duties. This argument was not developed in the courts below and, in any event, would not have succeeded if properly developed at the time in the light of the ETs findings of fact [30 31 & 46 52].
The legal issue in these cases concerned the mental element of intent which must be proved when a defendant is accused of being a secondary party to a crime. The question of law was whether the common law took a wrong turning in two cases, Chan Wing Siu v The Queen [1985 1 AC 168 and Regina v Powell and English [1999] 1 AC 1. The appellant Jogee was convicted at Nottingham Crown Court of the murder of Paul Fyfe. Mr Fyfe was the boyfriend of Naomi Reid and he was stabbed to death in the hallway of her home in the early hours of 10 June 2011 by the appellants co defendant, Mohammed Hirsi. Hirsi was convicted of murder.1 The appellant and Hirsi spent the previous evening at various places, taking drink and drugs. They became increasingly intoxicated and increasingly aggressive. Shortly before midnight they arrived at Ms Reids house. She told them to leave and that she was expecting Mr Fyfe to return. They said that they were not scared of him and would sort him out. They left but Hirsi returned and was there when Mr Fyfe arrived. Ms Reid called the appellant and told him to fetch Hirsi, which he did, but soon afterwards Hirsi and the appellant came back to her house. Hirsi entered the house and there was an angry confrontation between him and Mr Fyfe. The appellant was outside with a bottle and shouting to Hirsi to do something to Mr Fyfe and at one stage the appellant came to the door and threatened to smash the bottle over Mr Fyfes head. The fatal stabbing was done by Hirsi with a knife which he took from the kitchen. The judge directed the jury that the appellant was guilty of murder if he took part in the attack on Mr Fyfe and realised that it was possible that Hirsi might use the knife with intent to cause serious harm. The appellant Ruddock was convicted in the Circuit Court at Montego Bay, Jamaica, of the murder of Peter Robinson. The appellants co defendant, Hudson, pleaded guilty to the murder. Mr Robinson was a taxi driver and the prosecutions case was that the murder was committed in the course of robbing him of his station wagon. The police evidence was that the appellant made a statement under caution which amounted to an admission that he was involved in committing the robbery and that he was present when Hudson killed the victim by cutting his throat but a denial that the appellant was responsible for the killing. The judge directed the jury that Ruddock was guilty of murder if he took part in the robbery and knew that there was a possibility that Hudson might intend to kill the victim. 1 Hirsi pleaded guilty to murder. amended to Hirsi was convicted of murder. on 3rd March 2016 [see judgment para 101] In each case the direction to the jury derived from Chan Wing Siu and Reg v Powell and English which were binding on the trial judges. The unanimous conclusion of the court is that Chan Wing Siu and Powell and English did take a wrong turning and these appeals should therefore be allowed. The correct rule is that foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage, which is the proper mental element for establishing secondary liability. The court has been concerned with a part of the law of secondary liability for crime. It concerns the person who did not himself forge the document, fire the gun or stab the victim (the person who did is called the principal), but who is said to have encouraged or assisted the principal to do so. There is no question that persons who are indeed together responsible for a crime are all guilty of it, whether as principals or secondary parties. Sometimes it is not possible to determine exactly whose hand performed the vital act, but this does not matter providing that it is proved the each defendant either did it himself of intentionally assisted or encouraged it. These cases do not affect that basic rule at all. Within this part of the criminal law, the court has been concerned with a narrower sub part. This concerns secondary parties who have been engaged with one or more others in a criminal venture to commit crime A, but in doing so the principal commits a second crime, crime B. In many of the reported cases crime B is murder committed in the course of some other criminal venture, but the rule of law is not confined to cases of homicide, or indeed to cases of violence. The question is: what is the mental element which the law requires of the secondary party? This narrower area of secondary responsibility has sometimes been labelled joint enterprise, but this is to misuse that expression. To speak of a joint enterprise is simply to say that two or more people were engaged in a crime together. That, however, does not identify what mental element must be shown in the secondary party. The particular narrower area of secondary responsibility here in question where crime B is committed during the course of crime A has been, in the past, more precisely been labelled parasitic accessory liability. The two cases of Chan Wing Siu and Reg v Powell and English held that in the kind of situation described, the mental element required of the secondary party (D2) is simply that he foresaw the possibility that D1 might commit crime B. If D2 did foresee this, the cases treated his continued participation in crime A not simply as evidence that he intended to assist crime B, but as automatic authorisation of it. So D2 was guilty under this rule, even if he did not intend to assist crime B at all. This set a lower test for D2 than for D1, who will be guilty of crime B only if he has the necessary mental element for that crime, usually intent. And it is in contrast to the usual rule for secondary parties, which is that the mental element is an intention to assist or encourage the principal to commit the crime. The conclusion of this court is that once the two questioned decisions are fully analysed, it is plain that they did take a wrong turning in their reasoning, even if the outcome might well have been the same if the error had not been made. The prior cases which were relied on were only part of the history and important cases were not discussed. The decisions departed from the well established rule that the mental element required of a secondary party is an intention to assist or encourage the principal to commit the crime. They also advanced arguments based on the need that co adventurers in crimes which result in fatality should not escape conviction, without considering whether the secondary parties would generally be guilty of manslaughter in any event. The law in this field has always been a matter of the common law rather than of statute, and so it is right for the courts, which have created it, to investigate whether a wrong turning was taken. The court holds, in a unanimous judgment, that the law must be set back on the correct footing which stood before Chan Wing Siu. The mental element for secondary liability is intention to assist or encourage the crime. Sometimes the encouragement or assistance is given to a specific crime, and sometimes to a range of crimes, one of which is committed; either will suffice. Sometimes the encouragement or assistance involves an agreement between the parties, but in other cases it takes the form of more or less spontaneous joining in a criminal enterprise; again, either will suffice. Intention to assist is not the same as desiring the crime to be committed. On the contrary, the intention to assist may sometimes be conditional, in the sense that the secondary party hopes that the further crime will not be necessary, but if he nevertheless gives his intentional assistance on the basis that it may be committed if the necessity for it arises, he will be guilty. In many cases, the intention to assist will be co terminous with the intention (perhaps conditional) that crime B be committed, but there may be some where it exists without that latter intention. It will remain relevant to enquire in most cases whether the principal and secondary party shared a common criminal purpose, for often this will demonstrate the secondary partys intention to assist. The error was to treat foresight of crime B as automatic authorisation of it, whereas the correct rule is that foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage. It is a question for the jury in every case whether the intention to assist or encourage is shown. This brings the mental element of the secondary party back into broad parity with what is required of the principal. The correction is also consistent with the provision made by Parliament in a closely related field, when it created (by the Serious Crime Act 2007) new offences of intentionally encouraging or assisting the commission of a crime, and provided that a person is not to be taken to have had that intention merely because of foreseeability. The court makes clear what the present cases do not decide. First, they do not affect the law that a person who joins in a crime which any reasonable person would realise involves a risk of harm, and death results, is guilty at least of manslaughter. Manslaughter cases can vary in their gravity, but may be very serious and the maximum sentence is life imprisonment. Secondly, they do not affect the rule that a person who intentionally encourages or assists the commission of a crime is as guilty as the person who physically commits it. Thirdly, they do not alter the fact that it is open to a jury to infer intentional encouragement or assistance, for example, from weight of numbers in a combined attack, whether more or less spontaneous or planned, or from knowledge that weapons are being carried. It is a commonplace for juries to have to decide what inferences they can properly draw about intention from an accused persons behaviour and what he knew. This necessary correction to the wrong turning taken by the law does not mean that every person convicted in the past as a secondary party, where the law as stated in Chan Wing Siu was applied, will have suffered an unsafe conviction. A correction to the law does not have this effect. The outcome may in many cases have been the same. Those whose convictions are outside the time limit for appealing would require the exceptional leave of the Court of Appeal, Criminal Division, to challenge them out of time. It is for that court to enquire whether substantial injustice would occur in any particular case, but it is not the law that that is shown simply because the rules which then prevailed have now been declared to have contained a flaw. The same rules apply where the Criminal Cases Review Commission is asked to consider referring a case to the Court of Appeal. In these two cases, the convictions for murder must be set aside because the law was wrongly understood and the appeals were brought in time. In Jogee it was argued on his behalf that he ought not to have been convicted of either murder or manslaughter and that his conviction should simply be quashed. That argument was quite unrealistic. On the evidence and the jurys verdict he was unquestionably guilty at least of manslaughter, and there was evidence on which the jury could have found him guilty of murder on a proper direction. The court will ask for written submissions from both parties whether there should be a re trial for murder or whether the conviction for murder should be replaced by a conviction for manslaughter. In the case of Ruddock there were other, unrelated, misdirections. The Board asks for written submissions from both sides, now that the correct position in law has been identified, as to what should be the appropriate disposal. This summary is provided to assist in understanding the Courts decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: http://supremecourt.uk/decided cases/index.html
The appellants son is alleged to have been one of a group of terrorists operating in Syria, involved in the murder of US and British citizens. In June 2015, the US made a mutual legal assistance (MLA) request to the UK in relation to an investigation into the activities of that group. The Home Secretary requested an assurance that the information would not be used directly or indirectly in a prosecution that could lead to the imposition of the death penalty. The US refused to provide a full death penalty assurance. Ultimately, in June 2018, the Home Secretary agreed to provide the information to the US without requiring any assurance whatever. The appellant challenged the Home Secretarys decision by way of judicial review. Her claim was dismissed by the Divisional Court, which certified two questions of law of public importance: (i) whether it is unlawful for the Secretary of State to exercise his power to provide MLA so as to supply evidence to a foreign state that will facilitate the imposition of the death penalty in that state on the individual in respect of whom the evidence is sought; and (ii) whether (and if so in what circumstances) it is lawful under Part 3 of the Data Protection Act 2018 (DPA), as interpreted in the light of relevant principles of EU data protection law, for law enforcement authorities in the UK to transfer personal data to law enforcement authorities abroad for use in capital criminal proceedings. The Supreme Court allows the appeal. The majority of the Justices (Lord Reed, Lord Carnwath, Lord Hodge, Lady Black and Lord Lloyd Jones) dismiss the challenge to the decision brought under the common law, but the Court unanimously holds that the decision failed to comply with the DPA. Lord Kerr would have allowed the appeal on both grounds. Lady Hales judgment acts as a short guide to the other judgments. Ground (i): Has the common law evolved to recognise a principle prohibiting the provision of MLA that will facilitate the death penalty? The majority answer this question no. The reasons for considering that the common law has not developed so far are explained by Lord Reed and Lord Carnwath. Lord Carnwath finds that the power of the courts to develop the common law must be exercised with caution [193]. The death penalty as such has never attracted the attention of the common law: the key legal developments have come from Parliament and the ECHR, not from the domestic courts [194]. One recent development is section 16 of the Crime (Overseas Production Orders) Act 2019. This section confirms: (i) that this is an area in which Parliament remains directly involved; and (ii) that, where the Act applies, there is nothing that specifically prohibits the Home Secretary from exchanging material in cases whether they have sought but have not received assurances that the information they exchange will not be used to facilitate the death penalty. This suggests that the common law has not developed as suggested by Lord Kerr [195]. Lord Carnwath also finds that powers to deport or extradite under domestic law are subject to review on public law grounds, but are not subject to an absolute prohibition on removal by reference to the possible consequences in the receiving state [198]. Finally, it is difficult to reconcile the DPA scheme with the development of an absolute common law prohibition as advanced by Lord Kerr [205]. Lord Reed agrees with Lord Carnwath for the reasons given in his judgment and for additional reasons. He finds that the common law is subject to judicial development, but such development must build incrementally on existing principles. This is necessary to: (i) preserve legal certainty; and (ii) ensure compatibility with the pre eminent constitutional role of Parliament in making new law [170]. The development of the law proposed by Lord Kerr does not seem to Lord Reed to be an incremental step [171]. Lord Reed adds that judicial recognition of the value of life can have an important influence on adjudication in this context. This is because the courts are required to take a more rigorous approach when reviewing the exercise of discretion where life may be at stake [176 178]. Lord Reed refers to the respondents submissions that the Home Secretarys decision making complied with that higher standard of review [179]. He notes that the Home Secretarys decision might have been open to challenge on the ground that it failed to comply with the common law requirement of rationality, but declines to express a view on this [181 182]. Lord Hodge agrees with Lord Reed and Lord Carnwath that the common law does not recognise a right to life which can be used to prevent the Home Secretary from providing information to a foreign country in the context either of MLA or the sharing of intelligence [231 234]. Lord Kerr underlines the steadfast opposition by successive UK governments to the imposition of the death penalty in any circumstances, and the related long standing policy not to provide MLA unless death penalty assurances are received [26]. He notes that the common law is not immutable but develops over time to reflect the changing values of society [102]. Lord Kerr summarises six factors favouring recognition of the common law principle in question at [141]: (i) the Bill of Rights; (ii) British contemporary values; (iii) European Court of Human Rights (ECHR) jurisprudence (discussed at [107 124]); (iv) EU jurisprudence (discussed at [125 134]); (v) the fundamental illogicality of refusing to extradite or deport individuals for trial where there is a risk of the imposition of the death penalty, on the one hand, and facilitating precisely such an outcome by the provision of MLA without requiring assurances, on the other; and (vi) Judicial Committee of the Privy Council jurisprudence (discussed at [135 140]). Lord Kerr concludes that a common law principle should be recognised whereby it is deemed unlawful to facilitate the trial of any individual in a foreign country where, to do so, would put that person in peril of being executed [142]. This principle should be disapplied only if MLA is absolutely necessary as a matter of urgency in order to save lives or protect the nations security [164]. Law must be responsive to societys contemporary needs, standards and values, which are in a state of constant change. That is an essential part of the human condition and experience. The adjustment to the common law proposed reflects the contemporary standards and values of our society [144]. Ground (ii): Is it lawful under Part 3 of the DPA to transfer personal data to law enforcement authorities abroad for use in capital criminal proceedings? The Court is unanimous in holding that the Home Secretarys decision was unlawful under the DPA. The DPA requires the data controller to address his mind to the specific requirements of the Act and this was not done. The DPA is discussed by Lady Hale at [6 15], Lord Kerr at [152 159] and Lord Carnwath at [207 228]. Lady Hale outlines the basic structure of the DPA at [8 12]. She explains that Part 3 of the DPA makes provision about the processing of personal data by competent authorities for law enforcement purposes. Sections 73 to 76 set out the general conditions that apply to such transfers. The data controller cannot transfer data unless the three conditions in section 73(1)(a) are met [8]. Condition 1 is that the transfer is necessary for any of the law enforcement purposes [9]. Condition 2 is that the transfer is (a) based on an adequacy decision of the European Commission; (b) if not based on an adequacy decision, is based on there being appropriate safeguards; or (c) if not based on an adequacy decision or appropriate safeguards, is based on special circumstances [10]. She notes that this transfer was not based on an adequacy decision or appropriate safeguards, because there were none [10]. Nor does the transfer meet the special circumstances requirement: a transfer is based on special circumstances only if it is necessary for any of the five purposes listed in section 76(1). This condition is not met [12]. Lord Carnwath agrees that there has been a breach of the DPA. He focuses on the provisions governing transfers of personal data to a third country in sections 72 to 78 of Part 3. section 73 deals specifically with transfers of personal data to a third country and prohibits such transfers unless a number of conditions are met. As Lady Hale, he notes that Condition 2 is that the transfer must be based on an adequacy decision, or on there being appropriate safeguards, or on special circumstances. There was no adequacy decision here, hence the discussion centres upon whether there were appropriate safeguards or special circumstances sanctioning the transfer [209 213]. section 75 defines the circumstances in which a transfer is based upon there being appropriate safeguards, discussed at [214 219]. Lord Carnwath concludes that the information in question was transferred without any safeguards at all [220]. The lawfulness of the transfer therefore stands or falls on the special circumstances condition [221]. The circumstances in which a transfer is based on special circumstances are defined in section 76, discussed at [221 224]. Lord Carnwath concludes that the Act requires a specific assessment under the section, and that this did not take place [225]. The decision was based on political expediency, rather than consideration of strict necessity under the statutory criteria [227]. It was consequently unlawful under the DPA. Lady Hale raises a further issue under section 76(2) DPA, which concerns the special circumstances gateway. section 76(2) provides that: subsection (1)(d) and (e) do not apply if the controller determines that fundamental rights and freedoms of the data subject override the public interest in the transfer [12]. Lady Hale finds that these fundamental rights and freedoms include the rights protected by the European Convention on Human Rights, the most fundamental of which is the right to life [13 14]. This points towards an interpretation of section 76(2) which would not allow the transfer of personal data to facilitate a prosecution which could result in the death penalty [15]. Lord Carnwath sees the force of Lady Hales comments. He concludes that, at least, failure to consider this point is a further reason for holding that the Home Secretarys decision cannot stand [228]. Lord Hodge also sees the force of Lady Hales comments, but as the point was not fully argued, he reserves his position on it [230]. Lord Kerr agrees that there is a breach of the DPA, but for different reasons. He notes that it is common ground that provision of MLA involved the processing of personal data falling within Part 3 DPA. Such processing is only lawful where it complies with the data protection principles in section 34 DPA. Unlike the other justices, Lord Kerr held, under ground 1, that the transfer of material to the US authorities without obtaining death penalty assurances was contrary to the common law. He therefore concludes that it follows that the first and second data protection principles in section 34 requiring processing that is lawful and fair are not met [152 153]. Lord Kerr goes on to discuss section 73 DPA [154]. He agrees that there was no adequacy decision and no appropriate safeguards [155]. Transfer on the basis of special circumstances can only occur following an assessment of what is strictly necessary. Such an assessment was not made [158], hence the transfer of data breached section 73.
This appeal arises out of a claim by the appellant under a guarantee of a contract, to charter a vessel which was met with a defence from the respondent that the contract was procured by bribery and that the guarantee was therefore unenforceable. The bribery allegation was based on evidence of confessions that the appellant alleged were obtained by torture and therefore inadmissible. A contract for the charter of a ship was agreed in August 2008 between the appellant, a Hong Kong company now in liquidation, and the respondents subsidiary, a Hong Kong company also now in liquidation. A guarantee was agreed between the respondent, a Chinese company, and the appellant by which the respondent guaranteed its subsidiarys performance under the contract. The guarantee is governed by English law and confers jurisdiction on the English courts. The vessel was delivered in April 2010, but from September 2010 the subsidiary defaulted on its payments. The appellant brought arbitration proceedings and ultimately terminated the contract for the subsidiarys repudiatory breach. The appellant pursued its claim in arbitration for damages for the subsidiarys breach, achieving a partial final award in November 2012. In September 2012, the appellant commenced proceedings against the respondent under the guarantee in the Commercial Court. In its amended defence, the respondent alleged that the contract had been procured by bribes paid by or on behalf of the appellant to senior employees of the subsidiary. The respondent relied on confessions made by three individuals during an investigation undertaken by the Chinese Public Security Bureau. In an amended reply the appellant alleged that those confessions had been obtained by torture and consequently were inadmissible as evidence in the proceedings. At trial, Knowles J gave judgment in favour of the appellant, finding that there was no bribery and that he could not rule out torture. On appeal, the Court of Appeal held that the judges decision was unsustainable and sent the case back for reconsideration by a different judge. The appellant appealed to the Supreme Court seeking restoration of the judges judgment. The Supreme Court unanimously allows the appeal and restores the judgment in favour of the appellant. Lord Hamblen and Lord Leggatt give the judgment, with which all members of the Court agree. The issue on the appeal is whether the Court of Appeals criticisms were justified and warranted remitting the case for fresh determination. The four main criticisms were that the judge: (i) failed to follow the logical steps necessary to reach a proper evaluation of the admissible evidence; (ii) failed to ask and answer the correct legal question as to what weight should be accorded to the confession evidence; (iii) fell into legal error in failing to take all the appropriate matters into account in deciding the bribery issue; and (iv) fell into legal error in failing to exclude irrelevant matters, including what the Court of Appeal described as his lingering doubt as to whether the confessions were procured by torture, in considering whether the alleged bribe was paid [51] [52]. On the first criticism, the judge had considered the bribery issue before the torture allegations [41] [44]. The Court of Appeal took the view that the judge should have decided the torture allegations first and, having concluded the confession evidence was admissible, proceeded to determine the weight to be given to that evidence, then subsequently have considered whether bribery had taken place [55] [56]. The Supreme Court accepts that the Court of Appeals approach is logical, but it is not mandatory. The manner and order of the consideration of admissibility and weight of evidence are matters for the trial judge and there will usually be more than one legitimate approach [57] [58]. The judge took the confession evidence into account on the assumption, without deciding, that the evidence was admissible. That was a permissible approach [59]. Having done so, the judge considered it unnecessary to make a finding on the torture issues because he was in any event satisfied there was no bribery. The approach taken was both legitimate and consistent with the way the case was put before him [62], [65]. On the second criticism, the Court of Appeal considered that the judge had not adequately addressed the weight to be given to the confession evidence [66]. Though not separately set out, the Supreme Court considers that the judge did address the weight of the evidence in the factors relied upon in his conclusion on bribery. In circumstances where that evidence was the only evidence of bribery, in finding that there was no bribery the judge was necessarily finding that the confession evidence was of little or no weight. It cannot be said that his conclusion on bribery was unreasonable or unsustainable and there were ample grounds to support it [67] [84]. On the third criticism, the Court of Appeal considered that the judge failed to take into account the details of the confessions made and should have addressed each confession made by each individual rather than dealing with them compendiously [85]. Though the Supreme Court agrees that it would have been more satisfactory for the judge to have addressed the confession evidence in greater detail, it is clear that he did consider the confession evidence of all three individuals. The failure to consider it systematically is not an error of law [85] [87]. On the fourth criticism, the Court of Appeal considered that, as the judge did not find the allegation of torture proved on a balance of probabilities, he should have disregarded it entirely [93]. However, the judge did not need to and did not reach any conclusion that torture had or had not been proved [94]. Even if the judge had reached a definite conclusion that torture had not been proved on a balance of probabilities, there would have been no inconsistency between such a conclusion and the finding that torture was a real possibility that affected the reliance that should be placed on the confessions [95]. The facts that the court can take into account in assessing the weight to be given to hearsay evidence in civil proceedings are not limited to facts proved to the civil standard of proof [96]. While it is settled law that evidence proved on a balance of probabilities to have been obtained by torture is inadmissible, there is no rule that if an allegation that torture was used is not proved to that standard a possibility that evidence was obtained by torture must be ignored when deciding the facts in issue [106] [108].
These appeals concern requests for extradition in the form of European Arrest Warrants (EAWs) issued, in the joined cases of HH and PH, by the Italian courts, and in the case of FK, a Polish court. The issue in all three is whether extradition would be incompatible with the rights of the Appellants children to respect for private and family life under article 8 of the European Convention on Human Rights (ECHR). HH is the mother and PH the father of three children: X aged 11, Y aged 8 and Z aged 3. HH and PH are both British citizens, although HH was born and bred in Morocco. In 2003 they were arrested in Italy and prosecuted on eight charges relating to the importation of cannabis into Italy from Morocco on various dates earlier that year. After a month HH was released under house arrest. She fled the country in July 2004. PH spent a year in custody before being conditionally discharged whereupon he also fled. They were later convicted of all charges although PH received a lesser sentence in respect of the eighth charge, that of conspiracy, because of his lesser degree of participation. HHs EAW states that she has just over nine and a half years of her prison sentence to serve. PPs states that he has eight years and four months to serve. According to calculations made by PHs legal team, he is likely in fact to have only around four and a half years to serve. Further, as primary carer for the children, were the family living in Italy he would be allowed to serve all but a few months of that at home. PH has become the primary carer for the children because HH had experienced a collapse in her mental health. There was expert evidence of the serious harm which would be suffered by the children if both their parents were extradited, in particular by Z who would be separated from her primary attachment figure The District Judge ordered extradition of both HH and PH. Their appeals were dismissed by the Administrative Court on 11 May 2011. FK and her husband are Polish and have five children aged 21, 17, 13, 8 and 3. They have lived in the United Kingdom since 2002. The two youngest children were born in this country. FK is charged with offences of dishonesty with a total equivalent value of less than 6,000. She fled Poland in 2002 and has not been tried or convicted of the alleged offences. There was expert evidence of the serious harm which would be suffered, in particular by the two youngest children, if their mother was extradited. The children had reacted badly to her arrest in 2010. FKs husband is physically impaired and was found to display signs of psychological disturbance. The Senior District Judge ordered extradition. Her appeal was dismissed by the Administrative Court on 1 January 2012. The Supreme Court unanimously allows the appeal in the case of FK. The appeal in respect of HH is unanimously dismissed. By a majority, the Court also dismisses PHs appeal, Lady Hale dissenting. Lady Hale gives the lead judgment. The application of article 8 of the ECHR in the context of extradition was considered by the Supreme Court in Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. The case concerned the effect on Mrs Norris of her husband of many years being extradited to face charges of conspiracy. Whilst not involving the rights of children, the following principles can nonetheless usefully be drawn from that case [08]. First, there may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation, but the court must still carefully examine the way in which it will interfere with family life. Secondly, there is no test of exceptionality. Third, the question is whether the interference with private and family life is outweighed by the public interest in extradition. Fourthly, there is a constant and weighty public interest in extradition: people should stand trial and serve appropriate sentences for their crimes, the United Kingdom should honour its treaty obligations towards other States, and there should be no safe haven for fugitive offenders. Fifthly, the public interest will always carry great weight but the weight does vary according to the nature and seriousness of the crimes involved. Sixthly, delay in seeking extradition may diminish the public interest element and increase the impact on family life. Lastly, as a result of the above it is likely that the public interest will outweigh the article 8 rights of the family unless the interference is exceptionally severe. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 the Supreme Court considered the potential impact of Hs deportation on the article 8 rights of her two children, British citizens who had always lived here. The United Nations Convention on the Rights of the Child required that the best interests of the child shall be a primary consideration (not, it should be noted, the primary consideration or the paramount consideration, [11]), although they can be outweighed by the cumulative effect of other considerations [15]. The approach of the court to article 8 rights is not radically different as between extradition and expulsion cases [29]. The countervailing public interest arguments may be different, in particular because extradition is an obligation owed by the requested state to the requesting state, but the balancing process involves asking the central question set out above. In all cases there must be a careful analysis under article 8 of the potential effects of extradition [31, 32]. For guidance as to procedure in respect of gathering evidence, see [82 86]. In respect of FK, her extradition would have a severe effect on her two youngest children, who would lose their primary attachment figure. That loss could have a lasting impact on their development. Their father, though well intentioned, is unlikely to be able to fill that gap [44]. The alleged offences are not trivial but are of no great gravity [45]. There is no prosecutorial discretion in Poland and there has been considerable delay which may indicate the importance attached to her offending by the Polish authorities [46]. The public interest in extraditing FK does not justify the inevitable harm that it would cause to the lives of her children [48]. In the Italian case, the extradition of both parents would have a severe impact on the children. However, having regard to the limited role of HH in the childrens lives and the central part she played in the very serious offences committed, the interference with the rights of the children is outweighed by the public interest in her extradition. On this point all members of the Court agree. As regards PH, the majority conclude that he ought to be extradited also. Lord Judge notes that in the domestic sentencing context judges have for many years considered the effects of imprisonment on the children of offenders. Unfortunately, the seriousness of the offences committed often means that innocent members of the offenders family will suffer as a result of their crimes [130, 131]. Given the nature of the crimes committed by PH, the public interest in extradition outweighs the interference with the rights of his children [135 138], a sentiment echoed by the majority: Lord Hope, [94]; Lord Brown, [96]; Lord Mance, [103]; Lord Kerr, [149]; and Lord Wilson at [170 172]. Lady Hale would have found that the current effect on the children and in particular the youngest is such that the extradition of their father in addition to their mother is not justified at present [79].
On 25 June 1999 the respondent, Ms Dunhill, was struck by a motorcycle driven by the appellant, Mr Burgin, when crossing the road. She suffered a severe head injury. In May 2002 she issued a claim against Mr Burgin for damages limited to 50,000 for her injuries. On the day of the trial, settlement negotiations took place and Ms Dunhill, after advice from her counsel and solicitor, decided to compromise her claim for 12,500 plus costs, which was embodied in a consent order put before the judge. Ms Dunhill had in fact suffered very serious injuries and this settlement represented a gross undervalue of her claim, if she could establish that Mr Burgin had been negligent. In 2006 she consulted new solicitors. A litigation friend was appointed to act on her behalf, who applied for a declaration that she had not had mental capacity at the time of the settlement and that the consent order should be set aside with directions for the future conduct of the claim. Two preliminary issues arose. The first was the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf. The second was the consequence if legal proceedings were compromised without it being recognised that one of the parties lacked that capacity, so that the requirement in Part 21.10 of the Civil Procedure Rules (CPR) that the compromise must be approved by a court was not complied with. The High Court held that capacity was to be judged by reference to the decisions which Ms Dunhill had actually been required to take in the action as drafted rather than those which she might have been required to take had the action been differently framed. On this basis she did have capacity. The Court of Appeal ruled that she had to have capacity to conduct the more complicated action which ought to have been brought and Ms Dunhill had lacked that capacity. When the case was remitted to the High Court, it held that her lack of capacity rendered the settlement void as it had not been approved by the court as required by CPR 21.10. The Supreme Court gave permission to Mr Burgin to appeal against both findings. The Supreme Court unanimously dismisses the appeals. It holds that, on the test properly to be applied, Ms Dunhill lacked the capacity to commence and conduct proceedings arising out of her claim against Mr Burgin. The consent order must be set aside and the case proceed to trial. Lady Hale gives the only judgment. Test for capacity The general approach of the common law, now enshrined in the Mental Capacity Act 2005, is that capacity is to be judged in relation to the decision or activity generally and not globally. On the issue before the court the question was Ms Dunhills capacity to conduct the proceedings. CPR 21 posits a person with a cause of action who must have the capacity to bring and conduct proceedings in respect of that cause of action. This could not depend on whether that person received good advice, bad advice or no advice at all. The test of capacity to conduct proceedings for the purpose of CPR 21 is the capacity to conduct the claim or the cause of action which the claimant in fact has rather than to conduct the claim as formulated by her lawyers, and on this test it was common ground that Ms Dunhill lacked that capacity [13 18]. The effect of incapacity It followed that Ms Dunhill should have had a litigation friend when the proceedings were begun. Although the court had power to validate steps taken without a litigation friend retrospectively, it was not just to do so in this case in relation to a settlement and consent order made without the external check on its propriety required by CPR 21.10. The consequence was that the settlement was of no effect. The terms of CPR 21 did not enable Mr Burgin to rely on the fact that he had not been on notice of Ms Dunhills incapacity [22]. A settlement of a claim was an established exception to the general position under English law in respect of a contract made by a person who lacks capacity, which is valid unless this fact was or ought to have been known [23 30]. Although there was a need for finality in litigation, and the difficulty of re opening cases such as this so long after the event was recognised, the policy underlying the CPR was clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers [32 33]. Accordingly the consent order must be set aside and the case go for trial [34].
The issue in this appeal is whether it is within the scope of parental responsibility to consent to living arrangements for a 16 or 17 year old child which would otherwise amount to a deprivation of liberty within the meaning of article 5 of the European Convention of Human Rights (ECHR), in particular where the child lacks the mental capacity to make the decision for himself. D was born in 1999. He was diagnosed with attention deficit hyperactivity disorder, Aspergers syndrome and Tourettes syndrome, and has a mild learning disability. When he was 14 he was admitted to a hospital providing mental health services, for assessment and treatment. He lived in the hospital grounds and attended a school which was integral to the unit. The external door was locked and D was accompanied whenever he left the site. The hospital trust applied to the High Court for a declaration that it was lawful for the trust to deprive D of his liberty in this way. The judge, Mr Justice Keehan, held that D was so deprived but that it was a proper exercise of parental responsibility to consent to his constant supervision and control while he was under 16. By then, with his parents agreement, and with Birmingham City Council (the Council) accommodating him under s 20 Children Act 1989, D had been discharged from hospital to a residential placement, where he was similarly under constant supervision and not allowed to leave the premises except for a planned activity. On his 16th birthday proceedings were issued in the Court of Protection for a declaration that the consent of Ds parents meant that he was not deprived of his liberty at the placement. Keehan J held that his parents could no longer consent to what would otherwise be a deprivation of liberty once D had reached 16, and that the provisions of the Mental Capacity Act 2005 (MCA) now applied. He authorised the placement, and a subsequent transfer to another similar placement, as being in Ds best interests. When D reached the age of 18 his deprivation of liberty could be authorised under the deprivation of liberty safeguards in the MCA. The Councils appeal to the Court of Appeal was allowed, on the ground that parents could consent to what would otherwise be a deprivation of liberty of a 16 or 17 year old child who lacked the capacity to decide for himself, and the MCA had no bearing on this. The Supreme Court by a majority of 3 to 2 (Lord Carnwath and Lord Lloyd Jones dissenting) allows the appeal. Lady Hale gives the main judgment. Lady Black gives an additional judgment, dealing also with the issue of secure accommodation which arose during the hearing. Lady Arden agrees with Lady Hale on the effect of article 5 in a further judgment. Lord Lloyd Jones agrees with Lord Carnwaths dissenting judgment. The case turns on the inter relationship between the concept of parental responsibility, as defined by the Children Act 1989, the common law and other relevant statutory provisions, and the obligation of the State to protect the human rights of children under the ECHR [19]. Historically, parental rights under domestic law were never absolute and became increasingly subject to the overriding consideration of the childs own welfare. The power of physical control was a dwindling right as the child acquired sufficient understanding and intelligence to make his or her own decisions the age of discretion which could be before the age of majority (known as Gillick competence after the case of Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112) [21 23]. Gillick is not directly relevant to the question of whether parental authority endures beyond the age of discretion, if the child lacks capacity to make decisions [24, 69 72]. The MCA does not override other common law and statutory provisions relating to 16 and 17 year old children, but it does indicate an appreciation of the different needs of this age group [27, 71]. Lady Black would hold that as a matter of common law, parental responsibility for a child of 16 or 17 does not extend to authorising a confinement of the child in circumstances amounting to a deprivation of liberty [88 90]. Lady Hale prefers not to express a concluded view on this question but agrees that it reinforces the conclusion reached under the ECHR [28]. Article 5 ECHR protects children who lack the capacity to make decisions for themselves from being arbitrarily deprived of their liberty. Clearly the degree of supervision to which D was subject at the placements was not normal for a child of 16 or 17 [39]. Ds living arrangements had to be compared with those of children of the same age without disabilities, and the fact that they were made in his best interests did not mean he was not deprived of his liberty [41]. Parental consent could not substitute for the subjective requirement under article 5 for valid consent to the deprivation [42]. The procedural requirements of article 5 applied (and had in fact been complied with by the court authorisations) [44]. Human rights are about the relationship between private persons and the state, and Ds deprivation of liberty in the placements was attributable to the state [46]. There is no scope for the operation of parental responsibility to authorise what would otherwise be a violation of a fundamental human right of a child [49]. The question was raised in the hearing of whether the provisions of s 25 Children Act 1989, regarding the placing of children in accommodation provided for the purpose of restricting liberty, apply to Ds living arrangements. Lady Black addresses this issue in her judgment, concluding that a narrow construction of s 25 is needed to ensure local authorities can meet the welfare needs and best interests of children who for good reasons need to be kept in confined circumstances, but that s 25 does not play a direct role in Ds case [100, 113 115]. Lord Carnwath, dissenting, would have agreed with the Court of Appeal that nothing in the MCA detracts from the common law principle of parental responsibility in respect of 16 and 17 year olds [145]. He further considers that the case law of the European Court of Human Rights on article 5 recognises that the proper exercise of parental responsibility can include consent to confinement of a child such as D [155].
Mr Williams was employed by Swansea University from 12 June 2000 until he retired for ill health reasons on 30 June 2013 at the age of 38. He suffers from Tourettes syndrome and other conditions satisfying the definition of disability under section 6 of the Equality Act 2010 (the 2010 Act). He had been an active member of the universitys pension scheme (the pension scheme) throughout his employment. He was employed by the university for 13 years. For the first 10 he worked full time and then, for the final three, he worked between 17.5 and 26 hours per week when he was fit to do so. The reduction in working hours arose from his disabilities. When he retired he was working half his full time hours (17.5 hours a week). The pension scheme provided for accrual of benefits on a final salary basis until 1 August 2009, from which time it was amended so that accrual of benefits on and after that date was on the basis of Career Average Revalued Earnings. Under the ill health early retirement provisions, Mr Williams was entitled to a lump sum and annuity, calculated on the basis of his actual salary at relevant times, whether full or part time. The amount of this part of the pension was not in dispute. He was also entitled to an enhancement, calculated on the basis of his actual salary at the date of retirement. This element was the point of dispute. Section 15(1) of the 2010 Act provides that: A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably because of something arising in consequence of Bs disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Mr Williams claimed that the calculation of the enhancement constituted discrimination within this section, as it was based upon his final part time salary, rather than his full time salary. He said this was unfavourable treatment because of something arising in consequence of his disabilities, namely his inability to work full time. The Employment Tribunal agreed with Mr Williams, but this was overturned by the Employment Appeal Tribunal and the Court of Appeal. The central issue for the Supreme Court is the meaning of the expression treats unfavourably. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the lead judgment. The Supreme Court held that in most cases, including this one, little is likely to be gained by seeking to draw distinctions between the word unfavourably in section 15 of the 2010 Act and analogous concepts such as disadvantage or detriment found in other provisions of the Act, or between an objective and a subjective/objective approach [27]. Passages in the Equality and Human Rights Commissions Code of Practice (2011) provide helpful guidance as to the relatively low threshold of disadvantage sufficient to trigger the requirement to justify under section 15 of the 2010 Act, but they do not overcome the central objection to Mr Williams case [27 28]. First, it is necessary to identify the relevant treatment to which section 15 of the 2010 Act is to be applied. In this case it was the award of a pension. There is nothing intrinsically unfavourable or disadvantageous about that. The appellants argument depends on an artificial separation between the method of calculation and the award to which it gave rise. The only basis on which Mr Williams was entitled to any award at this time was by reason of his disabilities. Had he been able to work full time, the consequence would have been, not an enhanced entitlement, but no immediate right to a pension at all. In those circumstances the award was not in any sense unfavourable, nor (applying the approach of the Code) could it reasonably have been so regarded [28].
The Appellants worked for the Respondent in factories making catalytic converters. In breach of its duty, under the health and safety regulations and at common law, the Respondent failed to ensure that the factories were properly cleaned and, as a result, the Appellants were exposed to platinum salts. This exposure led them to develop platinum salt sensitisation (immune system production of IgE antibodies). Platinum salt sensitisation is a condition producing or showing no symptoms. Further exposure to chlorinated platinum salts is likely to cause someone with platinum salt sensitisation to develop an allergic reaction with physical symptoms such as asthma, rhinitis or skin rashes. When the Appellants sensitisation was detected, the Respondent no longer permitted them to work in areas where they might be exposed to platinum salts and develop allergic symptoms. Each Appellant claims they have suffered financially because of their sensitisation to platinum salts because they had to take up a different role with the Respondent at a reduced rate of pay or because they had their employment terminated. The questions that arose in the courts below and on appeal to the Supreme Court of the United Kingdom were as follows: (1) Does platinum salt sensitisation qualify as an actionable personal injury? (2) Alternatively, can the Appellants recover damages for economic loss under an implied contractual term and/or in negligence? The Appellants lost at first instance and in the Court of Appeal. At first instance, Mr Justice Jay concluded that they had sustained no actionable personal injury and that their claim was for pure economic loss, for which they were not entitled to recover in tort. He also rejected their alternative claim in contract. The Court of Appeal upheld Mr Justice Jays ruling. The Supreme Court unanimously allows the appeal. Lady Black gives the sole judgment with which the other justices agree. Negligence and breach of statutory duty are not actionable in and of themselves. It is necessary for claimants to establish that there has been damage in the form of actionable personal injury. No decided case provides a definition of actionable personal injury, but there is some guidance as to its attributes. [11 12] Personal injury has been seen as: a physical change which makes the claimant appreciably worse off in respect of his health or capability; as including an injury sustained to a persons physical capacity of enjoying life; and as an impairment. It can also be hidden and symptomless. [27] What matters in this case is the behaviour of the IgE antibody, which is produced by an individual who has developed platinum salt sensitisation. If such an individual is exposed again to platinum salts, the IgE antibody is likely to react in a way which produces allergic symptoms. When an individual becomes sensitised, this change to their body means that they lose their capacity to work around platinum salts. [37] Respondents counsel acknowledged that if the Appellants had developed a sensitivity to something encountered in everyday life, such as sunlight, they would have sustained actionable damage because they would not be able to carry on with their ordinary life. The Appellants ordinary lives involved doing jobs of a type which, by virtue of their sensitisation, they can no longer do. This cannot be distinguished from the person who developed a sensitivity to sunlight. [39] The physiological changes to the Appellants bodies are undoubtedly harmful. Cartledge v Jopling establishes that the absence of symptoms does not prevent a condition amounting to actionable personal injury. What has happened to the claimants is that their bodily capacity for work has been impaired and they are therefore significantly worse off. [40] Once the sensitisation is identified as an actionable injury in its own right, the Respondents argument that the Appellants are claiming only for their lost earnings and therefore for pure economic loss also falls away. [44] This case is distinguishable from Rothwell v Chemical and Insulating Co Ltd. In that case, the pleural plaques the claimants developed were nothing more than a symptomless marker of exposure to asbestos dust and would not lead to or contribute to any condition which would produce symptoms, even with further exposure to asbestos dust. In this case, the Appellants sensitisation carries the risk of an allergic reaction in the event of further exposure to platinum salts and they must change their lives to avoid such exposure. [47] In these circumstances, it is unnecessary to consider the Appellants alternative argument that they should be able to recover for pure financial loss. [49]
The appeal concerns an estate agent, Mr Devani, who claims that commission became payable to him by Mr Wells, the vendor of a number flats, on the completion of the sale of the flats to a purchaser Mr Devani had introduced to Mr Wells. In 2007 the vendor, Mr Wells, completed the development of a block of flats. By the beginning of 2008 seven of the flats were still on the market. On 29 January 2008 a neighbour of Mr Wells, Mr Nicholson, sent an email to Mr Devani, who was trading as an estate agent, informing him of the unsold flats. Later that day Mr Devani acknowledged receipt of Mr Nicholsons email and made a telephone call to Mr Wells. Both parties at trial gave different accounts of this telephone conversation. It was Mr Devanis evidence that he told Mr Wells that he was an estate agent and that his commission terms would be 2% plus VAT. Mr Wells maintained that Mr Devani made no mention of any commission. Mr Devani subsequently made contact with Newlon Housing Trust who agreed to purchase the remaining flats for 2.1m. The transaction proceeded to completion and Mr Devani claimed his commission. Mr Wells refused to pay, and so Mr Devani issued proceedings. In the County Court at Central London the judge, His Honour Judge Moloney QC, held that there was a binding contract between the parties. However, as Mr Devani had only submitted his written terms to Mr Wells after he had made the introduction to the Newlon Housing Trust, the final award was subject to a one third deduction to reflect Mr Devanis failure to comply with the requirements of the Estate Agents Act 1979 (the Act). On appeal, the Court of Appeal by a majority, allowed Mr Wells appeal on the issue of whether there was ever a binding contract and unanimously dismissed his appeal in respect of section 18 of the Act. There are two issues for the Supreme Court: (i) the first, raised on appeal by Mr Devani, is whether the agreement was complete and enforceable despite there being no express identification of the event which would trigger the obligation to pay the commission. (ii) The second issue, raised on a cross appeal by Mr Wells, is whether, by reason of Mr Devanis failure to comply with the requirements imposed by section 18 of the Act, the trial judge ought to have dismissed the claim or discharged Mr Wells liability to pay the commission. The Supreme Court unanimously allows Mr Devanis appeal and dismisses Mr Wells cross appeal. Lord Kitchin gives the lead judgment (with whom Lord Wilson, Lord Sumption and Lord Carnwath agree). Lord Briggs gives a concurring judgment. (i) Was there a binding contract? The question is whether, objectively assessed, the parties by their words and their conduct intended to create a legally binding relationship [17]. It may be the case that the words and conduct relied upon are so vague that the court is unable to identify the terms on which the parties have reached agreement. However, the courts are reluctant to find an agreement is too vague or uncertain to be enforced where it is found that the parties had the intention of being contractually bound and have acted on their agreement [18]. In this case it would naturally be understood that payment would become due on completion and made from the proceeds of sale [19]. In short, Mr Devani and Mr Wells agreed that if Mr Devani found a purchaser for the flats he would be paid his commission. Mr Wells found the Newlon Housing Trust and it became the purchaser on completion of the transaction. At that point, Mr Devani became entitled to his commission and it was payable from the proceeds of sale [19]. (ii) Implied term It was therefore unnecessary for the judge to imply a term into the agreement between Mr Devani and Mr Wells. However, had it been necessary, there would be no hesitation in holding that it was an implied term of the agreement that payment would fall due on completion of the purchase of the property by a person whom Mr Devani had introduced [27]. The obligation to make payment of the commission on completion was required to give the agreement business efficacy and would not go beyond what was necessary for that purpose [29]. There will be cases where an agreement is so vague and uncertain that it cannot be enforced [33]. However, each case must be considered in light of its own particular circumstances [35]. (iii) The Estate Agents Act 1979 Section 18(1) of the Act provides that before any person enters into a contract, the agent must give the client certain information [37 39]. In this case, Mr Devani failed to comply with his section 18 obligation because, in particular, Mr Devani did not at the outset, or as soon as reasonably practicable thereafter, expressly inform Mr Wells of the event which would trigger his entitlement to commission; nor did he provide any of that information in writing [43]. However, in the circumstances of this case, Mr Devanis culpability was not so great as to justify dismissal of his application, and the trial judge made no material error in so deciding [54]. As to whether once the Court of Appeal found that the judge had made errors in the course of his assessment under section 18(6), it ought to have carried out the evaluation required by that provision afresh, the law does not require such an inflexible approach where, as here, the errors were of a minor kind and cannot have affected the conclusion to which he came. In these circumstances it is neither necessary nor appropriate for the appellate court to set that decision aside and embark on the evaluative exercise for itself [55 56]. Lord Briggs agrees with Lord Kitchin and with his reasons [58]. Lord Briggs adds that there are occasions, where the context in which the words are used tells you as much, or even more, about the essential terms of the bargain than the words themselves [59]. So it is with the contract in the present case [60]. Lord Briggs agrees that, like Lord Kitchin, he would have been prepared to find that a sufficiently certain and complete contract had been concluded between them, rather than just by the implication of terms [61]. Finally, Lord Briggs adds that none of these observations about the common law in any way under rate the importance of the statutory duty in section 18 of the Act. On the contrary, it is precisely because the common law will recognise an enforceable liability to pay as arising from the briefest and most informal exchange between the parties that statute protects consumers by imposing a more rigorous discipline upon their professional counterparties [63].
This appeal is about the application of anti discrimination law to charities, where they are established to provide benefits (in this case, social housing) for particular groups which are the subject of their charitable objectives. The relevant anti discrimination laws are contained in the Equality Act 2010 and Council Directive 2000/43/EC of 29 June 2000 (the Race Directive). The charitable objective of Agudas Israel Housing Association Ltd (the Housing Charity) is to make social housing available primarily for members of the Orthodox Jewish community in Hackney, in particular the Haredi community. It makes properties available via an online portal operated by Hackney London Borough Council (the Council), which is open to applicants for social housing whom the Council has identified as having a priority need. The Council cannot compel the Housing Charity to take tenants who do not fall within scope of its charitable objective and its selection criteria. This, combined with a significant surplus of need for social housing on the part of the Orthodox Jewish community, means that in practice the Council only nominates and the Housing Charity only accepts members of that community for the Housing Charitys properties. The social housing provided by the Housing Charity makes up less than 1% of the social housing available in Hackney. The principal appellant (the appellant) is a single mother with four small children, two of whom have autism. The Council identified the appellant as having a priority need for social housing in a larger property, and she has now been housed by the Council in such a property. However, she had to wait longer to be allocated suitable housing as she is not a member of the Orthodox Jewish community and so larger properties owned by the Housing Charity which became vacant were not available to her. She issued proceedings against the Council and the Housing Charity, alleging that she had thereby suffered unlawful direct discrimination on grounds of race or religion contrary to the Equality Act 2010. The Divisional Court dismissed the claim and the Court of Appeal dismissed her appeal. The appellant now appeals to this Court. She was given permission to add to her claim based on the Equality Act 2010 a new claim that the allocation policy of the Housing Charity contravened the Race Directive by unlawfully discriminating against her on the grounds of race or ethnic origin. The appeal turns on whether the Housing Charity acted unlawfully or not in restricting access to its stock of social housing. The Supreme Court unanimously dismisses the appeal. Lord Sales gives the main judgment (with which Lord Reed, Lord Kerr and Lord Kitchen agree). Lady Arden gives a concurring judgment. Equality Act 2010 The Equality Act 2010 makes it unlawful to discriminate directly against any person on the basis of certain characteristics, known as protected characteristics. These include race and religion or belief [17] [18]. However, the Act sets out exemptions where certain actions will not be considered as unlawful direct discrimination. Section 158 provides one such exemption where positive action addresses in a proportionate manner needs or disadvantages connected to a protected characteristic [19]. Section 193 sets out two further exemptions. Section 193(2)(a) permits charities to restrict benefits to those with a protected characteristic if that restriction is a proportionate means of achieving a legitimate aim and section 193(2)(b) permits charities to restrict benefits to those who share a protected characteristic if the restriction seeks to prevent or compensate for a disadvantage linked to the characteristic [21]. Lord Sales upholds the lower courts findings that the Housing Charitys allocation policy is proportionate and lawful under sections 158 and 193(2)(a) of the Equality Act 2010. A proportionality assessment first requires the identification of a legitimate aim and, secondly, consideration of whether the measures taken to promote that aim are proportionate, having regard to other interests at stake [65]. The dispute in this case centres on what constitutes a legitimate aim [60] [72]. As found by the Divisional Court and the Court of Appeal, the legitimate aims here include the minimisation of disadvantages which are connected to the Haredi communitys religious identity and counteracting discrimination which they suffer, including in the private housing market, and the fulfilment of relevant needs which are particular to that community [66]. The Housing Charity was entitled to adopt a clear and strict rule about who could and could not apply for its social housing, which meant that it was made available just for members of the Orthodox Jewish community, to ensure that its charitable activities were focused on that community, so that its activities did in fact fulfil its charitable objective to alleviate the problems of that community [76] [87]. Lord Sales holds that the Divisional Court correctly considered the Housing Charitys allocation policy in the light of the applicable legal framework and, accordingly, was entitled to find it to be proportionate and lawful under these statutory exemptions. Lord Sales makes his own assessment of proportionality [76] [87], which is in agreement with that of the Divisional Court [73]. Lord Sales holds that, in any event, the Court of Appeal was right to say that the Divisional Courts finding of proportionality could only be set aside if it had misdirected itself or reached a decision which was wrong. Applying this approach, he holds that the Divisional Court had been entitled to make this finding, with the result that its decision should be upheld on appeal [74] [75]. In her concurring judgment, Lady Arden emphasises that an appellate court should generally not make its own assessment of proportionality in such circumstances [120], and with this caveat she agrees with the judgment of Lord Sales [121]. As regards the exemption in section 193(2)(b), the Court dismisses the argument for the appellants that the provision is subject to an implied proportionality requirement. There is no sound basis on which such a requirement could be read into the provision [97]. First, even on the assumption that the case is within the ambit of Article 8 of the European Convention on Human Rights (the ECHR), on the right to respect for private and family life, so that Article 14 of the ECHR (non discrimination) is applicable, any proportionality requirement inherent in that provision is satisfied by the structure of section 193 itself; Parliament was entitled to create a clear rule applicable to charities in the interests of conserving their resources for use in fulfilling their charitable objectives, having regard, among other things, to the regulation of charities under the Charities Act 2011 to ensure they operate in the public interest and the wide margin of appreciation accorded to Parliament, as the body with democratic authority, in setting social and economic policy, including encouragement for giving to charity [97] [110]. Secondly, on the same assumption that the case falls within the ambit of Article 8 of the ECHR, even if the structure of section 193 itself did not satisfy any relevant proportionality standard, the drafting of the provision and the policy underlying it are so clear that it would not be possible to read into it an additional proportionality requirement [111] [115]. In the circumstances, therefore, it is not necessary to resolve the question whether the case falls within the ambit of Article 8 of the ECHR and the Court prefers to leave that issue open [96, 116]. Section 193(2)(b) should be applied according to its express terms. It is common ground that, on this basis, the requirements of section 193(2)(b) are satisfied in this case [50]. Even if a proportionality requirement could be read into the provision, it follows from the decision regarding proportionality in relation to section 158 and section 193(2)(a) that it would have been satisfied [55, 88]. The Race Directive The Race Directive provides that discrimination on grounds of race or ethnic origin must be unlawful, particularly in relation to housing [89]. The Court finds that the Housing Charity is not in contravention of this directive for the simple reason that its allocation policy differentiates on the basis of religious observance and not race or ethnic origin [89] [90].
The case concerns the proper approach to deciding who has been responsible for harming a child in proceedings taken to protect that child, and others in the family, from harm and the consequences of such a decision. At a fact finding hearing, the judge decided that either the mother or the father had injured their baby boy. He had therefore suffered significant harm attributable to a lack of reasonable parental care, as required by section 31(2) of the Children Act 1989. The judge did not ask herself which parent was responsible, although she expressed the view that it was 60% likely that the father had injured the child and 40% likely that the mother had. The mother and father were separated and the father played no part in the proceedings. At the later welfare hearing, the judge approved the placement of the child for adoption, together with his younger brother, who had been born during the proceedings and placed with foster parents soon after birth. The mother, who had maintained contact and developed a good relationship with the children, appealed. The Supreme Court unanimously allows the appeal and remits the case for a complete rehearing before a different judge. The judgment of the Court was given by Lady Hale. [48] [50] It is now settled law that the standard of proof in care proceedings is the balance of probabilities, as set out in Re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 and confirmed in Re B (Children) (Care Proceedings: Standard of Proof) [2008] UKHL 35, [2009] AC 11. [8] [13] It is clear from the observations of Lord Hoffman and Lady Hale in Re B that the same approach is to be applied to the identification of perpetrators as to any other factual issue in the case. It was incorrect to apply a heightened standard consistent with the gravity of the allegations. [34] There is no obligation for a judge to decide who has caused the harm to the child, as long as that harm is attributable to someone having care of the child, although he should do so if the evidence warrants this. In a split hearing, there may be particular benefits of making such a finding, mainly because it will promote clarity in identifying the future risks to the child and the strategies necessary to protect him from them. [35] [38] Where a specific perpetrator cannot be identified, a judge should still, where possible, identify a pool of possible perpetrators. The test for doing so is the likelihood or real possibility that a particular person was involved. A person does not have to prove their innocence to be left out of account[40] [43] Where a judge has been unable to identify a perpetrator, it is positively unhelpful to have the sort of indication of percentages that the judge gave in this case. [44] If the judge is able to identify a perpetrator on the balance of probabilities, all the evidence accepted by the judge which is relevant to identifying the risks to the child remains relevant to deciding where his best interests will lie. The court must also be alive to the possibility that the finding who the perpetrator was is wrong and be prepared to revise it in the light of later evidence. [46] [47] In the circumstances of this case the judge had misdirected herself on the standard of proof in the fact finding hearing. In those circumstances the case ought to be remitted in whole to a different judge who can decide the matter on the right basis. [48] The decision to remove the second child, who had never been harmed, must also be remitted for rehearing. The judge had held that there was a risk of future harm to him because there was a real possibility that the mother had injured the older child. It was held in Re H that this is not the correct approach: predictions of future harm must be based on proven findings of fact. [49]
This case concerns two little girls whom the court refers to as Livi and Milly so as to protect their anonymity. Livi is seven and Milly is four. They were born in Norway to a British mother and a Norwegian father, who married shortly after Livis birth. They had lived all of their lives in Norway until September last year when their mother brought them to England with a view to staying here permanently. The father was not asked and did not consent to their removal from Norway. The mother has an older daughter, Tyler, who is nearly 17 and also lived with the family in Norway, but left Norway for England shortly before her mother. After the removal of Livi and Milly, the father applied to the Norwegian central authority under the Hague Convention on the Civil Aspects of Child Abduction 1980 (the Hague Convention) for the children to be returned to Norway. Article 12 of the Hague Convention requires a requested state to return a child forthwith to her country of habitual residence if she has been wrongfully removed in breach of rights of custody. Article 13 provides three exceptions, of which this case is concerned with the second: the requested state is not bound to return the child if the person, institution or other body which opposes its return establishes that (a) ; or (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation . (emphasis supplied) The mother, with Tylers support, argues that this exception applies. She makes allegations against the father which, if true, amount to a classic case of serious psychological abuse. She recounts incidents of physical violence towards other people, property and the ill treatment of the family pets. She alleges that the father was domineering and controlling and that she and the children were frightened of him. There is also psychiatric evidence that the mother is suffering from a mental disorder which will deteriorate if she has to return with the children to Norway unless certain protective measures are in place. She is and always has been the childrens primary carer. Thus she argues that that there is a grave risk that the children would be placed in an intolerable situation if returned to Norway. She also argues that article 13(b) should be interpreted in the light of article 3.1 of the United Nations Convention on the Rights of the Child, which requires that in all actions concerning children the best interests of the child shall be a primary consideration. The father denies the mothers allegations, although he accepts that he can get angry and that he did kill a family cat and Tylers rabbit. He has made arrangements and given undertakings to reassure the mother pending any order in the Norwegian courts: in particular he would vacate the family home and not go within 500 metres of it; he would pay household costs and money for child support; and he would not remove the children from the mothers care. The trial judge in England decided that it was overwhelmingly in the childrens best interests for them to return to Norway for their futures to be decided there. The Court of Appeal rejected the mothers appeal. Both the Court of Appeal and the Supreme Court agreed to hear the case principally because of concerns about the impact of the decision of the Grand Chamber of the European Court of Human Rights in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122. The Supreme Court unanimously dismisses the mothers appeal. The best interests of the child are at the forefront of the whole process under the Hague Convention. The aim is to serve the interests of children generally, by deterring wrongful abduction and restoring abducted children to their home country, but also to serve the interests of the individual child by making certain assumptions about what will be best for her [14]. These assumptions can be rebutted in a limited range of circumstances, all inspired by the best interests of that child [16]. The case law of the European Court of Human Rights indicates that the right to respect for family life in article 8 of the European Convention must be interpreted in the light of the Hague Convention and the UN Convention on the Rights of the Child. The best interests of children have two aspects: to be reunited with their parents as soon as possible so that one parent does not gain an unfair advantage over the other through the passage of time; and to be brought up in a sound environment in which they are not at risk of harm [52]. In Neulinger and Shuruk v Switzerland, the Grand Chamber held that the return of a child from Switzerland to Israel would breach article 8 of the European Convention on Human Rights. In doing so, the Grand Chamber gave the appearance of turning the swift, summary decision making procedure which is envisaged by the Hague Convention into a full blown examination of the childs future in the requested state, the avoidance of which was the very object of the Hague Convention [22]. However, the President of the Strasbourg court has recently acknowledged extra judicially that the logic of the Hague Convention is that a child who has been abducted should be returned to the jurisdiction best placed to protect his interests and welfare, and it is only there that his situation should be reviewed in full[25]. Hence Neulinger does not require a departure from the normal process, provided that the decision is not arbitrary or mechanical. The exceptions to the obligation to return are by their nature restricted in scope and should be applied without extra interpretation or gloss. Violence and abuse between parents may constitute a grave risk to the children. But where there are disputed allegations which can neither be tried nor objectively verified, the focus of the inquiry is bound to be on the sufficiency of any protective measures which can be put in place to reduce the risk. The clearer the need for protection, the more effective the measures will have to be [52]. In this case, the trial judge was satisfied that medical treatment would be available for the mother and that there were legal remedies to protect the children should they be needed. It is not the task of an appellate court to disagree with the trial judges assessment [49]. The Supreme Court urges the Hague Conference to consider whether machinery can be put in place whereby, when the courts of the requested state identify specific protective measures as necessary if the Article 13(b) exception is to be rejected, those measures can become enforceable in the requesting state [37].
Cleveland Meat Company Ltd (CMC) bought a bull at auction. It was passed fit for slaughter by the Official Veterinarian (OV) stationed at its slaughterhouse. After a post mortem inspection of the carcass, and discussion with a Meat Hygiene Inspector, the OV declared the meat unfit for human consumption. It did not therefore acquire a health mark. CMC took the advice of another veterinarian surgeon and challenged the OVs opinion. It contended that in the event of a dispute, and of its refusal to surrender the carcass voluntarily, the OV would have to seize it under s 9 of the Food Safety Act 1990 (the 1990 Act) and take it before a Justice of the Peace to determine whether or not it should be condemned. The respondent (the FSA) did not accept that it needed to use this procedure. It maintained that the carcass should be disposed of as an animal by product and served a notice for such disposal. CMC, together with Association of Independent Meat Suppliers, issued a claim for judicial review to challenge the FSAs assertion that it did not have to use the s 9 procedure. They claimed in the alternative that it was incumbent on the UK to provide some means for challenging the decisions of an OV in such cases. The claim failed in the High Court and Court of Appeal. Before the Supreme Court there were three main issues. The first was a matter of domestic law: whether the s 9 procedure was available or mandatory in these circumstances. The second issue was whether the use of the s 9 procedure was compatible with the food safety regime laid down by European Union law, specifically Regulations (EC) 178/2002, 852/2004, 853/2004, 854/2004, 882/2004, and 1069/2009. The third issue was whether Regulation 882/2004 mandates an appeal procedure and, if so, whether such an appeal should allow a challenge to the full factual merits of the OVs decision or whether the limited scope of challenge in a judicial review claim is sufficient to comply with the regulations requirements. The Supreme Court decides to refer two questions to the Court of Justice of the European Union. The terms of the reference are set out by Lady Hale and Lord Sales in their joint judgment, with whom Lord Hodge, Lady Black and Lord Lloyd Jones agree. For the purposes of this reference, the Court of Justice of the European Union is asked to assume that the claimant appellants interpretation of section 9 of the 1990 Act is correct, and that a Justice of the Peace has power to give a ruling which may result in an award of compensation if he considers that a health mark ought to have been applied to a carcass. In order to determine this appeal, this Court refers the following questions to the Court of Justice of the European Union [22]: (1) Do Regulations (EC) Nos 854 and 882 preclude a procedure whereby pursuant to section 9 of the 1990 Act a Justice of the Peace decides on the merits of the case and on the basis of the evidence of experts called by each side whether a carcass fails to comply with food safety requirements? (2) Does Regulation (EC) No 882 mandate a right of appeal in relation to a decision of an OV under article 5.2 of Regulation (EC) No 854 that the meat of a carcass was unfit for human consumption and, if it does, what approach should be applied in reviewing the merits of the decision taken by the OV on an appeal in such a case?
The issue in these appeals is whether the mistreatment of migrant domestic workers who are vulnerable because of their precarious immigration status amounts to direct or indirect race discrimination. The appellant in the first appeal, Ms Taiwo, is a Nigerian national who entered the United Kingdom lawfully in February 2010 to work for the respondents. She had a migrant domestic workers visa obtained for her on the false basis that she had previously been employed by Mr Olaigbes parents in Nigeria. Ms Taiwos passport was taken from her and she was expected to work during most of her waking hours for minimal wages. She was starved and subject to physical and mental abuse. She escaped and brought successful claims in the employment tribunal for the failure to pay her the minimum wage, for unlawful deductions from wages, for failure to provide rest periods and to give her written terms of employment. She was awarded compensation in respect of these claims but her claim for race discrimination, which would have entitled her to damages for the fear and distress she suffered, was dismissed. The tribunal found that her mistreatment was because she was a vulnerable migrant worker who was reliant on the respondents for her continued employment and residence in the UK, not because she was Nigerian. Ms Onu, the appellant in the second appeal, suffered a similar experience. She had worked for her employers in Nigeria and came to the UK on a domestic workers visa. She worked on average for 84 hours a week, without the required rest periods, nor was she paid the minimum wage and she was threatened and abused by her employers. She brought similar claims in the employment tribunal, which all succeeded including her claim for direct race discrimination. The latter finding was reversed by the Employment Appeal Tribunal. The Court of Appeal heard Ms Taiwo and Ms Onus appeals together and upheld the dismissal of their discrimination claims on the grounds that immigration status was not to be equated with nationality for the purpose of the Equality Act 2010. Ms Taiwo appealed (and Ms Onu applied for permission to appeal) to the Supreme Court. The Supreme Court unanimously grants permission to appeal to Ms Onu but dismisses both Ms Taiwo and Ms Onus appeals. It holds that neither appellant has suffered race discrimination because the reason for their abuse by the respondents was not nationality but their vulnerability as a particular kind of migrant worker. Lady Hale gives the only substantive judgment. Under s 13(1) Equality Act 2010 (EA) a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Race is a protected characteristic and includes colour, nationality and ethnic origins [13]. There is no doubt in these cases that the appellants were treated disgracefully by their employers in a way which employees who did not share the appellants vulnerable immigration status would not have been treated. The question is whether discrimination on grounds of immigration status amounts to discrimination on grounds of nationality [14]. Generally speaking employers are free to choose whom to employ, subject to the limits under the EA (and earlier legislation) to protect specified groups, who have historically suffered discrimination, from being shut out of access to employment for irrelevant reasons which they can do nothing about [21]. Parliament could have chosen to include immigration status in the list of protected characteristics but it did not do so [22]. Immigration status is a function of nationality in that non British nationals (other than Irish citizens) are subject to immigration control, but there is a wide variety of immigration statuses [23]. The appellants were particularly vulnerable to the abuse they suffered because of the terms of their domestic workers visas which meant they were dependent on their current employers for their continued right to live and work in the UK [24]. But there are many non British nationals living and working in the UK who do not share this vulnerability and would not have been abused in the same way. The treatment of the appellants had nothing to do with the fact they were Nigerian and they were not the subject of direct discrimination [26]. This was not a case of indirect discrimination. There was no provision, criterion or practice as defined in s 19 EA applied by the respondents to all their employees regardless of their immigration status [32]. The present law does not therefore offer redress for all the harm suffered by the appellants. Parliament might wish to consider extending the remedy available under the Modern Slavery Act 2015 to give employment tribunals jurisdiction to grant compensation for ill treatment meted out to workers [34].
Traders who wish to appeal against assessments to Value Added Tax (VAT) in the United Kingdom are required, by section 84 of the Value Added Tax Act 1994, first to pay or deposit the tax notified by the assessment with HMRC, unless they can demonstrate that to do so would cause them to suffer hardship. This pay first requirement is a feature of the procedural regime for appealing assessments to a number of other types of tax including Insurance Premium Tax and Landfill Tax. It is not a condition for appealing assessments to Income Tax, Capital Gains Tax, Corporation Tax or Stamp Duty Land Tax. VAT is regulated by the EU VAT Directive 2016/112. An appeal against a VAT assessment is therefore a claim based on EU law. The appellant, Totel Ltd (Totel), seeks to appeal a number of assessments to VAT but has been unable to demonstrate that a requirement to pay or deposit the tax in dispute would cause the company hardship. Totel claims the requirement to pay or deposit the disputed tax, as a pre condition for an appeal, offends against the EU law principle of equivalence. Totel first raised its challenge based upon the principle of equivalence when it successfully sought permission to appeal to the Court of Appeal. The Court of Appeal dismissed Totels appeal. The Supreme Court unanimously dismisses the appeal. Lord Briggs gives the lead judgment with which the other Justices agree. The principle of equivalence requires that the procedural rules of member states applicable to claims based on EU law are no less favourable than those governing similar domestic claims [3]. The principle of equivalence and its qualifying no most favourable treatment proviso (the Proviso) are creations of the Court of Justice of the European Union (CJEU) jurisprudence and take effect within the general context that it is for each member state to establish its own national procedures for the vindication of rights conferred by EU law [6]. The principle of equivalence requires a true comparator for it to be able to operate at all. Identification of one or more true comparators is therefore the essential first step [7]. Whether any proposed domestic claim is a true comparator with an EU law claim is context specific [9]. The domestic court must focus on the purpose and essential characteristics of allegedly similar claims [10]. Of particular importance is the specific procedural provision that is alleged to constitute less favourable treatment of the EU law claim. Differences in procedural rules are frequently attributable to differences in the underlying claim [11]. It is not necessary or appropriate to treat VAT claims as unique with no possibility of having a true comparator. Such a general rule would run counter to the context specific basis which underpins the principle of equivalence. In Reemsta Cigarettenfabriken GmbH v Ministero delle Finanze (Case C 35/05) [2007] ECR1 2452, the CJEU considered equivalence as a mere fringe issue and, had Reemsta actually established such a rule, this would have provided a simple solution for the question before the CJEU in the Littlewoods Retail Ltd v Revenue & Customs Comrs (Case C 591/10) [2012] STC 1714 [18 21]. Applying the context specific analysis, the Court of Appeal was correct to conclude that none of the domestic taxes constituted true comparators with VAT. A trader seeking to appeal a VAT assessment is typically in a significantly different position from a taxpayer seeking to appeal an assessment to any of those other taxes [22]. VATs economic burden falls upon the consumer, but it is collected by the trader from the consumer and accounted for by the trader to HMRC. Taxpayers appealing Income Tax, for example, are being required to pay something of which the economic burden falls on them and which they have not collected from anyone else. Therefore, it is no less than appropriate that traders assessed to VAT should be required to pay or deposit the tax in dispute, which they have or should have collected [23]. This logical connection is sufficient to justify the conclusion that VAT is different to those other taxes in this context regardless of the actual legislative reason for the imposition of the pay first requirement [24]. Lord Briggs considered what the position would have been had any of Income Tax, Capital Gains Tax or Stamp Duty Land Tax been a true comparator for the purposes of the principle of equivalence. The Proviso is not a free standing rule but part of the expression of the principle of equivalence and is directed to the standard of treatment which that principle imposes. Procedures should be broadly as favourable as that available for truly comparable domestic claims, rather than the very best available [45]. The Provisos purpose is to prevent member states from discriminating against claims based upon EU law by affording them inferior procedural treatment than comparable domestic claims [46]. While reaching no final decision on this point, Lord Briggs concluded that the Court of Appeals conclusion on this issue is therefore broadly correct [47].
The Appellant was arrested for driving with excess alcohol on 14 October 2008 and pleaded guilty to that offence on 5 November 2008. He was fined 50 and disqualified from driving for 12 months. A conviction for driving with excess alcohol is spent after five years. He has been an adult throughout. When the Appellant was arrested, the Police Service of Northern Ireland (PSNI) lawfully obtained from him: (i) fingerprints; (ii) a photograph; and (iii) a non intimate DNA sample by buccal swab. The fingerprints are held on a UK wide database and the photograph is held on a PSNI database to which only authorised PSNI personnel have access. A DNA profile was taken from the DNA sample. A DNA profile is digitised information in the form of a numerical sequence representing a very small part of the persons DNA. It indicates a persons gender and provides a means of identification. The profile is held on a Forensic Science Northern Ireland database. At present, the statutory position in Northern Ireland is that the PSNI may retain fingerprints, photographs, DNA samples and DNA profiles for an indefinite period after they have fulfilled the purpose for which they were taken, but they may only be used for specified policing purposes. The Criminal Justice Act (Northern Ireland) 2013, when it comes into force, will require the PSNI to destroy all DNA samples as soon as a DNA profile has been taken or within six months of the taking of the DNA sample, and will otherwise bring the position broadly into line with the current legislation applicable in England and Wales. The PSNI intends to destroy the Appellants DNA sample when that Act comes into force. This appeal therefore does not concern the retention of the DNA sample. The PSNI changed its practice following the decision in S and Marper v United Kingdom (2009) 48 EHHR 50 (S and Marper). The European Court of Human Rights (ECtHR) held that the UKs policy of indefinite retention of individuals fingerprints, cellular samples and DNA profiles after proceedings against them had led to acquittal or discontinuance was a disproportionate interference with their right to respect for private life under article 8 of the European Convention on Human Rights (ECHR). The PSNI now retains indefinitely biometric data only of those convicted of crimes. The Appellant says that the PSNIs retention of his data breaches article 8 ECHR. The Respondent accepts that there is an interference with the Appellants right to respect for his private life under article 8(1) and the Appellant accepts that the interference is in accordance with law and pursues a legitimate aim under article 8(2). The sole question is therefore whether the interference was proportionate. The Divisional Court held that it was. The Appellant appeals to the Supreme Court. The Supreme Court dismisses the appeal by a majority of 4:1. Lord Clarke, with whom Lord Neuberger, Lady Hale and Lord Sumption agree, gives the leading judgment. Lord Kerr dissents. The majority considers that in S and Marper the ECtHR was concerned only with the position of suspected but non convicted persons, not convicted persons; its criticism of the UKs blanket and indiscriminate data retention policy should be read with this focus in mind [30 32]. He recognises that it does not follow that the practice of Northern Ireland (and the UK) in relation to convicted persons is automatically compliant with article 8 and that the policy as it applies to convicted persons could be described as a blanket policy [33]. However, the policy is in fact proportionate: The ECtHR did recognise in S and Marper the importance of the use of DNA material in the solving of crime and that the interference in question is low [33]. It is also important to note that the present scheme is concerned only with the retention of the DNA profile and applies only to adults, whereas the scheme criticised by the ECtHR in S and Marper provided for the retention of the full sample and did not distinguish between children and adults [35]. Factors such as the threshold of offence, whether retention is permitted once a conviction has been spent and whether retention is permitted indefinitely or is subject to a time limit are potentially relevant but not decisive in the proportionality analysis [34, 36 39]. The potential benefit to the public of retaining the DNA profiles of those who are convicted is considerable and outweighs the interference with the right of the individual [40]. The retention may even benefit the individual by establishing that they did not commit an offence [41]. In S and Marper the ECtHR placed some reliance on the fact that the UK was almost alone among ECHR member states in indefinitely retaining biometric data of non convicted persons. In the case of convicted persons there is a much broader range of approaches, which broadens the margin of appreciation accorded to individual states [42 44]. Adopting a blanket measure is legitimate in some circumstances and it was legitimate here [45]. The retention policy is therefore within the UKs margin of appreciation, and the court has to decide for itself whether the policy is proportionate. Essentially on the basis of the factors already discussed and for the reasons given by the Divisional Court, the majority concludes that it is and dismisses the appeal [46 49]. Lord Kerr would have allowed the appeal. He explains that the critical questions on proportionality in this case are: (i) whether there is a rational connection between the legislative objective and the policy; and (ii) whether the policy goes no further than is necessary to fulfil the objective [61]. As to (i), it is important to recognise that the objective is not the creation of as large a DNA database as possible, but the actual detection of crime and identification of future offenders. There is a striking lack of hard evidence in this case to support the assumption that all persons who commit any recordable offence are potential suspects in any future crime [62 68]. As to (ii), it is clear in Strasbourg, CJEU and domestic case law that the question is whether a less intrusive measure could have been used without unacceptably compromising the attainment of the objective [73 77]. A far more nuanced and more sensibly targeted policy could easily be devised. In those circumstances it is impossible to say that the policy in its present form is the least intrusive means of achieving its stated aim [83 85]. As to whether a fair balance has been struck, the stigmatising application of the indefinite retention policy even to those whose convictions are spent frustrates the purpose of rehabilitation: this is an issue of first importance. It should not be relegated to the status of a single factor of no especial significance [90 96]. A domestic court should not be slow to condemn an ill thought out policy which does not address the essential issues of proportionality simply because a broad measure of discretion is available to an individual state [99 101].
The appellant is 22 years old and, prior to these proceedings, had no convictions. He was diagnosed with Autism Spectrum Disorder as a child and, in 2018, he was living with his mother. He began purchasing quantities of chemicals online. According to his account, this was because he had an obsessive interest in military matters, including bomb disposal. He claimed that he had acquired the chemicals because he wished to understand how explosives worked and to experiment with them. A search warrant was executed at the appellants home on 24 April 2018, where it was found that he had managed to make a small quantity (about 10 grams or less) of a sensitive primary explosive, Hexamethylene Triperoxide Diamine (HMTD). He also possessed manuals for making explosives, notes on making HMTD and a video on his mobile phone demonstrating the making of HMTD. When interviewed by the police, the appellant admitted his actions in acquiring chemicals and making explosives, and gave the explanation above. He was subsequently charged with certain offences, including two counts under section 4(1) of the Explosive Substances Act 1883 (1883 Act). As clarified in the course of the appeal, these counts are that the appellant knowingly had HMTD in his possession or under his control, in such circumstances as to give rise to a reasonable suspicion that he did not possess or control it for a lawful object. There is a defence if the accused can show that in fact he had the explosive substance in his possession or control for a lawful object which he identifies. In his defence statement, the appellant maintained that he had made the HMTD for a lawful object, namely interest, education and experimentation. The appellant said that he had made other explosives and used them to create small explosions in the garden of his house without causing harm, and he intended to do the same with the HMTD. At a preparatory hearing in the Crown Court at Birmingham, HH Judge Wall QC held that he was bound by Court of Appeal authority, R v Riding [2009] EWCA Crim 892, to find that experimentation and self education did not amount to a lawful object for the purpose of section 4(1). Accordingly, the judge ruled in advance of trial that the appellants proposed defence was bad in law. The appellant appealed unsuccessfully to the Court of Appeal, who considered themselves similarly bound. The court certified the following point of law of general public importance: for the purposes of section 4(1) of the 1883 Act, can personal experimentation or own private education, absent some ulterior unlawful purpose, be regarded as a lawful object? By a majority, the Supreme Court allows the appeal. Lord Sales gives the majority judgment, with which Lord Reed and Lord Carnwath agree. Lord Lloyd Jones and Lord Hamblen deliver a joint dissenting judgment. The majority examines the 1883 Act in light of other amendments to the criminal law around the same time, namely the Offences Against the Person Act 1861 (1861 Act) and the regulatory Explosive Substances Act 1875 (the 1875 Act) [14 15]. The 1883 Act was passed by Parliament with great speed due to fears around Irish nationalism and a perception that the 1861 Act, in particular, did not provide sufficiently for protection of the public [16]. The current regulatory regime is now primarily contained in the Explosives Regulations 2014, which like the 1875 Act before them, make clear that it is expected that private individuals, including hobbyists, may manufacture and keep explosives for their own private use [18]. In R v Fegan (1984) 78 Cr App R 189, the Court of Criminal Appeal in Northern Ireland explained that section 4(1) had been passed to address perceived deficiencies in other offences. These required proof of a specific mental element, and so were inadequate to guard against the risk of making or possessing explosives. The appellant, Fegan, acquired a firearm and ammunition (which qualified as explosive substances for the purpose of the 1883 Act) to protect himself and his family from threats against their safety and was convicted of an offence under section 4(1) of the 1883 Act. His appeal was successful, on the basis that although he had no licence for the possession of the firearm and ammunition, nonetheless he possessed them for a lawful purpose, i.e. to defend himself and his family [19 22]. Fegan was followed on similar facts in Attorney Generals Riding, the Criminal Division of the Court of Appeal of England and Wales held that in the particular circumstances of that case, curiosity did not qualify as a lawful object for the possession of a home made pipe bomb [26]. Under section 4(1), it is for a defendant to prove on the balance of probabilities that he had possession or control of an explosive substance for a lawful object. In English law, a purpose is lawful unless it is made unlawful by statute or the common law. A lawful object may, however, be tainted by an ulterior, unlawful purpose, including by knowledge or recklessness of a risk of injury or damage; but these would be matters to be explored on the evidence at trial [27 29]. The decision in Riding was correct on its facts, because the defence of the accused in that case was that he acted out of curiosity to see if he could construct a pipe bomb but he did not need to use real explosives for that; and it was no part of his defence that he had wanted to experiment by making it explode. The decision does not provide an answer in the different circumstances of the present case and was misinterpreted in the courts below. Experimentation and self education are objects within the ordinary meaning of that term and are capable of being lawful objects for the purposes of section 4(1). This view is reinforced by the background against which section 4(1) was enacted, including the 1875 Act, under which possession of explosive substances for private experimentation and use was regarded as lawful and legitimate [30 33], [35]. The Court of Appeal was wrong to conclude that the appellant was obliged to specify more precisely than he had done how the explosives would be used and that this would be lawful. The Court of Appeals reasoning was inconsistent with the Fegan and Attorney Generals was lawful [34]. As there is nothing unlawful about experimentation and self education as objects in themselves, they are capable of being lawful objects [37]. There is no requirement in law that a defence statement in relation to a charge under section 4(1) has to give a more detailed account of the proposed use of the explosive substance than that provided by the appellant [39]. The appellant ought to have been permitted to present his defence at trial [41], [43]. Lord Lloyd Jones and Lord Hamblen dissent from the majoritys reasoning and would dismiss the appeal. They take the view, in common with the courts below, that personal experimentation and private education cannot in law amount to lawful objects within the meaning of section 4(1) [51]. The word object refers to the reason for doing something, or the result you wish to achieve by doing it. As such, the Court of Appeal was correct to hold that, to make out the defence, a defendant is required to show the use to which the explosive substance is to be put, and to do so with sufficient particularity to demonstrate that that use is lawful [52]. education and personal experimentation is not enough, as the Court of Appeal previously held in Riding [54]. The defence is only made out if it is shown that the way in which the explosives were intended to be used is lawful. It is not enough to show that it may be lawful. A defence statement in response to a charge under section 4(1) should elaborate upon this and provide some details of the intended use. In the present case the appellant envisaged that experimentation would take the form of detonations of the explosives in his back garden, carrying an obvious risk of causing injury, damage to property, and a public nuisance. It was necessary to particularise how this would be carried out so as to avoid any such risk or would otherwise be lawful. Vague and general statements referring to personal experimentation or private education were insufficient and did not show how that was to be carried out lawfully [55]. Finally, Fegan and Attorney Generals was plausibly raised in each. In contrast, in the present case no lawful use is identified, and the claimed objects neither give sufficient indication of the use to which the explosives are to be put, nor do they permit assessment of the lawfulness of any such use [56].
Under the Rehabilitation of Offenders Act 1974, where a person is asked about his criminal record the question will be treated as not extending to spent convictions. Consequently, he is entitled not to disclose these and cannot be liable for a failure to do so. Equally, a prospective employer is not entitled to make any decision prejudicial to the individual by reference to spent convictions or to any failure to disclose them [6]. This applies to cautions, warnings or reprimands, which are spent as soon as they are given [76]. These appeals concern the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 and sections 113A and 113B in Part V of the Police Act 1997. The 1975 Order makes certain questions exempt from the above provisions of the 1974 Act, including where they relate to specified professions and employments, and to working with children and vulnerable adults [78 79]. Part V of the 1997 Act deals with enhanced criminal record certificates (ECRCs). These are issued where an exempted question within the meaning of the 1975 Order is asked, including by a prospective employer. Disclosure is then made of every relevant matter recorded on the Police National Computer, including, at the relevant time, any spent conviction or caution [83 84]. In T, the police issued warnings in 2002 to an 11 year old boy in respect of the theft of two bicycles. The warnings were disclosed in 2008 under Part V of the 1997 Act when T applied for a part time job with a football club possibly involving contact with children. They were disclosed again in 2010 when he applied for a place on a sports studies course which again might have involved contact with children [117]. In JB, the police issued a caution to a 41 year old woman in 2001 in respect of the theft from a shop of a packet of false fingernails. In 2009 she completed a training course for employment in the care sector. She was required to obtain an ECRC, which disclosed the caution. The training organisation told JB that it felt unable to put her forward for employment in the care sector [118]. The respondents have no other criminal records. Both claim that the references in the ECRCs to their cautions violated their right to respect for private life under article 8 of the European Convention on Human Rights. T also asserts that his obligation to disclose the warnings violated the same right. T and JB were successful in the Court of Appeal, which made declarations that the relevant provisions of the 1997 Act were incompatible with article 8. The Court of Appeal in T held that the 1975 Order was also incompatible with article 8 and ultra vires (that is, that it went beyond the powers set out in) the 1974 Act. The Secretaries of State now appeal to this Court. While they have made amendment orders designed to eliminate the problems identified by the Court of Appeal, their appeals concern the 1975 Order and 1997 Act as they stood at the time [3]. The Court unanimously (1) dismisses the appeals against the declarations of incompatibility in respect of the 1997 Act; and (2) allows the appeal against the declaration that the 1975 Order was ultra vires [158]. The respondents cautions represent an aspect of their private lives, respect for which is guaranteed by article 8 [16]. Laws requiring a person to disclose his previous convictions or cautions to a potential employer constitute an interference with that right [138]. The disclosures in the ECRCs also constituted article 8 interferences, significantly jeopardising the respondents entry into their chosen fields of endeavour [20]. Lord Reed in line with 2012 decision of the European Court of Human Rights in MM v UK considers that sections 113A and 113B of the 1997 Act are incompatible with article 8 because they fail to meet the requirement of legality, that is, that the interference with the Convention right be in accordance with law. Legality requires safeguards which enable the proportionality of the interference to be adequately examined [108 119; 158]. Legislation like the present which requires the indiscriminate disclosure by the state of personal data which it has collected and stored does not contain adequate safeguards against arbitrary interferences with article 8 rights [113 119]. Lord Neuberger, Lord Clarke and Lady Hale agree with Lord Reeds conclusion on legality [158], while Lord Wilson disagrees [28 38], emphasising the importance of the distinction between the tests of legality and necessity in a democratic society. On this point he is critical of the European Courts approach in MM. The Court unanimously holds that the article 8 interferences under both the 1997 Act and the 1975 Order could not, in any event, be said to meet the requirement of being necessary in a democratic society [50; 121; 158]. Lord Wilson notes that it was the Home Secretary who identified a need to scale back the criminal records system to common sense levels [48]. Lord Reed points to a lack of a rational connection between dishonesty as a child and the question of whether, as an adult, the person might pose a threat to the safety of children with whom he comes into contact [142]. The Court upholds the declarations of incompatibility in relation to the 1997 Act. It is impossible to read and give effect to its provisions in a way which was compatible with the respondents Convention rights [53; 120]. The Court, however, allows the appeal in T against the decision that the 1975 Order was ultra vires. This was inconsistent with the declaration of incompatibility, which stated that it did not affect the validity or continuing operation of the 1997 Act, Part V of which in fact relied upon the validity of the terms of the Order [61 62]. No judicial remedy in relation to the Order is necessary. Lord Reed explains that it had no adverse consequences for T and he can be regarded for the purposes of the Convention as having obtained just satisfaction given the courts acceptance that his complaint is well founded and the resultant amendment of the Order [66;157 158].
The question arising in this appeal is whether it is lawful for a local housing authority to accommodate a homeless person a long way away from the authoritys own area where the homeless person was previously living. Local authorities have a statutory duty to provide accommodation in their own area so far as reasonably practicable under section 208(1) Housing Act 1996 (the 1996 Act). The accommodation must be suitable to the needs of the homeless person and each member of the household, and the location can be relevant to its suitability. Regard must be given to any guidance given by the Secretary of State for Communities and Local Government. While out of borough placements are not prohibited, the Homelessness (Suitability of Accommodation) (England) Order 2012 (the 2012 Order) requires authorities to take into account the distance of the accommodation being offered from its district and the disruption to caring responsibilities or the education of any member of the household. The obligation to secure accommodation as close as possible to where the household had previously been living was strengthened by Supplementary Guidance on the homelessness changes in the Localism Act 2011 and on the Homelessness (Suitability of Accommodation) (England) Order 2012 (the Supplementary Guidance), including the need to seek to retain established links with schools, doctors, social workers and other key services and support. The appellant is a single mother of five children aged between 8 and 14. She has serious health problems. In 2012 she was evicted from her privately rented home, in which she had been living since 2008, following the introduction of a cap on housing benefit, which left her unable to pay the rent. The respondent housing authority (Westminster) accepted that she was unintentionally homeless and that it owed a duty to provide her with suitable accommodation. It offered her temporary accommodation in a house in Bletchley, near Milton Keynes, with a brief explanation that due to a severe shortage of accommodation it was not reasonably practicable to offer her a home in Westminster, but that this house was suitable in view of her circumstances. The children were not of GCSE age so Westminster considered it suitable for them to move schools. The appellant refused the accommodation and Westminster served notice that its duty to house her had come to an end. Her application for a review of the decision was unsuccessful. Her appeals to the County Court and Court of Appeal were also dismissed. The Supreme Court unanimously allows the appeal and quashes Westminsters decision that it had discharged its duty to house the appellant because she had refused suitable accommodation. Lady Hale gives the only judgment. The 1996 Act and Guidance Local authorities have a statutory duty to accommodate persons within their area so far as this is reasonably practicable. Reasonable practicability imports a stronger duty than simply being reasonable. Where it is not reasonably practicable to accommodate in borough they must generally try to place the household as close as possible to where they were previously living. The combined effect of the 2012 Order and the Supplementary Guidance has changed the legal landscape when dealing with out of borough placement policies [19]. As an aspect of the suitability of the accommodation being offered, a decision to place an applicant out of borough falls within the grounds on which a review can be sought under section 202 of the 1996 Act [20]. The childrens welfare The exercise of the local authoritys functions under the 1996 Act is subject to section 11(2) of the Children Act 2004, which requires it to have regard to the need to safeguard and promote the welfare of children. Welfare encompasses physical, psychological, social, educational and economic welfare [23] and the duty applies both to the formulation of general policies and practices and to their application in an individual case [24]. The duty is clearly relevant to the question of the suitability of the accommodation being offered [27]. It does not, however, require that the childrens welfare should be the paramount or even a primary consideration [28]. There will almost always be children affected by decisions about where to accommodate households to which the main homelessness duty is owed, and invidious choices between them must sometimes be made, but this points towards the need to explain the choices made, preferably by reference to published policies [30]. Evidencing and explaining the authoritys decisions The Secretary of State intervened in the case to emphasise the duties on local authorities to evidence and explain their decisions [31]. It must be clear from the decision that proper consideration has been given to the relevant matters required by the 1996 Act and accompanying Code. The courts below were too ready to assume that Westminster had properly complied with its statutory obligations, which had the effect of immunising from judicial scrutiny automatic decisions to house people far from their home district [35]. This case The decision made in the appellants case suffers from these defects and more. No enquiries were made to assess the practicability of moving the family to Bletchley or as to the childrens needs, and no consideration seems to have been given to the duty to offer accommodation as close by as possible or explanation given [36]. It follows that Westminster still owes the appellant a duty to secure suitable accommodation. Guidance Ideally each local authority should have an up to date publically available policy for securing sufficient units of temporary accommodation to meet the anticipated demand for the coming year, reflecting its obligations under the 1996 Act and the Children Act 2004. It should also have a policy for the allocation of those units to individual homeless households, to which reference would be made in explaining any decisions to accommodate a household out of the area [39]. This way decisions will be properly evidenced and explained, and can be challenged if required [41].
This case concerns the scope of the new offence created by section 3ZB of the Road Traffic Act 1988 (the 1988 Act). This new section was added by section 21(1) of the Road Safety Act 2006 (the 2006 Act). It provides: A person is guilty of an offence under this section if he causes the death of another person by driving a motor vehicle on a road and, at the time when he is driving, the circumstances are such that he is committing an offence under (a) Section 87(1) of this Act (driving otherwise than in accordance with a licence); (b) Section 103(1)(b) of this Act (driving while disqualified), or (c) Section 143 of this Act (using a motor vehicle while uninsured or unsecured against third party risks). On conviction on indictment, this offence carries imprisonment for up to two years. On a Sunday afternoon in October 2009 the appellant was driving his family home in a campervan along the A69 towards Newcastle. Road conditions were normal and the appellants driving was faultless. The speed limit was 60 mph and the appellant was travelling at a steady speed of 45 55mph. At the same time Mr Dickinson was driving in the opposite direction. Mr Dickinson was driving erratically his car was veering all over the road, twice crossing into the wrong lane before smashing into the appellants campervan as it rounded a bend. The appellant and his family survived. However, Mr Dickinson suffered injuries as a result of the impact that proved to be fatal. Mr Dickinson was found to have had a significant quantity of heroin in his system and was a drug user. He was also overtired, having worked a series of 12 hour nightshifts in a power station in Largs, on the west coast of Scotland. He had already driven to Largs that day and had completed approximately 230 miles of his 400 mile return journey when the collision happened. At the time of the collision the appellant did not have a driving license and was not insured, both of which are offences under the Road Traffic Act 1988. Neither offence carries a sentence of imprisonment. It was accepted by the prosecution that the appellant was in no way at fault for the accident and could not have done anything to prevent it. The blame was entirely with the driving of Mr Dickinson, yet the appellant was prosecuted under section 3ZB of the 1988 Act for causing the death of Mr Dickinson whilst driving uninsured and without a license. At trial the judge directed the jury that they could only find the appellant guilty if they found he had contributed in a substantial way to Mr Dickinsons death i.e. in a way that was more than minimal. The prosecution appealed this ruling and the Court of Appeal, which felt itself bound by the decision in R v Williams [2010] EWCA Crim 2552, held that the prosecution did not have to prove any element of fault on the part of the appellant, his mere involvement in the fatal collision would be sufficient to commit the offence. The Supreme Court unanimously allows the appeal. Lord Hughes and Lord Toulson jointly give the judgment of the court. If the Court of Appeal were correct, then in this case the appellant would be criminally responsible for Mr Dickinsons death despite not being at fault at all for the collision. In addition, if any of the appellants family had died he would also be criminally responsible for their deaths despite the fact that if Mr Dickinson had survived he would have been guilty of causing death by, at the very least, careless driving when unfit to drive through drugs.[5 6]. It would plainly have been possible for Parliament to legislate in terms which left it beyond doubt that a driver was made guilty of causing death whenever a car which he was driving was involved in a fatal accident, if he were at the time uninsured, disqualified or unlicensed. It did not and instead used expression causesdeathby driving. This imports the concept of causation [19 20]. This is not a case where the concept of a deliberate intervening act applies to break the chain of causation. Mr Dickinson did not deliberately set out to kill himself. This is a case where there are potentially multiple causes of the death. The question is whether the appellants driving was in law a cause [22]. It was not; it was simply an event but for which the collision would not have happened. That would be much the same as saying, if the other driver had hit a tree rather than the defendants vehicle, that whoever planted the tree caused the death. The law draws a distinction between things which are but for circumstances which are just the background to an event, and things which truly cause that event. In R v Williams it was held that s.3ZB must catch cases that did not fall under s.2B (causing death by careless driving) but that case did not focus on the meaning of causesdeathby driving. It does not follow from the fact that section 3ZB contains no requirement that the defendant driver should have committed the offence of careless or inconsiderate driving that he is not required to have done or omitted to do something in the driving of the car which has contributed to the death, before he can be held to have caused it by his driving [24]. The gravity of a conviction for homicide, for which the sentence may be a term of imprisonment, is such that if Parliament wishes to displace the normal approach to causation recognised by the common law, and substitute a different rule, it must do so unambiguously [27]. There is no logical or satisfactory intermediate position between holding (a) that the law imposes guilt of homicide whenever the unlicensed motorist is involved in a fatal accident and (b) that he is guilty of causing death only when there is some additional feature of his driving which is causative on a common sense view, and the latter entails there being something in the manner of his driving which is open to proper criticism. The statutory expression cannot, the Court concludes, be given effect unless there is something properly to be criticised in the driving of the defendant, which contributed in some more than minimal way to the death. It is unwise to attempt to foresee every possible scenario in which this may be true but cases which might fall under s.3ZB but not s.2B (causing death by careless or inconsiderate driving) might, for example, include driving slightly in excess of a speed limit or breach of a construction and use regulation [32]. The trial judges ruling is reinstated. and the matter returned to Newcastle Crown Court.
In 1986, upon the flotation of the TSB Group plc, four Deeds were agreed and executed by which the appellant covenanted to provide four charitable foundations with payments totalling 1% of the TSB Groups pre tax profits. The respondent was one of those charitable foundations. The original Deed was executed in 1986, amended in 1993 and replaced in 1997. Under Clause 2 of the 1997 Deed, the appellant covenanted to pay the respondent the greater of either (a) an amount equal to 0.1946 per cent of the Pre Tax Profits for the relevant Accounting The term Pre Tax Profits was defined in Clause 1 of the Deed as in relation to any Accounting (as the case may be) shown in the Audited Accounts. At the time the Deed was entered into and at all times thereafter up until 2005, only realised profits were included in the consolidated income statement (the modern equivalent of a profit and loss account). This changed in 2005 as a result of the passage of the Regulation (EC) 1606/2002 which required that any gain on acquisition arising from a bargain purchase be recognised on the profit and loss account as of the acquisition date in line with International Financial Reporting Standards requirements. During the financial crisis in 2008, Lloyds TSB Group acquired HBOS. As a result of the acquisition, the appellants group Audited Accounts for 2009 included a figure for gain on acquisition of over 11 billion. This figure reflected the difference between the book value of HBOSs assets and the consideration given by Lloyds Bank of about half that amount. The inclusion of the gain on acquisition had the effect of converting a loss of over 10 billion into a profit before taxation of over 1 billion in the appellants Audited Accounts. The respondent asserts that this latter figure constitutes the group profit before taxation shown in the Audited Accounts, with the effect that they are due to receive a payment of 3,543,333 from the respondent pursuant to Clause 2 of the Deed. The appellant rejects this assertion and contends that it was unthinkable prior to 2005 that an unrealised gain on acquisition would be included in the consolidated income statement; indeed its inclusion would have been contrary to both the law and accounting practice. Accordingly, the appellant contends that the figure for gain on acquisition should be disregarded for the purposes of calculating the payments due to the respondent, with the effect that they should receive the fixed sum of 38,920. The Outer House of the Court of Session found for the appellant and the Lord Ordinary granted decree of absolvitor dismissing the claim. The Inner House of the Court of Session allowed the respondents appeal. The appellant appeals to the Supreme Court on the grounds that on its proper construction the figure for gain on acquisition should be disregarded when calculating the payments due under the Deed. The Supreme Court unanimously allows the appeal and restores the Lord Ordinarys decree of absolvitor dismissing the claim. The Deeds should be understood in the legal and accounting context at the dates when they were executed. In this respect, when the original Deed was made in 1986, amended in 1993 and replaced in 1997, two fundamental legal and accounting principles applied: (a) that a profit and loss account was concerned with ordinary activities before taxation and (b) that only profits realised at the balance sheet date could lawfully be included in the profit and loss account [7]. The Deed should be given a contextual and purposive interpretation [21]. Here the landscape, matrix and aim of the 1997 Deed were concerned with and aimed at realised profits or losses before taxation [22]. The change introduced in 2005 by Regulation (EC) 1606/2002 which required that negative goodwill be recorded in the profit and loss account as a gain on acquisition was wholly outside the parties original contemplation and is something they would not have accepted had they foreseen it [22]. Given that the 1997 Deed did not require an unrealised gain on acquisition to be taken into account in identifying the group profit before taxation, it is circular to try and draw any inference from the fact that the parties did not renegotiate or amend the Deed [14, 17]. Nor does the phrase group profit before taxation shown in the Audited Accounts have the effect of tying the appellant to any similarly phrased line which may be found in a future years Audited Accounts, no matter how different the basis on which that figure is arrived at from that which existed or was in mind when any of the Deeds were executed [20]. As the Deed has not been frustrated, it is necessary to determine how its language best operates in the fundamentally changed and entirely unforeseen circumstances in light of the parties original intentions and purposes; this is best achieved by ignoring the unrealised gain on acquisition in the 2009 accounts [23]. Ignoring the figure for gain on acquisition would not pose difficulties in later accounting periods [26 28]. Indeed, it is inconceivable that the parties could have intended the respondent to derive from an unrealised gain a benefit it could not derive from a realised profit yet this could occur were HBOS to be sold at a profit over and above its fair value as such a realised gain would be excluded from the calculation under the Deed [29]. The doctrine of equitable adjustment forms part of Scots law and resort may be made to it in cases where the contract has become impossible of performance or something essential to its performance has been totally or partially destroyed [46]. However, the Court cannot equitably adjust a contract on the basis that its performance, while not frustrated, is no longer that which was originally contemplated [44, 47].
On 4 March 2005, the appellant (the owners) bought a cruise ship called the New Flamenco (the vessel). The vessel had been chartered to the respondent (the charterers) by its previous owners by way of a time charterparty (the charterparty). By a novation agreement the appellant assumed the rights and liabilities of the previous owner under the charterparty effective as from 7 March 2005. In August 2005, the owners and the charterers concluded an agreement extending the charterparty for two years so that it was due to expire on 28 October 2007. At a meeting on 8 June 2007, the owners and charterers reached an oral agreement extending the charterparty for a further two years, expiring on 2 November 2009. The charterers disputed having made the agreement and maintained they were entitled to redeliver the vessel on 28 October 2007. The owners treated the charterers as in anticipatory repudiatory beach and accepted the breach as terminating the charterparty. The vessel was redelivered on 28 October 2007. Shortly before the delivery the owners agreed to sell the vessel to a third party for US$23,765,000. The owners commenced arbitration in London, as provided for by the charterparty, seeking damages for the charterers repudiatory breach [4]. The arbitrator found that an oral contract to extend the charterparty had been made, the charterers were in repudiatory breach of that contract and therefore the owners were entitled to terminate the charterparty. This finding is unchallenged [9 10]. However, there was a significant difference between the value of the vessel when the owners sold it, and its value in November 2009 (found by arbitrator to be US$7,000,000), when the vessel would have been redelivered to the owners had the charterers not been in breach [6]. The arbitrator declared that the charterers were entitled to a credit for this difference in value, amounting to 11,251,677 (the equivalent of US$16,765,000), which could be discounted from any damages payable by the charterer to the owners from the loss of profit claim. The credit was more than the owners loss of profit claim and would result in the owners recovering no damages [7, 12]. The owners appealed to the High Court pursuant to section 69 of the Arbitration Act 1996 on a question of law, namely whether when assessing the owners damages for loss of profits the charterers were entitled to take into account as diminishing the loss the drop in the capital value of the vessel [14]. Popplewell J held that they were not because the benefit accruing to the owners from the sale of the vessel in October 2007, instead of in November 2009, was not legally caused by the breach [15]. The charterers appealed to the Court of Appeal. The appeal was allowed on the basis that the owners took a decision to mitigate their loss by selling the vessel in October 2007 and there was no reason why the benefit secured by doing this should not be brought into account, in the same way that benefits secured by spot chartering a vessel during an unexpired term of charterparty would be [28]. The owners now appeal that judgment to the Supreme Court. The Supreme Court allows the owners appeal. The charterers are not entitled to a credit for the difference in the value of the vessel when sold in 2007, in comparison to its diminished value in 2009. Lord Clarke, with whom the other justices agree, gives the lead judgment. The fall in the value of the vessel is irrelevant because the owners interest in the capital value of the vessel had nothing to do with the interest injured by the charterers repudiation of the charterparty [29]. This is not because the benefit must be the same kind as the loss caused by the wrongdoer, but because the benefit was not caused either by the breach of the charterparty or by a successful act of mitigation [30]. The repudiation resulted in a prospective loss of income for a period of about two years. However, there was nothing about the premature termination of the charterparty which made it necessary to sell the vessel, at all or at any particular time. It could also have been sold during the term of the charterparty. When to sell the vessel was a commercial decision made at the owners own risk [32]. The owners would not have been able to claim the difference in the market value of the vessel if the market value had risen between the sale in 2007 and the time the charterparty would have terminated in 2009. The premature termination of the charterparty was at most the occasion for selling the vessel, but it was not the legal cause of it. There is equally no reason to assume that the relevant comparator is a sale in November 2009; there is no reason that a sale would necessarily have followed the lawful redelivery at the end of the charterparty term [33]. For the same reasons, the sale of the ship was not on the face of it an act of successful mitigation. If there had been an available charter market, the loss would have been the difference between the actual charterparty rate and the assumed substitute contract rate. Sale of the vessel would have been irrelevant. In the absence of an available market, the measure of the loss is the difference between the contract rate and what was or ought reasonably to have been earned from employment of the vessel under shorter charterparties. The relevant mitigation in that context is the acquisition of an alternative income stream to the income stream under the original charterparty. The sale of the vessel was not itself an act of mitigation because it was incapable of mitigating the loss of the income stream [34]. Popplewell J was therefore correct to hold that the arbitrator erred in principle. The Supreme Court prefers his conclusion to that of the Court of Appeals. His order, setting aside the part of the arbitral award that declared that the charterers were entitled to a credit of 11,251,677 in respect of the benefit that accrued to the owners when they sold the vessel in October 2007 as opposed to November 2009, is therefore restored [36].
In 2009, when the appellant was aged 14, the police charged him with two charges of lewd and libidinous practices at common law and one contravention of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. One of the common law charges involved the allegation of showing online pornographic images to a young boy. The other common law charge and the statutory charge involved the allegation of exposing his penis to, and chasing after, three other children, who were girls aged 4, 12 and 13. The police reported the case to the Procurator Fiscal but a decision was made not to prosecute the appellant. In July 2015, when the appellant was aged 19, he was charged with having sexual intercourse with a girl who was aged 14 years and 11 months, contrary to sections 28 and 30 of the Sexual Offences (Scotland) Act 2009 (the 2009 Act). The appellant did not deny that sexual intercourse had taken place, but sought to rely on the defence in section 39(1)(a) of the 2009 Act that at the time he reasonably believed that the girl was aged 16. However, section 39(2)(a)(i) of the 2009 Act provides that the reasonable belief defence is not available to an individual who has previously been charged by the police with a relevant sexual offence. The relevant sexual offences are set out in Schedule 1 to the 2009 Act and cover a wide range of sexual offences, both consensual and non consensual, and include offences in which the age of the victim is not an essential component of the crime. The definition excludes consensual sexual activities between older children. The offences with which the appellant had been charged in 2009 fell within the meaning of a relevant sexual offence and the appellant could not therefore plead the reasonable belief defence. He argued that section 39(2)(a)(i) was not compatible with his rights as set out in the European Convention on Human Rights and therefore, in accordance with section 29 of the Scotland Act 1998, was outside the competence of the Scottish Parliament and was not law. He argued that that the provision breached both the presumption of innocence in Article 6(2) and his Article 8 right to privacy, and was unjustifiably discriminatory for the purposes of Article 14 read with Article 8. The Lord Advocate argued that any interference with the appellants Convention rights was justified in the interests of protecting older children from sexual exploitation. He argued that the prior charge acts as an official warning, alerting the person charged to the importance of a young persons age in relation to sexual behaviour, and therefore justifies depriving that person, if later charged with a sexual offence against an older child set out in section 28 to 37 of the 2009 Act, of the reasonable belief defence. The Supreme Court unanimously allows ABs appeal and remits the proceedings to the High Court of Justiciary. Lord Hodge gives the lead judgment, with which the other Justices agree. Lord Reed gives a concurring judgment, with which Lord Kerr, Lord Wilson and Lord Hughes agree. Article 6 Section 39(2)(a)(i) is not within the ambit of Article 6. Section 39(2)(a)(i) did not create an irrebuttable presumption that the appellant did not have a reasonable belief as to the age of the girl with whom he had sexual intercourse, thereby overriding the presumption of innocence in Article 6(2). The provision created what amounts to a strict liability offence, by treating as irrelevant the accused persons knowledge of the victims age. Such an offence does not violate Article 6(2), which is concerned with procedural guarantees and not with the substantive elements of a criminal offence [21]. Article 8 There was an interference with Article 8 which requires to be justified under Article 8(2) because the prosecutor relied on the earlier police charge in the criminal proceedings [23 24, 56 57]. Lord Hodge concludes that section 39(2)(a)(i) is incompatible with the appellants Article 8 rights [47]. The exclusion of the reasonable belief defence in this case is a disproportionate interference with the appellants Article 8 rights because the prior charges did not give the official warning or notice that consensual sexual activity with children between the ages of 13 and 16 is an offence [44]. Those prior charges were not charges of sexual activity with a child aged between 13 and 16 and therefore did not provide such a warning [29]. The list of relevant sexual offences includes charges in which the age of the victim is not an essential component, extends far beyond consensual sexual activity with an older child and excludes charges where the charged person was an older child at the time of the charge. This suggests that section 32(2)(a)(i) is likely in many other cases to give rise to infringements of article 8 because the prior charge does not objectively give the relevant warning [45, 47]. Lord Reed agrees that the interference with the Article 8 right is not proportionate where the necessary link between the prior charge and the supposed warning does not exist [66]. The difficulty arises from the width of the definition of relevant sexual offences. Since such offences are not confined to sexual conduct which is illegal because it is with children, prior charges of such offences cannot be taken to have alerted the accused to the importance of making sure that a person is over 16 before engaging in sexual activities. Further, since the definition includes non consensual offences, prior charges relating to those offences cannot be taken to have alerted the accused to the importance of age in the context of consensual sexual conduct [64]. The definition also excludes consensual sexual activities between older children, perhaps the clearest example of a situation where the charge alerts the person charged to the importance of the age of consent when engaging in consensual sexual behaviour [65]. Article 14 In light of the conclusions in relation to Article 8, it is unnecessary to discuss this challenge [46, 67]. Remedy It is not possible to interpret section 39(2)(a)(i) narrowly to bring it within the competence of the Parliament [48, 66]. Section 39(2)(a)(i) is therefore not law [66] and proceedings are remitted to the High Court of Justiciary to exercise the power to suspend or vary the effect of this decision [49 50].
In Cadder v HM Advocate [2010] UKSC 43, the Supreme Court held, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421, that the Crowns reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee at a police station was a violation of his rights under Article 6(3)(c), read with Article 6(1) of the European Convention on Human Rights. The issues in these cases are whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applies only to questioning which takes place when the person has been taken into police custody; and, if the rule applies at some earlier stage, from what moment does it apply. The accused in the first case, John Paul Ambrose, was prosecuted on a charge of contravening section 5(1)(b) of the Road Traffic Act 1988 as being in charge of a motor vehicle while over the alcohol limit. He was questioned by two police officers by the roadside, who cautioned him but did not give him any specification about the offence he was suspected of having committed. In response to their questions, he confirmed that he was in possession of the car keys, and that he might be intending to drive the car. Breath tests indicated that he was substantially over the prescribed limit. In his trial the Crown led evidence of the questions and answers at the roadside. In M, the accused was charged with assault to severe injury, permanent disfigurement and permanent impairment. A few days after the incident, the police visited him at his home, cautioned him, and asked him a number of questions, in response to which he confirmed his attendance at the locus on the night in question and his involvement in the fight. He was detained the following day, and questioned further while he was in custody. At trial, he objected to the Crowns reliance upon the admissions he had made in his home, on the basis that he had not had access to legal advice prior to interview. In G, the accused was indicted with offences including the possession of controlled drugs under the Misuse of Drugs Act 1971 and possession of prohibited firearms and ammunition under the Firearms Act 1968. The police had obtained a warrant to search the accuseds flat. They forced entry and found him there. He struggled, and was handcuffed and cautioned. He admitted to having drugs in his pocket, and responded to a number of questions about items found in the flat. He was subsequently arrested and taken to a police station where he answered further questions. He objected to the Crowns reliance at trial on the statements he made during the course of the search of the flat. In each of the three cases, the Appeal Court of the High Court of Justiciary referred to this Court the question whether the act of the Lord Advocate in leading and relying on the evidence in question would be incompatible with the appellants rights under Article 6(1) and (3)(c) of the European Convention on Human Rights. The Supreme Court, by a majority of 4 to 1, finds that, in the cases of Ambrose and M, the act of the Lord Advocate in leading and relying at the trial on the evidence that was obtained from them in response to police questioning without having had access to legal advice was not incompatible with the Article 6(1) and (3)(c) right; and in the case of G that it was incompatible. In Ambrose and M, the question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for decision by the Appeal Court and Sheriff Court respectively. Lord Hope gives the leading judgment. Lord Kerr gives a separate dissenting judgment finding in all three cases that the evidence would be inadmissible. In each of these three cases, the circumstances differ from those before the Supreme Court in Cadder and before the Grand Chamber in Salduz, in that the evidence in question was obtained through police questioning before the individuals were detained at a police station. The Supreme Court notes, firstly, that the jurisdiction of this court is limited to a consideration of the devolution issue which is raised by each of these references, and does not extend to ruling on how the circumstances referred to in each case would fall to be dealt with under domestic law. Secondly, it notes that a decision by this court that there is a rule that a person who is suspected of an offence but is not yet in custody has a right of access to a lawyer before being questioned by the police would have far reaching consequences for the investigation of crime by the authorities. Therefore, if Strasbourg has not yet spoken clearly on this issue, the court would be wise to wait until it has done so [14 15]. The duty of the domestic court in interpreting the Convention is to keep pace with the Strasbourg case law as it evolves over time. There is no obligation upon domestic courts to do more than that (R (Ullah) v Special Adjudicator [2004] UKHL 26, para 20 per Lord Bingham of Cornhill) [17]. The courts task in this case is to identify where the Strasbourg court stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies [20]. In domestic law, where an individual has not yet been detained under section 14 of the Criminal Procedure (Scotland) Act 1995, the test for the admissibility of answers given to questions put by police is whether or not there was unfairness on the part of the police. The fact that the person did not have access to legal advice when being questioned is a circumstance to which the court may have regard in applying the test of fairness, but it carries no more weight than that. There is no rule in domestic law that provides that police questioning of a person without access to legal advice who is suspected of an offence but is not in police custody must always be regarded as unfair. The question is whether a rule to that effect is to be clearly found in the jurisprudence of the Strasbourg court [25]. The Grand Chamber in Salduz had in mind the need to protect an accused against abusive coercion while in custody. The judgment appears to have been concerned only with establishing a rule that there was a right of access to a lawyer where the person being interrogated was in police custody [33]. That assessment is supported by subsequent Strasbourg case law, in particular Zaichenko v Russia (Application no.39660/02), the only case to date in which the complaint was of lack of legal assistance during police questioning when the applicant was not in custody [46]. If the Salduz judgment were to apply to statements made by a person in response to police questioning before being taken into custody, the court would have had to have said so expressly. It did not do so [35]. The privilege against self incrimination is not an absolute right (Murray v United Kingdom (1996) 22 EHRR 29, para 47). It is primarily concerned with respecting the will of the person to remain silent (Saunders v United Kingdom (1996) 23 EHRR 313, para 68), and a person is free to confess if he is willing to do so. Police custody or its equivalent creates a need for protection of the accused against abusive coercion. The same is not the case for questioning at the locus or in a persons home [54]. In principle, the line as to when access to legal advice must be provided before the person is questioned should be drawn as from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed [55]. The correct starting point when considering whether the persons Convention rights have been breached is to identify the moment at which he is charged for the purposes of Article 6(1); that is whether his situation is substantially affected (Deweer v Belgium (1980) 2 EHRR 439, para 46; Eckle v Germany (1982) 5 EHRR 1, para 73). That will be the case as soon as the suspicion against him is being seriously investigated and the prosecution case compiled [62]. The fact that a person who has become a suspect and is not in custody is questioned without access to legal advice will be a relevant factor in the assessment whether the accused was deprived of a fair hearing, but it will be no more than that. In Ambrose and M, the question is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning, conducted under common law at the roadside or at the accuseds home, without the accused having had access to legal advice, was incompatible with Article 6(1) and (3)(c). This is answered in the negative. Ambrose was charged for the purposes of Article 6 when he was cautioned. Suspicion that he was committing an offence fell on him as soon as he told the police that the keys were in his pocket [67]. M was charged when he was cautioned by the police officer at his home [69]. But it would be to go further than Strasbourg has gone to hold that the appellants are entitled to a finding that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being subjected to questioning at the roadside [68 & 70]. The question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for the Appeal Court and Sheriff Court respectively. In G, the question whether it is incompatible with his Convention rights for the Lord Advocate to lead evidence of his statements made during the course of the search is answered in the affirmative. He was charged for the purposes of Article 6 by the time the police began their search. The difference with this case was that there was a significant curtailment of Gs freedom of action. He was detained and had been handcuffed, and was, in effect, in police custody from that moment onwards. The circumstances were, therefore, sufficiently coercive for the incriminating answers that he gave to the questions that were put to him without access to legal advice to be inadmissible [71]. The same result need not, however, follow in every case where questions are put during a police search to a person who is to be take to have been charged for the purposes of Article 6; that, again, would be going further than Strasbourg has gone [72]. Lord Kerr would have found the evidence in question to be inadmissible in all three cases. It is not open to courts of this country to refrain from recognising a claim to a Convention right simply because Strasbourg has not spoken clearly on the matter [128]. In practice, it is inevitable that many claims to Convention rights will have to be determined by the UK courts without the benefit of unequivocal jurisprudence from Strasbourg. It is the duty of every domestic court to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view [129]. As regards the right of access to a lawyer, the selection of the moment of being taken into custody as the first occasion on which legal representation becomes necessary is both arbitrary and illogical. The judgment in Salduz indicates that the need to have a lawyer is not to be determined on a geographical or temporal basis but according to the significance of what is taking place when the admissions in question are made [136]. The essential question is: when the questioning is taking place, is the suspect in a position where the advice of a lawyer is essential if a fair trial is to occur. If he is liable to incriminate himself at that time, a lawyers presence is required [145]. The judgment in Zaichenko is not clear, but does not indicate that formal arrest and interrogation in custody are essential prerequisites to the invocation of the right to legal assistance [158].
This matter centres around a married man and woman who, until 2015, had been living together in Australia with their two children. By the end of 2014 the marriage was in difficulties. The mother, who holds British citizenship, wanted to make a trip to England with the children before returning to work from maternity leave. The father agreed to an eight week stay. The mother and the children came to England on 4 May 2015 where they have since remained. Discussions between the mother and father resulted in the father agreeing to an extension of the eight week visit up to a year. Based on the extension, the mother gave notice to her employer and looked for work in England. In September 2015, the mother enrolled the older child at a local pre school. Without telling the father, on 2 November 2015, she applied for British citizenship for both children who had entered England on six month visitor visas. Her solicitors wrote a letter to the immigration authorities on her behalf indicating that she and the children could not return to Australia for fear of domestic abuse. In continuing correspondence, the father pressed the mother on the childrens expected date of return. The mother indicated that she did not know what her plans were but made clear that she would not be returning in May 2016. In June 2016, she expressed her intention to remain in the UK. The father made an application in the High Court under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the Abduction Convention). The issue of when the mother had decided not to return to Australia was in contention. The mothers own case was that by April 2016 she had felt she and the children would not be returning. The arguments before the Court meant that, on any view, there was a decision not to return to Australia before the expiry of the agreed year. The judge held that the children were habitually resident in England and Wales by the end of June 2016 so that mandatory summary return was unavailable under the Abduction Convention. But he accepted mothers evidence that she did not have the intention, in November 2015, or before April 2016, not to return to Australia. The mother now appeals against the Court of Appeals decision. The issues in the appeal are: (1) what is the effect on an application under the Abduction Convention if a child has become habitually resident in the destination state before the act relied on as a wrongful removal or retention occurs; and (2) if a child has been removed from their home state by agreement with the left behind parent for a limited period can there be a wrongful retention before the agreed period of absence expires (so called repudiatory retention)? The father cross appeals on the issue of habitual residence. The Supreme Court allows the appeal and dismisses the cross appeal. Lord Hughes gives the lead judgment with whom Lady Hale and Lord Carnwath agree. Lord Kerr and Lord Wilson each give judgments concurring on the two points of principle but dissenting on the outcome of this case on its facts. Issue 1 When considering the general scheme of the Abduction Convention, the construction that summary return is available if, by the time of the act relied on as a wrongful removal or retention, a child is habitually resident in the state where the application for return is made is unpersuasive. That construction is inconsistent with the operation of the Abduction Convention since 1980 and its treatment by subsequent international legal instruments. [19] The Abduction Convention is designed to provide a summary remedy which negates the pre emptive force of wrongful removal or retention and to defeat forum shopping. [21] The point of the scheme adopted by the Abduction Convention was to leave the merits to be decided by the courts of the place of the childs habitual residence. If the forum state is the habitual residence of the child, there can be no place for a summary return to somewhere else, without a merits based decision. This understanding of the scheme of the Abduction Convention is reflected in the provisions of both the Revised Brussels II Regulation and the 1996 Hague Convention on Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children. [23] The Abduction Convention cannot be invoked if by the time of the alleged wrongful act, whether by removal or retention, the child is habitually resident in the state where the request for return is lodged. In such a case, that state has primary jurisdiction to decide on the merits, based on the childs habitual residence, and there is no room for a mandatory summary decision. [34] Issue 2 Repudiatory retention has been recognised in some jurisdictions, but no generally accepted international practice or authority exists on the point. [39] The desirability of inducing a prompt change of mind in the retaining parent is an argument for recognising a repudiatory retention when and if it occurs. The 12 month time limit for seeking mandatory summary return runs from the point a repudiatory retention occurs and that period may pass before an applicant is aware of the repudiatory retention. However, it is not a limitation period but a provision in the childs interest to limit mandatory summary return. Once elapsed it renders a summary return discretionary. The concern that repudiatory retention would make Abduction Convention applications longer and more complicated is a point well made. However, Family Division judges are used to managing applications actively and controlling any tendency to spill outside the relevant issues. Further, if repudiatory retention requires an overt act or statement, this lessens the danger of speculative applications. [46 48] Repudiatory retention is possible in law. The objections to it are insubstantial, whereas the arguments in favour are convincing and conform to the scheme of the Abduction Convention. It would be unwise to attempt an exhaustive definition of proof or evidence. An objectively identifiable act of repudiation is required, but it need not be communicated to the left behind parent nor does an exact date need to be identifiable. [50 51] On the present facts there could not have been a wrongful retention in April 2016 as the mothers internal thinking could not by itself amount to such. If she had such an intention in November 2015, the application to the immigration authorities could have amounted to a repudiatory retention. But it was open to the judge to believe the mothers evidence that she did not possess this intention in November. [55] There is no basis in law for criticising the judges decision as to habitual residence. [57] Lord Kerr dissents on the outcome of this case on its facts. He expresses misgivings about repudiatory retention requiring an overt act by the travelling parent. [63] The judges finding that wrongful retention did not arise in this case could not be reconciled with his statement that the mother had concluded by April 2016 that she and the children should remain in England. [68] Moreover, the judges conclusion that the mother had not formed any intention to retain the children in England in November 2015 is insupportable as he failed to address the question of what bearing the letter of November 2015 had on her intention. [72] Lord Wilson also dissents on the outcome of this case on its facts. The solicitors letter to the immigration authorities in November 2015 represented a major obstacle to any finding that the mother had not by then intended to keep the children in the UK indefinitely. The judges finding as to the mothers intention in November 2015 was flawed and the Court of Appeal were correct to order a fresh inquiry into her intention. [91 92]
This appeal concerns the legality under the Human Rights Act 1998 of an Enhanced Criminal Record Certificate (ECRC) issued in respect of the appellant (AR) under section 113B of the Police Act 1997. An ordinary Criminal Records Certificate is limited to the facts of convictions or cautions or their absence. By contrast, an ECRC includes information on the basis simply of the Chief Officers opinion as to its relevance, and whether it ought to be included in the certificate. In January 2011, AR was acquitted of rape by the Crown Court. He was a married man with children, of previous good character, and a qualified teacher, but was working at the time as a taxi driver. It was alleged that he had raped a woman who was a passenger in a taxi driven by him. His defence was that there had never been sexual contact with the victim. Following his acquittal, he applied for an ECRC in the course of an application for a job as a lecturer. The ECRC was issued with details of the rape charge for which he had been tried and acquitted. AR objected to this disclosure on the basis that there had been no actual conviction and it failed to give a full account of the evidence given and how the jury came to its conclusion. The judge and the Court of Appeal dismissed ARs appeal against the disclosure, holding that it was reasonable, proportionate and no more than necessary to secure the objective of protecting young and vulnerable persons. The main issue before the Supreme Court was whether the admitted interference with ARs rights under article 8 of the European Convention of Human Rights (ECHR) due to the disclosure was justified. There was also a question as to the proper role of an appellate court in reviewing the judges finding of proportionality under the ECHR. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the judgment with which all the other justices agree. The leading authority on the operation of the ECRC regime is the Supreme Court decision in R (L) v Comr of Police of the Metropolis [2010] 1 AC 410 (Ls case). In Ls case, the ECRC disclosed details of alleged inadequate parental supervision by the applicant of her child. It was held that although article 8 was engaged, the essential issue was whether the disclosure was a proportionate interference with her private life, and that in the particular circumstances of the case, the significance of the information in respect of risk to children outweighed the prejudicial effect of the disclosure on the applicants employment prospects [22 29]. Following the initial hearing before the Supreme Court in the present case, the court sought more detailed information about the guidance available to chief officers and potential employers as to the operation of the ECRC system, and also any evidence about its impact on those affected. The resulting picture was not entirely clear or consistent [30 41]. On the issue of the proper role of the appellate court in approaching proportionality, Lord Carnwath noted that the purpose of the appeal is to enable the reasoning of the lower court to be reviewed and errors corrected, not to provide an opportunity for parties to reargue the same case [57]. The question in relation to the standard of review is whether the judge erred in principle or was wrong in reaching the conclusion which he did [61]. To limit intervention to a significant error of principle, as the Court of Appeal did, is too narrow an approach if it is taken as implying that the appellate court has to point to a specific principle which has been infringed by the judgment of the court below. The decision may be wrong because of an identifiable flaw in the judges reasoning which undermines the cogency of the conclusion. It is equally clear, however, that it is not enough that the appellate court might have arrived at a different evaluation. In the present case, it was sufficient for the Court of Appeal to consider whether there was any such error or flaw in the judges treatment of proportionality, and if there was not, there was no obligation for it to make its own assessment [64 65]. The procedural aspect of the complaint under article 8 is essentially that there was a lack of consultation, and this was rightly rejected for the reasons given by the judge as endorsed by the Court of Appeal. The officers were fully aware from the evidence at trial of the nature of ARs defence, and his personal circumstances, and they were aware and took account of the potential impact on his employment prospects. As the judge said, there was no indication of any further information he would have wished to advance [66]. On the substantive effect of article 8, Lord Carnwath rejected the submission that the interference involved in the disclosure could not be justified unless the officers were in a position to form a positive view of likely guilt, which could not be done without a full appraisal of the evidence at trial. He did not accept that, as a matter of domestic law or under article 8, it is necessary or appropriate for those responsible for an ECRC to conduct a detailed analysis of the evidence at the trial [67 68]. The judge went no further than to accept, as he was entitled to do, the Chief Constables view that the information was not lacking substance and that the allegations might be true. It was a matter for him to assess whether the information was of a sufficient wright in the article 8 balance. It should be borne in mind that the information about the charge and acquittal was a matter of public record, and might have come to the potential employers knowledge from other sources. The judge took full account of the possible employment difficulties for AR, but regarded them as no more than necessary to meet the pressing social need for which the ECRC process was enacted [69 70]. Lord Carnwath notes in a postscript to his judgment that although he has reached a clear conclusion on the limited issues raised by this appeal, it gives rise to more general concerns about the ECRC procedure in similar circumstances. There is no clear guidance as to what weight should be given to an acquittal in different circumstances, and there is a lack of information about how an ECRC is likely to be treated by a potential employer in such a case. Careful thought needs to be given to the value in practice of disclosing allegations which have been tested in court and have led to an acquittal [72 76].
Article 52(1) of the European Patent Convention (the EPC) provides that, in order to obtain a European patent, an invention must be susceptible of industrial application. Article 57 states that an invention is susceptible of industrial application if it can be made or used in any kind of industry. The primary issue in this case is the way in which the requirement of industrial applicability extends to a patent for biological material. The Appellant is the proprietor of European Patent (UK) 0,939,804 (the Patent). It describes the encoding nucleotide, the amino acid sequence, and certain antibodies of a new human protein called Neutrokine , and includes contentions as to its biological properties and therapeutic activities, as well as those of its antibodies. These contentions are predictions substantially based on the proposition that Neutrokine is a member of the THF ligand superfamily. The Patent was filed on 25 October 1996 and granted on 17 August 2005. The Respondent brought opposition proceedings in the Opposition Division of the European Patent Office (the EPO), following which the Patent was revoked. The Appellant appealed to the Technical Board of Appeal (the Board) of the EPO, which allowed the appeal and ordered that the Patent be maintained. Meanwhile, the Respondent brought parallel proceedings in the High Court for revocation of the Patent in the UK. The High Court revoked the Patent, on the basis that, in the light of the common general knowledge, the notional addressee of the Patent (a person skilled in the art) would have concluded that the functions of Neutrokine were, at best, a matter of expectation and then at far too high a level of generality to constitute a sound or concrete basis for anything except a research project. This decision was upheld by the Court of Appeal. The Supreme Court unanimously allows the appeal, dismisses the cross appeal, and remits the case to the Court of Appeal to deal with the outstanding issues. The leading judgments are given by Lord Neuberger and Lord Hope, with whom the other justices agreed. There is very little UK authority on the topic of industrial applicability, particularly as regards biological material [37] and [88], and the applicable principles are really to be found in the jurisprudence of the EPO and the Board [42]. While the reasoning in each decision of the Board is not binding upon national courts, the courts should normally follow the jurisprudence of the EPO, particularly where the Board has adopted a consistent approach to an issue in a number of decisions [84] and [87], as is the case with regard to the application of Article 57 to patents for biological material [88]. Further, there are strong policy reasons for seeking consistency of approach to patents in the biological field, as it is import for bioscience companies to be able to decide at what stage to file for patent protection, and to be able to obtain funding based on patent protection [96 102] and [141 143]. Despite the very wide ranging and generalised suggestions in the Patent as to the uses to which Neutrokine and its antibodies might be put, over and above revealing the existence and structure of the new protein and its encoding gene, the only relevant guidance in the Patent ultimately arises from its teaching as to the tissue distribution of Neutrokine , its expression in T cell and B cell lymphomas, and the fact that it is a member of the TNF ligant superfamily. The question is whether the Judge in the High Court was right, or at least entitled, to conclude that the inferences which would have been drawn from the Patent specification in 1996 would not have been enough to satisfy Article 57 [103]. That conclusion was based on the fact that the Patent neither revealed how Neutrokine could be used to solve any particular problem nor identified any disease or condition which it could be used to diagnose or treat [104] and [161]. That reasoning was not consistent with the approach adopted by the Board, from which a number of general and specific principles may be drawn [106 107]. In light of those principles, the disclosure of the existence and structure of Neutrokine and its gene, and its membership of the TNF ligand superfamily should have been sufficient, taking into account the common general knowledge, to satisfy the requirements of Article 57 [109]. This is because all known members of the TNF ligand family were expressed on T cells and were able to co stimulate T cell proliferation, and therefore Neutrokine would be expected to have a similar function [111]. The fact that the members of that superfamily were known to have pleiotropic effects is irrelevant where the value of the new member relates to the common features manifested by all known members [112 115]. Neither the Judge nor the Board considered that the unsatisfactory drafting of the Patent would actually have diverted the person skilled in the art from what their search of the literature, coupled with common general knowledge, would otherwise have led them to understand represented the teaching of the Patent [116 118]. The lower courts were wrong to focus on the speculative nature of some of the therapeutic uses of Neutrokine as disclosed in the Patent, and the degree of extra effort required to determine those uses, when the known activities of the superfamily were enough in themselves to justify patentability for the disclosure of a novel molecule (and its encoding gene) [119 121], [124 128] and [161]. For the same reason, the Respondents argument that the specification of the Patent is insufficient must fail [132 139]. The standard set by the Judge for susceptibility to industrial application was a more exacting one than that used by the Board. He was looking for a description that showed that a particular use for the product had actually been demonstrated, rather than that the product had plausibly been shown to be usable for the purposes of research work [151] and [154], which the Board must be taken to have regarded as an industrial activity in itself [155 156]. Notwithstanding the importance of deference to the findings of fact and value judgments of a court of first instance, especially where that decision is confirmed on appeal [94 95], [166], [168 170 and 172], in this case it is evident that the Judge and Court of Appeal failed to follow the principles of law clearly set out by the Board in this and previous cases. The appeal must therefore be allowed.
The appellant, Mr Carlyle, is a property developer. In 2007 he purchased a plot of land for development at Gleneagles, Perthshire from the Gleneagles Hotel. He had to complete the construction of a new house on the plot by 31 March 2011, before the Ryder Cup was due to be staged at Gleneagles golf course. The purchase was subject to a buy back clause entitling the vendor to re purchase the plot for the original price if the construction was not completed on time [9]. Mr Carlyle funded the purchase by taking a loan from the respondent, The Royal Bank of Scotland Plc (the bank). On 26 March 2007 Mr Carlyle met with representatives of the bank to discuss the proposed loan. The buy back clause was discussed and Mr Carlyle made it clear that he would need to borrow money to build the house as well as to purchase the plot [9]. In subsequent telephone calls he reiterated that the bank should not lend him the purchase money unless it was also committed to providing him with development funding [10]. On 14 June 2007 the banks representative told him by telephone that his proposal was all approved and Mr Carlyle accordingly paid a deposit to the vendor to secure the purchase [11]. In August 2008 the bank informed Mr Carlyle that it would not provide funding for construction and called in the loan. On 14 August 2008 the bank raised an action against Mr Carlyle for the payment of 1,449,660 plus interest. Mr Carlyle defended the action and counter claimed for his loss of profit on the development [3]. The central issue in the case was whether, on an objective assessment of what the parties said to each other, the bank intended to enter into a legally binding promise to lend Mr Carlyle money for not only the purchase but also the development of the plot [1]. On 10 May 2010 the Lord Ordinary declared the bank was in breach of a collateral warranty to make development funding of 700,000 available to Mr Carlyle [5]. He held that the telephone conversation of 14 June 2007, set in the context of the previous discussions, represented a commitment by the bank both to advance the purchase price and to provide a facility for the build cost [13]. The bank appealed. On 12 September 2013 the Second Division of the Inner House allowed the banks reclaiming motion [6], holding that: (i) in the conversation of 14 June 2007 the bank had simply informed Mr Carlyle of an internal decision to approve funding in principle; (ii) the bank was not under any legal obligation until there was a written loan agreement; and (iii) the alleged promise was legally ineffective because essential terms, including the maximum draw down, had not been agreed [18]. Mr Carlyle appealed to the Supreme Court. The Supreme Court unanimously allows the appeal, sets aside the interlocutor of the Second Division and remits the case to a commercial judge in the Court of Session to proceed accordingly [38]. Lord Hodge, with whom Lord Neuberger, Lord Kerr, Lord Clarke and Lord Reed agree, gives the judgment. Lord Hodge notes the limited power of an appellate court to reverse the findings of fact of the judge who has heard the evidence [2]. He comments that had he been deciding the matter at first instance, and if the findings of fact record all the material evidence, he might have shared the view of the Second Division that the bank had not entered into a legally binding obligation to provide the development funding [20]. However, when deciding that the trial judge has gone plainly wrong, the appeal court must be satisfied that the judge could not reasonably have reached the decision under appeal [21]. The rationale for this is both that the judge who has heard the evidence will have a deeper insight in reaching conclusions of fact and the different role assigned to the appellate court [22]. The Second Division disagreed with the Lord Ordinary on questions of fact without facing up to the restricted role of the appellate function on such questions [23]. The Lord Ordinary had a reasonable evidential basis for finding on an objective analysis that the bank made a legally binding promise in the telephone call of 14 June 2007 to provide development funding. He might have interpreted the evidence differently and concluded that there was no binding commitment, but he did not have to [25]. The fact that parties envisage that their agreement will be set out in a formal contract in the future does not, by itself, prevent that agreement from taking legal effect [25]. Although Mr Carlyle and the bank knew that the 14 June 2007 commitment would be superseded by more detailed loan agreements, this did not prevent it from having effect as a legally binding promise [26]. The fact that a previous loan transaction between Mr Carlyle and the bank had been conducted differently was not relevant, because in the earlier transaction there had been no buy back clause [30]. It was open to the Lord Ordinary to reach the conclusion he did despite the relatively ill defined nature of the obligation to provide the development funding [29]. The parties had proceeded on the basis that Mr Carlyle would need up to 700,000 for the development of the plot [27]. They were aware of the rates of interest applied to other loans, and the time constraints on the development of the plot [29]. Once the Lord Ordinary was satisfied that the bank had the intention to make a legally binding promise, he was entitled and indeed required to look for ways to give effect to that promise [29]. The pleading of a collateral warranty became a distraction in this case. It was not used as a term of article Either promise or unilateral undertaking would be a suitable description for the independent legal obligation under consideration [33]. In English contract law, the doctrine of consideration gives rise to the concept of a collateral contract, in which one partys promise or representation is given in exchange for the other party entering into the envisaged (separate) contract. In Scots law a unilateral undertaking that is intended to have legal effect, such as a promise, is binding without consideration passing from the recipient of that promise. The promise may be, but does not need to be, collateral to another contract. The issue is simply whether a legally binding obligation has been undertaken [35].
The issues in these appeals relate to the right to a fair trial. Alison McGarrigle had a son, Robert, by her former husband. Robert was subject to a residential supervision order requiring him to live with his father during the week but permitted him to visit his mother on Saturdays. On 14 June 1997 Robert did not return to his fathers address and instead he and his mother went to live with the appellants in a house in Largs. A drinking session took place there on or about the 20 June 1997 at which a number of people including the appellants, Robert and Mrs McGarrigle were present. The next morning she was gone and was never seen by Robert again. She was reported to police as missing on 16 February 1998. The investigation continued but in the meantime, on 17 June 1998, the appellants were convicted of sexual offences including offences against Robert McGarrigle and were sentenced to 6 and 8 years imprisonment respectively. Whilst serving their sentences the appellants were taken by police for questioning on suspicion of conspiracy to murder Alison McGarrigle. They were asked by the officers whether they were involved in her murder, but they both remained silent. Owing to a lack of evidence at that time, proceedings were not commenced against the pair. The appellants were eventually charged in 2005 for the murder of Mrs McGarrigle and remanded in custody. On 10 June 2010 the appellants were found guilty in the High Court of Justiciary at Glasgow of the murder of Mrs Allison McGarrigle between 21 June and 1 September 1997 and of a subsequent attempt to defeat the ends of justice by disposing of her body in the sea. In a separate trial held immediately before, the appellants were found guilty of a series of sexual offences relating to children. Both trials took place in front of the same judge, Lord Pentland, but with different juries. After the verdict in the first trial the Advocate Depute moved for sentence and handed the judge a list of the appellants previous convictions. The judge reserved sentencing for the sexual offences until after the trial for murder was complete. At the time of informing the appellants of this, the judge referred to their records and made comments to them that they were evil, determined, manipulative and predatory paedophiles of the worst sort. The two issues for the Supreme Court were: (1) when the appellants were charged for the purposes of their right to a trial within a reasonable time in terms of article 6(1) of the Convention (the appellants argued that time started to run when they were first questioned in 1998 and therefore there had been a breach of their right); and (2) whether the comments and conduct of the trial judge were such as to breach the appellants right to a fair trial by an impartial tribunal in terms of article 6(1) of the Convention and, if so, whether the act of the Lord Advocate in persevering with the trial was incompatible with the appellants rights under article 6(1). Both issues arose from the refusal of the Appeal Court to grant leave for the relevant grounds of appeal to be argued in the appeal in Scotland. The Appeal Court did however grant permission to appeal its refusal to the Supreme Court. The Supreme Court held that it had jurisdiction to consider the issues on the basis that they were compatibility issues in terms of the Criminal Procedure (Scotland) Act 1995 (as amended by the Scotland Act 2012), issue (1) being an appeal against a decision of the Appeal Court and issue (2) being a reference from the Appeal Court. The court determines the two compatibility issues as follows: (1) that the date when the reasonable time began for the purposes of the appellants article 6(1) Convention right was 5 April 2005; and (2) that the Lord Advocates act in proceeding with the trial on the murder charges was not incompatible with the appellants article 6(1) right to a trial before a tribunal that was independent and impartial. The proceedings will be remitted to the High Court of Justiciary [58]. Lord Hope gives the judgment of the court. The meaning of the word charged has been considered in a number of cases regarding article 6(1), which provides that in the determination of any criminal charge against him a person has the right to a fair trial within a reasonable time and article 6(3)(c) which provides a right to legal assistance for anyone charged with a criminal offence [25 32]. The focus of article 6(3)(c) is on the state of affairs when the suspect is first interrogated, as to wait until the stage is reached when there is sufficient evidence to charge before the suspect has the right of access to a lawyer could seriously prejudice his right to a fair trial. This is in contrast with the reasonable time guarantee of article 6(1): it relates to the running of time, not on what is needed to preserve the right to a fair trial. The rationale is the person should not remain too long in a state of uncertainty. Time runs from the date which the suspects position is substantially affected by the official notification. In the United Kingdom this could be some time after he is first questioned [33 34]. The date from which reasonable time begins is the subject of a separate guarantee from the guarantee that the trial will be fair and falls to be approached independently [36]. The appellants were certainly not at any stage of their interviews charged in the formal sense. They were both asked directly whether they killed Mrs McGarrigle. But, in the context in which these questions were being put, it cannot be said that this amounted to an official notification that they were likely to be prosecuted [37]. In the absence of any evidence to show where, when and how she had died, the police were in no position to initiate criminal proceedings. In August 2003 they received information that led to further enquiries and resulted in the appellants being charged with murder in 2005 [38]. On the issue of apparent bias, the test is contained in Porter v Magill [2001] UKHL 67 and considered in a number of authorities [47 52]. It would only be if the judge expressed outspoken opinions about the appellants character that were entirely gratuitous, and only if the occasion for making them was plainly outside the scope of the proper performance of his duties, that the fair minded and informed observer would doubt the judges ability to perform those duties with an objective judicial mind. The context indicates that nothing of the kind happened in this instance [53 54]. Furthermore, no objection was made by the defence at any point to the fact that Lord Pentland was to preside over the murder trial as well and there are no grounds for doubting his impartiality [55 56].
This appeal is concerned with the employment, by the Secretary of State for Children, Schools and Families, of teachers to work in the European Schools. These are schools set up to provide a distinctively European education principally for the children of officials and employees of the European Communities. The Staff Regulations, made by the Board of Governors pursuant to the Convention defining the Statute of the European Schools, limit the period for which teachers may be seconded to work in those schools to a total of nine years (or exceptionally ten). This is made up of an initial probationary period of two years, and a further period of three years, which is renewable for a further four years (the nine year rule). The principal question in the appeal is whether these arrangements can be objectively justified, as required by the Fixed term Employees (Prevention of Less Favourable Treatment) Regulations 2002 (SI 2002/2034) (the Fixed term Regulations). This was the measure chosen by the United Kingdom to implement Council Directive 1999/70/EC concerning the framework agreement on fixed term work (the Fixed term Directive). The effect of regulation 8 is that a successive fixed term contract is turned into a permanent employment unless the use of such a contract can be objectively justified. Mr Fletcher was employed by the Secretary of State and seconded to work in the European School in Culham, Oxfordshire, from 1 September 1998 until 31 August 2008. After his two year probationary period, he was employed for a further three year period, extended for a further four years, and then an additional one year. In 2007, he claimed that he was a permanent employee by virtue of regulation 8. Mr Duncombe was a teacher at the European School in Karlsruhe, Germany, from January 1996 until 31 August 2006. He too was employed under a series of fixed term contracts to reflect the nine year rule. He brought claims in the Employment Tribunal for wrongful dismissal or pay in lieu of notice, unfair dismissal and a declaration that he was a permanent employee. The Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal all held that the use of the successive fixed term contracts is not objectively justified. The Supreme Court unanimously allows the appeal, holding that it was objectively justified to employ these teachers on the current fixed term contracts and accordingly that these were not converted into permanent contracts by the operation of regulation 8 of the Fixed term Regulations. Lady Hale gives the leading judgment. The teachers complaint is not against the three or four periods comprised in the nine year rule but against the nine year rule itself. In other words, they are complaining about the fixed term nature of their employment rather than about the use of the successive fixed term contracts which make it up. But that is not the target against which either the Fixed term Directive or the Regulations are aimed. Employing people on single fixed term contracts does not offend against either the Directive or the Regulations. [23] The targets against which the Directive and Framework Agreement were directed were discrimination against workers on fixed term contracts and abuse of successive fixed term contracts in what was in reality an indefinite employment. It is not suggested that the terms and conditions on which the teachers were employed during their nine year terms were less favourable than those of comparable teachers on indefinite contracts. [24] It is not the nine year rule which requires to be justified, but the use of the latest fixed term contract bringing the total period up to nine years. And that can readily be justified by the existence of the nine year rule. The teachers were employed to do a particular job which could only last for nine years. The Secretary of State could not foist those teachers on the schools for a longer period, no matter how unjustifiable either he or the employment tribunals of this country thought the rule to be. The teachers were not employed to do any alternative work because there was none available for them to do. [25] It is not a question of whether the Staff Regulations trump the Directive. There is no inconsistency between them. The Staff Regulations are dealing with the duration of secondment, not with the duration of employment. [26]
Section 31 (2) of the Children Act 1989 imposes a threshold which must be satisfied before a care or supervision order can be made in respect of a child. First the child must have suffered or be likely to suffer significant harm; secondly, that harm must be attributable to the care given or likely to be given to the child. If the threshold is crossed then the court will treat the welfare of the child as its paramount consideration when deciding whether to make an order. The issue in this case is whether a child can be regarded as likely to suffer harm if another child has been harmed in the past and there is a possibility that the parent now caring for him or her was responsible for the harm to the other child. The local authority in this case brought care proceedings in respect of three children who are cared for by DJ and JJ. The two oldest are the children of DJ and his former partner, and have always lived with DJ. The youngest child is JJs daughter, her third child with her former partner, SW. The local authority submitted that the three children were likely to suffer significant harm because JJs first child with SW, T J, had died of non accidental injuries in 2004. In earlier care proceedings relating to JJ and SWs second child, who was subsequently adopted, a judge had found that either JJ or SW had caused the injuries to T J and the other had at the very least colluded to hide the truth. In the present proceedings the local authority sought to rely solely on the finding that JJ was a possible perpetrator of the injuries to T J. It submitted that this was a finding of fact sufficient as a matter of law to satisfy the s 31(2) threshold in respect of the three children now cared for by JJ and DJ. The High Court held on a preliminary issue that likelihood of significant harm can only be established by reference to past facts that are proved on the balance of probabilities. Mere possibility was insufficient. The Court of Appeal dismissed an appeal by the local authority but granted permission to appeal to the Supreme Court. The Supreme Court unanimously dismisses the local authoritys appeal. The main judgment is given by Lady Hale, with whom all the justices agree. Lord Wilson expresses disagreement on one point, which Lord Sumption shares. Lord Reed gives an additional judgment, with which Lord Clarke and Lord Carnwath agree. Lord Hope agrees with Lady Hale and Lord Reed. It is a serious matter for the state compulsorily to remove a child from his family of birth. The section 31(2) threshold is an important measure to protect a family from unwarranted intrusion while at the same time protecting children from harm [1] [75]. The wording of Section 31(2) has been the subject of six appeals to the House of Lords and Supreme Court. Those cases have consistently held that a prediction of future harm has to be founded on proven facts: suspicions or possibilities are not enough. Such facts have to be proved on the simple balance of probabilities [36]. This approach is supported by the legislative history of section 31(2) [45 46] [96]. It would be odd if the first limb (actual harm) had to be proved to the courts satisfaction but the basis of predicting future harm did not [47]. Care cases in which the only matter upon which the authority can rely is the possibility that the parent has harmed another child in the past are very rare. Usually there will be many readily provable facts upon which an authority can rely [5]. Even in cases where the perpetrator of injuries could not be identified there may be a multitude of established facts from which a likelihood that this parent will harm a child in the future could be shown. However, the real possibility that the parent caring for the child has harmed a child in the past is not by itself sufficient [54]. In this case there were many potentially relevant facts found in the earlier proceedings against JJ which might have been relevant to an assessment of whether JJ would harm children in the future, such as the collusion with SW which prevented the court from identifying the perpetrator, the failure to protect T J, and the deliberate failure to keep T J away from health professionals [56]. Other relevant matters for the assessment would have been consideration of the household circumstances at the time of T Js death and whether JJs new relationship with DJ looking after much older children was different [53]. As the local authority had chosen not to rely on these facts, however, it would not be fair to the whole family to allow these proceedings to go on. JJ has been looking after these three children and a new baby for some time without (so far as the court is aware) giving cause for concern and, should the local authority wish to make a case that any of these children is likely to suffer significant harm in the future, it will be open to it to bring new proceedings [57]. Lord Wilson, while agreeing with Lady Hale for the most part and in the disposal of the appeal, identified an issue on which he differed from the majority. In his view, since the consignment of a person to a pool of possible perpetrators of injuries to one child could not constitute a factual foundation for a prediction of likely significant harm to another child in his or her care, then as a matter of logic, it could not become part of the requisite foundation in combination with other facts and circumstances [80]. Lord Sumption agreed [92].
This appeal concerns the circumstances in which an asylum seeker should be sent back to the country where he or she first claimed asylum if it is claimed that such a return would expose the asylum seeker to the risk of inhuman or degrading treatment, which is forbidden by article 3 of the European Convention on Human Rights (ECHR). At this stage the appellants account of the risk that they face must be assumed to be true. They are an Iranian national (EH) and three Eritrean nationals (EM, AE, and MA) who have come to the United Kingdom via Italy. In each of their cases Italy is the country responsible for processing their asylum applications according to the relevant EU law, Council Regulation 343/2003 (commonly known as Dublin II). The basis of EHs asylum claim is that he was tortured as a political prisoner in Iran. He is now severely psychologically disturbed and needs treatment. He claims that if he were returned to Italy he would be homeless and without treatment. EM, AE, and MA were left homeless and destitute in Italy. AE and MA, who are women, claim that they were repeatedly raped there, despite having been recognised as refugees. MA has come to the UK with two of her children; a third was separated from the family during the attempt to make it here and has not been found. AEs experiences have traumatised her, and she is suicidal at the thought of being taken back to Italy. Italy is one of a list of countries which is presumed by the United Kingdom to be safe for returning asylum seekers. The Home Secretary therefore must be satisfied that the appellants claims that they will be subject to degrading and inhuman treatment are not clearly unfounded if they are to be allowed to stay in the United Kingdom while they pursue their asylum applications. That is important to the appellants because of the threats to their well being if they were returned to Italy. The Home Secretary certified all of the appellants claims as clearly unfounded because Italy was not in systemic breach of its international obligations to treat asylum seekers with dignity. The Court of Appeal considered that a systemic breach, rather than merely a breach, of those obligations was indeed required before the United Kingdom could decline to return an asylum seeker to Italy. The Court of Appeal reached that conclusion on the basis of a decision of the Court of Justice of the European Union (CJEU), NS (Afghanistan) v Secretary of State for the Home Department. The CJEU is responsible for interpreting EU law, including Dublin II. However, the Court of Appeal read the decisions of the European Court of Human Rights (ECtHR) as requiring only a breach, rather than a systemic breach, of a persons human rights. The ECtHR is responsible for interpreting the ECHR, and belongs to a separate legal system established by the Council of Europe. By virtue of legislation in the UK, decisions of the CJEU are binding on UK courts, while decisions of the ECtHR need only be taken into account. The Court of Appeal therefore felt bound to apply the CJEU case, as it understood it, over the ECtHR cases. Since it held that Italy was not in systemic breach of its duties, it found for the Home Secretary. The Supreme Court unanimously allows the asylum seekers appeals and remits all four cases to the administrative court to determine on the facts whether in each case it is established that there is a real possibility that, if returned to Italy, the claimant would be subject to treatment in violation of the Convention. The Court of Appeal was wrong to consider that only a systemic breach by the receiving country of its human rights obligations would justify not returning an asylum seeker to that country. The CJEUs judgment in NS had to be read according to the context in which it was given. While it did refer to a systemic breach, such a breach was well established on the cases facts. The CJEUs focus was therefore not on the sort of breach that had to be established, but rather on EU member states awareness of such a breach. There was therefore no warrant for concluding that CJEUs judgment was that there had to be a systemic breach; it only meant that a systemic breach would be enough. The CJEU was not calling into question the well established test applied in human rights law, which is that the removal of a person from a member state of the Council of Europe to another country is forbidden, if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of the ECHR [5658]. Indeed, the EU requires its laws to be interpreted in accordance with fundamental rights, such as those guaranteed by the ECHR. And beyond that it is clear that the EU scheme of asylum law in general is to be applied in a way that respects the dignity of asylum seekers, and ensures a basic minimum standard of support. Council Directive 2003/9/EC (commonly known as the Reception Directive) requires that member states provide asylum seekers with at least enough to sustain their health and ability to subsist. And under Council Directive 2004/83/EC (the Qualification Directive), those granted refugee status are not to be discriminated against in terms of access to welfare support, accommodation, and so on [59 60]. These duties coalesce with the positive obligations on members of the Council of Europe who are also member states of the European Union. Article 4 of the EU Charter of Fundamental Rights contains a human rights protection in equivalent language to article 3 of ECHR. The UK, as an EU member state, is obliged to observe and promote the application of the Charter whenever implementing an instrument of EU law. There was no dispute before this Court that the positive obligations under article 3 of ECHR include the duty to protect asylum seekers from deliberate harm by being exposed to living conditions (for which the state bears responsibility) which cause ill treatment. And in R (Limbuela) v Secretary of State for the Home Department the House of Lords held that article 3 ECHR could be engaged where asylum seekers were by the deliberate action of the state, denied shelter, food or the most basic necessities of life [62]. Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his or her removal to that state is forbidden. The evidence about breaches of a positive obligation is more likely to concern systemic failings, but a focus on such failings is only by way of establishing that there is a real risk of a breach of article 3, rather than a distinct hurdle to be surmounted [63].
A, a foreign national, arrived in the UK in 1991. He was later granted indefinite leave to remain, but in 1996 was sentenced to four years imprisonment for sexual offences against a child. In 1998, he was served by the Home Secretary with a notice to make a deportation order [4]. A appealed against the decision and protracted proceedings followed in which A cited risks due to his status as a known sex offender of death or ill treatment (contrary to articles 2 and 3 of the European Convention on Human Rights (ECHR)) should he be deported. As identity was withheld in the proceedings from 2001 onwards [5] [9]. In dismissing As appeal against the Home Secretarys refusal to revoke the deportation order, the First tier tribunal noted that the proceedings were anonymised, thus reducing the risk of As identification. In September 2012 A applied to the Court of Session for judicial review of the Upper Tribunals refusal of permission to appeal. The Secretary of State gave notice that she intended to remove A from the UK before the date fixed for the hearing of the judicial review application. On 7 November 2012 Lord Boyd heard As application for interim suspension of the removal decision and allowed him to amend his application for judicial review by substituting initials for his name and address. Lord Boyd also gave directions under section 11 of the Contempt of Court Act 1981 prohibiting the publication of As name or other identifying details and directing that no picture of him should be published or broadcast [2]; [10] [13]. He refused the application for interim suspension, concluding that A had not established a prima facie case for setting aside the Upper Tribunals decision [14]. The Inner House refused As appeal against that decision [16]. Media organisations had not been notified of and were not represented at the hearing before Lord Boyd. The BBC became aware of the section 11 order and applied for it to be set aside. In refusing the application, Lord Glennie noted that it was accepted that if the fact that A was being deported became known in his country of origin there would be a real risk of his article 3 rights being infringed. That was why an anonymity order had been made by the tribunal. It was necessary to withhold As identity to safeguard his article 3 rights and to preserve the integrity of the court proceedings, since publication of the information would give A grounds for a fresh application to the Home Secretary and frustrate the proceedings [17 18]. A was deported on 14 December 2012 [20]. The BBCs appeal against Lord Glennies decision was refused in May 2013. The Inner House considered that the material before the tribunal justified the conclusion that anonymity would be a significant protection of As article 3 rights and that setting aside the section 11 order would subvert the understanding on which As deportation had been authorised [21]. The appeal raises three issues [3]: (i) Whether the court possesses any common law power to protect the anonymity of a party where rights under the ECHR (given effect by the Human Rights Act 1998 (HRA)) are engaged; (ii) Whether the court acted compatibly with the BBCs rights under article 10 ECHR (which protects freedom of expression), both in terms of the substance of its decision and the procedure followed; and (iii) Whether the section 11 order fell within the scope of section 12 HRA, so that the BBC ought to have been notified and given an opportunity to make representations before it was made. In a unanimous judgment delivered by Lord Reed, the court dismisses the BBCs appeal. Lord Reed explains the importance of the general constitutional principle of open justice. Society depends on the courts to act as guardians of the rule of law, and this in turn necessitates the openness of the courts to public scrutiny. The principle has important consequences for the publishing of reports of court proceedings: open justice is inextricably linked to the freedom of the media to report on court proceedings [23] [26]. But there are exceptions. The courts have an inherent jurisdiction to determine how the principle of open justice should be applied [27] [37] and can permit the identity of a party or witness to be withheld from public disclosure where necessary in the interests of justice [38 41]. Central to the courts evaluation will be the purpose of the open justice principle, the potential value of the information in advancing that purpose, and any risk of harm that its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others [41]. The principle of open justice is protected and qualified by the ECHR as it is in domestic law [42] [54]. But the common law principle remains in vigour even where Convention rights also apply [55 57]. The purpose of section 11 is to support the exercise of the courts power to allow a name or other matter to be withheld in court proceedings, by conferring a statutory power to give ancillary directions prohibiting publication of the relevant information. The use of section 11 is not limited to protecting the public interest in the administration of justice [60], or to cases where members of the public are present in court [61]. Section 12 HRA does not apply to section 11 applications as they are not applications for relief made against any person [62 66]. Fairness nevertheless requires the media to have an opportunity to be heard, but both this and the medias right to an effective remedy are secured by enabling any person affected to seek recall of the order promptly at a hearing inter partes [67] [68]. Whilst article 10 ECHR was engaged in the present case, the arguments in favour of making the order were overwhelming. The tribunal had made a decision, the effect of which was to authorise As deportation, on the basis that anonymity would be a significant protection of his article 3 rights. The courts failure to make the order would have meant that the deportation might create all the risks that the tribunals directions as to anonymity had been intended to prevent. The order was justifiable under article 10, since it was both prescribed by law and necessary in a democratic society in order to protect the integrity of the legal proceedings and As article 3 rights [69] [76]. The order allowing A to withhold his identity was in accordance with the courts common law powers. The section 11 order was made in accordance with the power conferred by that provision. It was not incompatible with the BBCs Convention rights [75 76]. The BBC was able to apply promptly for recall of the order, and its application came before the court two days after the order was made [77].
The appellant ("the wife") used to be married to the respondent ("the husband"), a former solicitor. In 2002, the wife petitioned for a divorce. In response to her financial claims, the husband asserted that all of his ostensible wealth represented assets held on behalf of his clients [4 6]. In 2004, the wife's claims were settled at a Financial Dispute Resolution (FDR) meeting. The settlement order (the 2004 Order) provided that the husband should make a lump sum payment in final settlement of the wife's capital claims (which was eventually paid), and periodical annual payments (which the husband stopped paying in 2008). The 2004 Order included a recital that "the [wife] believes that the [husband] has not provided full and frank disclosure of his financial circumstances (although this is disputed by the [husband]), but is compromising her claims in the terms set out in this consent order despite this in order to achieve finality" (the Recital) [7 9]. In 2007, the wife applied by notice issued within the divorce proceedings to set aside the 2004 Order on the ground that the husband had fraudulently failed to disclose his assets. These proceedings were delayed, largely because in 2008 the husband was charged with serious money laundering offences dating from mid 2005. He was eventually convicted and committed to prison in 2011, and confiscation proceedings against him are ongoing [10 11]. In September 2012, after an eight day hearing, Moylan J set aside the 2004 Order [12 14]. His decision was made on the basis both that (a) there had been material non disclosure by the husband when the 2004 Order was made and, had he made full disclosure, the outcome would have been different, and (b) because the wifes evidence satisfied the criteria in Ladd v Marshall (which govern when fresh evidence may be adduced on appeal) it followed that her application should be allowed [24 25]. The Court of Appeal allowed the husbands appeal. It held that Moylan J had incorrectly applied the Ladd criteria and was wrong to allow the wifes application on that basis [24]. However, it held that the Ladd criteria were relevant in order to establish what evidence the wife could adduce in order to establish material non disclosure by the husband. Applying those criteria to the evidence before Moylan J, and discounting other inadmissible evidence, the Court of Appeal concluded that there was no admissible evidence to support Moylan Js conclusions on material non disclosure [26 29]. The Supreme Court unanimously allows Mrs Gohils appeal and reinstates Moylan Js order. Lord Wilson (with whom Lord Neuberger, Lady Hale, Lord Clarke, Lord Sumption, Lord Reed and Lord Hodge agree) gives the leading judgment. Lord Neuberger gives a short concurring judgment. The husband had suggested that, as a judge of the High Court, Moylan J did not have jurisdiction to set aside an order of the High Court. This argument was not pursued in the Court of Appeal, but the Supreme Court makes the following observations: (a) the Court of Appeal has long recognised that it is an inappropriate forum for inquiries into non disclosure issues raised in proceedings for the setting aside of a financial order; (b) this is shown by the present case, where an intensive fact finding hearing was necessary; (c) there is an urgent need for definitive confirmation of the High Courts jurisdiction to set aside a financial order made in that court; (d) the Supreme Court endorses the conclusion of the Family Procedure Rule Committee in relation to its Setting Aside Working Party, set out in the minutes of its meeting on 20 April 2015 [16 18]. The Recital Words such as those used in the Recital have no legal effect in a financial order in divorce proceedings. The husband owed a duty to the court to make full and frank disclosure of his resources, without which the court would be disabled from discharging its duty under section 25(2) of the Matrimonial Causes Act 1973. One spouse cannot exonerate the other from complying with this duty [19 22]. Criteria in Ladd v Marshall The Ladd criteria have no relevance to the determination of an application to set aside a financial order on grounds of fraudulent non disclosure [32]. The Court of Appeal was wrong to accept an argument that the criteria should apply to determine what evidence could be adduced because: (a) the Court of Appeal would not have conducted the necessary fact finding exercise, so the criteria for determining the admissibility of evidence in that court were irrelevant; (b) the first Ladd criterion presupposes that there has been a trial whereas, in this case, the wifes first opportunity to adduce the evidence was at the hearing before Moylan J; (c) the argument would not apply to an application to set aside a financial order made by a district judge and the evidential criteria should not depend on the level of court, and (d) the argument ignores the fact that, had the wifes claims proceeded to trial in 2004, the duty would have lain on the husband, not on her, to explain his resources [31]. In light of the erroneous approach to the admissibility of the wifes evidence, the dismissal of her set aside application cannot stand [33]. Consequences To decide whether Moylan Js order could be reinstated, it was necessary to consider what admissible evidence was before him and ask whether he would properly have found that the husband had been guilty of material non disclosure in 2004 [33 35]. Through no fault of his own, Moylan J had relied on evidence from the husbands criminal proceedings obtained from sources outside the UK (which had since been held inadmissible and had been discounted by the Court of Appeal) [13 15, 33]. However, even if Moylan J had referred only to the remaining admissible evidence [36 40], he would, in the light of his findings on it, still have concluded that the husband was guilty of material non disclosure [42]. Lord Neuberger agrees that Moylan Js order can be reinstated. Several factors make it clear that the material non disclosure issue should not be remitted, provided that there is no risk of injustice to the husband [49 55]. The court has to be satisfied that: (a) Moylan J would have decided that there had been material non disclosure even if he had not received the inadmissible evidence; or (b) looking at the totality of the admissible evidence, it could safely be concluded that there had been material non disclosure; or (c) if the issue was remitted, the judge could only realistically come to that conclusion in light of the totality of the admissible evidence [56 57]. For the reasons given by Lord Wilson, all three of these requirements were satisfied [58 61].
This appeal arises out of an action for damages for harassment and for an injunction to restrain its continuance. The question at issue is in what circumstances can such an action be defended on the ground that the alleged harasser was engaged in the prevention or detection of crime. Mr Willoughby was employed by one of Mr Hayess companies. In 2002, the two men fell out. In late 2003, Mr Willoughby embarked on a campaign against Mr Hayes centring on allegations of fraud, embezzlement and tax evasion in relation to Mr Hayess management of his companies. This took the form of sending numerous letters to the Official Receiver, the police and the Department of Trade and Industry. These bodies investigated and found no basis in the allegations, but Mr Willoughby continued to press these bodies and made a series of intrusions into Mr Hayess private life. The Protection from Harassment Act 1997 (the Act) makes harassment a civil wrong and a criminal offence, but under s.1(3) of the Act it is a defence for a person to show (a) that it was pursued for the purpose of preventing or detecting a crime; (b) that it was pursued under any enactment or rule of law, or (c) that in the particular circumstances, the pursuit of the course of conduct was reasonable. The trial judge found that Mr Willougbys conduct constituted harassment under s.1(1) of the Act but that he had a defence under s.1(3)(a) because he genuinely believed in the allegations involving Mr Hayes and wished to persist in investigating them. The Court of Appeal allowed Mr Hayess appeal on two main grounds: (1) only the purpose of the conduct not the purpose of the alleged harasser was relevant, and in this case it was not reasonably or rationally connected to the prevention of crime; and (2) the prevention of crime had to be the sole purpose of the alleged harasser, and the intrusions on Mr Hayess privacy were not related to that purpose. The Supreme Court dismisses the appeal by Mr Willoughby by a majority of four to one (Lord Reed Dissenting). Lord Sumption gives the judgment of the Court. There is no distinction between the purpose of the conduct and the purpose of the alleged harasser as such acts have no purpose other than that of their perpetrator. The issue is by what standard that persons purpose is to be assessed [10]. A wholly objective test (adopted by the Respondent) is not consistent with the wording or purpose of the Act. A test of reasonableness was not included in s.1(3)(a), as it was in other sections of the Act. It would also render the general defence of reasonableness in s.1(3)(c) otiose [11]. A wholly subjective test (adopted by the Appellant) is equally problematic [12]. Those who claim to be acting for the purpose of preventing or detecting crime may, at a purely subjective level, entertain views about what acts are crimes and what steps are calculated to prevent or detect them which have no relation to reality. Mere existence of belief, however absurd, in the mind of the harasser that he is detecting or preventing a crime, cannot justify him persisting in a course of conduct which the law recognises as oppressive. Some control mechanism is therefore required, even if it falls short of what is objectively reasonable [13]. The necessary control mechanism is to be found in the concept of rationality, familiar in public law but also increasingly significant in other areas, such as contractual discretions. Rationality is different to reasonableness. Reasonableness is an external, objective standard applied to the outcome of a persons thoughts or intentions. A test of rationality only applies a minimum objective standard to the relevant persons mental processes. It imports a notion of good faith in requiring some rational connection between the evidence and the ostensible reasons for the decision, and an absence of arbitrariness, capriciousness or reasoning so outrageous in its defiance of logical as to be perverse [14]. If the alleged harasser has rationally applied his mind to the material suggesting criminality and formed the view that the conduct said to constitute harassment was appropriate for its detection or prevention, the court will not test his conclusions by reference to what view a hypothetical reasonable man in his position would have formed. If he has not done so but proceeds anyway, he acts irrationally. He will not have a relevant purpose and there will be no causal connection between his purpose and the conduct constituting harassment. Such a test would in any event apply to public authorities. It is not a demanding test, and it is hard to imagine that Parliament could have intended anything less [15]. Applied to the facts, this tests means that after June 2007, Mr Willoughbys conduct against Mr Hayes was more than objectively unreasonable. It was irrational. He was no longer guided by any assessment of evidence, nor was there a rational connection between his supposed purpose and acts. By persisting in pressing his allegations on the Official Receiver and other investigatory bodies long after they refused to deal with him, he was acting in way that was incapable of furthering the alleged purpose [16]. Although not strictly necessary to decide the point, it was also held that for the purpose of s.1(3)(a) the prevention or detection of crime need not be the sole purpose of the alleged harasser, but only the dominant one [17]. Lord Reed (dissenting) agrees that reasonableness is not required under s.1(3)(a), but rejects the idea that Parliament intended to impose a rationality requirement for three reasons: (1) Parliament did not provide for any rationality test. (2) A statute should not be construed as extending criminal liability beyond the limits which Parliament itself enacted it. (3) Criminal liability would turn on the subtle distinction between irrationality and unreasonableness, which could create particular difficulties in giving clear directions to juries [24 28].
This appeal arises from the insolvency and administration of the Lehman Brothers group of companies. Lehman Brothers International (Europe) (LBIE) was the principal European trading company in the group and is incorporated in England as an unlimited company with its head office in London. LBIE is authorised and regulated by the Financial Services Authority (FSA). Its ultimate holding company is Lehman Brothers Holdings Inc (LBHI), incorporated in Delaware and based in New York. LBHI is now in Chapter 11 bankruptcy. LBIE was put into administration by order of the High Court made before the opening of business (at 07.56am) on Monday 15 September 2008: [24]. Many difficulties have arisen in the administration and the administrators have made several applications to the Companies Court for directions. The application which gives rise to this appeal relates to the provisions governing client money, namely chapter 7 (Client money: MiFID business) of the Clients Assets Sourcebook issued by the FSA (CASS 7), made under the Financial Services and Markets Act 2000 (FSMA): [25] [26]. CASS 7 provides for a normal approach and an alternative approach to discharging a firms client money segregation requirements. LBIE adopted the alternative approach. 7.4.16G of CASS 7, among other things, provides that Under the alternative approach, client money is received into and paid out of a firms own bank accounts A firm that adopts the alternative approach will segregate client money into a client bank account on a daily basis, after having performed a reconciliation of records and accounts of the entitlement of each client for whom the firm holds client money with the records and accounts of the entitlement of each client for whom the firm holds in client bank account and client transactions accounts to determine what the client money requirement was at the close of the previous business day. CASS 7 (7.7.2R) further provides that A firm receives and holds client money as trustee (or in Scotland as agent) Where the firm fails, this is known as a primary pooling event (PPE). 7.9.6R provides that If a primary pooling event occurs: (1) client money held in each client money account of the firm is treated as pooled; and (2) the firm must distribute that client money in accordance with CASS 7.7.2R, so that each client receives a sum which is rateable to the client money entitlement calculated in accordance with CASS 7.9.7R. A secondary pooling event occurs on the failure of a third party to which client money held by the firm has been transferred (7.9.14R). 7.9.13R provides that if both a primary pooling event and a secondary pooling event occur, the provisions relating to a primary pooling event are to apply: [44]. In an ideal world, the flawless operation of the scheme created by the CASS 7 rules would ensure that, upon a firms insolvency, the clients would receive back their money in full, free from the claims of the firms creditors. In the imperfect and highly complex real word occupied by LBIE and its numerous clients, there has been a falling short in the achievement of these objectives on a truly spectacular scale. This is a result of two prime causes: first, on the basis of the assumed facts, LBIE failed to identify as client money, and therefore also failed to segregate, vast sums received from or on behalf of a significant number of its clients; second is the failure of another LBIE affiliate, Lehman Brothers Bankhaus AG (Bankhaus) with which LBIE had deposited at least US$1 billion of segregated client money: [27]. Before the administration order, the last internal reconciliation of clients funds took place on the morning of Friday 12 September 2008. This appeal has proceeded on assumed facts and raises three issues concerning the true construction of CASS 7: (i) when does the statutory trust created by 7.7.2R arise; (ii) do the primary pooling arrangements apply to client money held in house accounts; and (iii) is participation in the notional client money pool (CMP) dependant on actual segregation of client money? [128] The Supreme Court dismisses the appeal by a majority (Lords Hope and Walker dissenting as to the second and third issues): the statutory trust under CASS7 arises on receipt of client money; the primary pooling arrangements apply to client money in house accounts; and, participation in the CMP is not dependant on the segregation of client money. As to when the statutory trust arises, the two competing answers are time of receipt and time of segregation of the funds. The Court unanimously holds that the trust arises at time of receipt. Where money is received from a client or from a third party on behalf of a client it would be unnatural, and contrary to the primary purpose of client protection, for the money to cease to be the clients property on receipt, and for it (or its substitute) to become his property again on segregation. It would also be contrary to the natural meaning of the comprehensive language of CASS 7.7.2R. Segregation without a trust would not achieve MiFIDs objective whereas under the alternative approach an immediate trust of identifiable client money does provide protection: [62] [63], [182] [183]. Lord Hope further supports this conclusion on the basis that the same result would be obtained using the law of agency, as it is in Scots law: [7] [14]. As to whether participation in the notional CMP is dependant on actual segregation of the clients money, the answer is to be found in the proper interpretation of CASS 7, in particular 7.9.6R, 7.9.7R and 7.7.2R: [139]. It does not depend on a consideration of any general principles of trust law: [145]. The general scheme of CASS 7 is that all client money is subject to a trust that arises upon receipt of the money. The client money rules are therefore intended to protect all the clients money received prior to a PPE. The distribution rules are intended to protect all the clients money in the event of a PPE, all client money is subject to a statutory trust and where there is a choice of possible interpretations, the court should adopt the one which affords a high degree of protection for all clients: [147]. The language of the relevant provisions of CASS 7 tends to support the claims basis for participation in the CMP (i.e. that no segregation is required). As the linguistic points are not conclusive, it is necessary to stand back from the detail and ask which interpretation better promotes the purpose of CASS 7. This clearly supports the claims basis: [159]. As to whether the primary pooling arrangements apply to client money held in house accounts, it is necessary to decide whether 7.9.6(1)R requires all identifiable client money to be treated as pooled, or only that client money which is held in the firms segregated client accounts. Since an examination of the text shows that there are two possible interpretations of the relevant CASS 7 rule, the correct interpretation is the one which best promotes the purpose of CASS 7 as a whole, namely to provide a high level of protection for client money. To exclude identifiable client money in house accounts from the distribution regime runs counter to this policy. The alternative would provide different levels of protection based on the happenstance of whether the firm has segregated money, which is arbitrary: [164] [165]. The primary pooling arrangements apply to client money in house accounts: [167].
These appeals concern the obligations of insurance companies under various contracts of employers liability (EL) insurance. In particular, the appeals concern the scope of the insurers obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later. The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendants negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employees mesothelioma was caused by exposure to asbestos during a particular policy year. At first instance Burton J held that the policies should all be interpreted as having a causation wording. He therefore held that the liability trigger under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed. A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease contracted during the relevant insurance period); however they concluded that other policies (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma sustained or contracted at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employees body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an employee sustained or contracted mesothelioma during a particular policy period? The Supreme Court dismisses the insurers appeal by a 4 1 majority; Lord Phillips dissenting on the second issue. Lord Mance gives the main judgment. To resolve the meaning of the EL policies it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more generally [19]. Several features point the way to the correct construction. First, the wordings of the policies on their face require the course of employment to be contemporaneous with the sustaining of the injury [20]. Second, the wordings demonstrate a close link between the actual employment undertaken during each period and the premium agreed by the parties for the risks undertaken by the insurers in respect of that period. Third, on the insurers case there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to disease or injury in another later period [24]. Fourth, on the insurers case employers would be vulnerable to any decision by the insurers not to renew the policy. A decision not to renew might arise from the employers complying with their duty to disclose past negligence upon any renewal. Employers who discovered that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease would have such a duty. The insurers could then simply refuse any renewal or further cover [25]. Fifth, the way most of the policies deal with extra territorial issues throws doubt on any suggestion that the wordings are so carefully chosen that a court should stick literally to whatever might be perceived as their natural meaning [28]. Section 1 of the Employers Liability Compulsory Insurance Act 1969 also points the way to the correct interpretation. This states that every employer shall insure, and maintain insuranceagainst liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment. In order to give proper effect to the protective purpose of that legislation, the Act requires insurance on a causation basis [47]. There is no difficulty in treating the word contracted as looking to the causation of a disease, rather than its development or manifestation. The word contracted used in conjunction with disease looks to the initiating or causative factor of the disease [49]. While the word sustained may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later [50]. In relation to the second issue, the question is whether the EL policies cover employers liability for mesothelioma arising under the special rule in Fairchild/Barker [71]. Under that rule the law accepts a weak or broad causal link between the employers negligence and the employees mesothelioma. When construing the EL policies the concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule [74]. The purpose of the EL policies was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies [88]. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurers obligation to indemnify the employer [74]. Lord Phillips dissents on the second issue. The special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. This conclusion is not affected by section 3 of the Compensation Act 2009, which did not alter the jurisprudential basis of the Fairchild/Barker approach [132] [133].
This case concerns a pay protection provision in the 2002 version of NHS Terms and Conditions of Service for Hospital Medical and Dental Staff and Doctors in Public Health Medicine and the Community Health Service (England and Wales) (the NHS Terms). The Appellant is a doctor specialising in oral and maxillo facial surgery. She trained as a dentist in India but later qualified as a doctor and has been in the UK since 1996. From late 2006 to early 2007, the Appellant worked for the Luton and Dunstable Hospital NHS Foundation Trust as a trust grade doctor in oral surgery. She was subsequently employed by the Respondent as a Foundation Year 1 Pre Registration House Officer. That was a training position and was a necessary step to the Appellant qualifying as a consultant. The contract between the Appellant and the Respondent was governed by the NHS Terms. A document called the Pay Circular, to which reference was made in the NHS Terms, set out the basic rates of pay per annum of doctors and dentists in each of fifteen pay grades. Each pay grade had a number of levels of pay (referred to in the NHS Terms as incremental points). The Appellants position with the Luton and Dunstable Hospital NHS Foundation Trust was treated as falling within the lowest pay grade, namely Hospital Practitioner. The pay for that grade was determined, not on the basis of an annual salary, but on the basis of the number of sessions worked. A session consisted of a working period of 3.5 hours. The pay for the post was limited to a maximum of five sessions per week. The appellant in fact only worked two sessions per week. The NHS Terms included a pay protection provision which, in essence, enabled a doctor moving to a lower paid training post to retain his/her previous salary. Paragraph 132 of the NHS Terms provided: Where a practitioner takes an appointment in a lower grade which is recognised by the appropriate authority as being for the purpose of obtaining approved training the practitioner shall, while in the lower grade, continue to be paid on the incremental point the practitioner had reached in his or her previous appointment. Such a practitioner shall receive the benefit of any general pay awards. On reappointment to the higher grade or on appointment to another higher grade, the practitioner's starting salary should be assessed as if the period spent in the approved training post had been continuing service in the previous higher grade Paragraph 135 was an interpretative provision which provided: a. the rate of salary for a part time practitioner shall be taken to be the corresponding point in the salary scale, except for a practitioner employed as a part time medical or dental officer under paragraphs 94 or 105, for whom it shall be the maximum amount appropriate to nine notional half days The question in the present case concerns the meaning of those provisions. The Appellant brought a claim against the Respondent arguing, amongst other things, that there had been an unlawful deduction of her wages contrary to Part 2 of the Employment Rights Act 1996 (a concept that includes a failure to pay an employee what is contractually due to him or her). The Appellant argues that she is entitled to the basic hourly rate she had received whilst working for the Luton and Dunstable Hospital NHS Foundation Trust for each hour worked in her new post for the Respondent. By contrast, the Respondent argues that the Appellants pay protection should be limited to five sessions per week, i.e. the maximum period she could have worked in her previous post. The Employment Tribunal agreed with the Respondent. The Employment Appeal Tribunal reversed that decision. The Court of Appeal (Elias LJ dissenting) restored the decision of the Employment Tribunal. The Supreme Court unanimously allows the appeal and restores the decision of the Employment Appeal Tribunal. The case is remitted to the Employment Tribunal in order to determine the outstanding issues identified in the order of the Employment Appeal Tribunal. Lord Carnwath gives the only judgment. The different approaches adopted by the various judges who have considered this case demonstrate that paragraph 132 of the NHS Terms is not well drafted. It is disturbing that a provision designed to confer important rights on employees should be so obscure. The provision, however, is unlikely to cause problems in the future [21, 22]. The issue in this case has to be resolved by applying the ordinary principles of contractual interpretation according to which the object of the court is to ascertain the intention of the parties by examining the words they used and giving them their ordinary meaning in their contractual context [26]. The critical words in paragraph 132 of the NHS Terms are the practitioner shall continue to be paid on the incremental point the practitioner had reached in her previous appointment. The incremental point is a reference to the relevant point in the scale for the practitioners grade as shown in the Pay Circular. Since, for the Appellants grade (i.e. Hospital Practitioner), that point is expressed in terms of sessional rates, some means must be found to convert those rates into a form which can be applied to the different terms of her training post, in which her periods of work were measured in hours not sessions. [27]. The most obvious way of doing that is by converting the sessional rates to hourly rates [27]. It may be counter intuitive that those rates should not be limited in some way be reference to the number of sessions which were, or could have been, worked in the former post [27]. However, there is nothing in the wording of paragraphs 132 or 135(a) to support such a limitation [28]. The exceptions relating to part time medical and dental officers appointed under paragraphs 94(b) and 105 of the NHS Terms support that construction of paragraph 132. The existence of such a specific limitation makes it more difficult to imply some other unspoken limitation applicable to the Appellants case [28].
The present case concerns a tendering process carried out by the respondent in 2010 in respect of the provision of medical services to health authorities in Scotland. The appellant was the existing supplier of the services in question, but was unsuccessful in a tender competition for a replacement contract. The appellant challenged that decision on the ground that the respondent had breached certain of its duties under the Public Contracts (Scotland) Regulations 2006 (SSI 2006/1), which implemented certain EU Directives. In particular, the appellant complained that: (i) the criteria in the invitation to tender were insufficiently clear; and (ii) that the reasons given for the rejection of the tender bid were unclear and lacking in detail. [18] One of the EU Directives implemented by the Regulations is Directive 2004/18/EC of 31 March 2004, which concerns the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts. The Directive seeks to ensure that the award of contracts by public authorities in the member states is subject to the principles of freedom of movement of goods, freedom of establishment and freedom to provide services, and to other principles derived from those, such as the principles of equal treatment, non discrimination, mutual recognition, proportionality and transparency. In particular, article 2 requires that contracting authorities shall treat economic operators equally and non discriminatorily and shall act in a transparent way. Article 41 entitles unsuccessful candidates to be informed of the reasons for the rejection of their applications. The Court of Justice of the European Union (the CJEU) has explained that the principle of transparency requires that that the award criteria for public contracts must be formulated in such a way as to allow all reasonably well informed and normally diligent tenderers [(RWIND tenders)] to interpret them in the same way. [57] The appellants case was rejected by the Outer House of the Court of Session. There, the Lord Ordinary, Lord Hodge, concluded that the award criteria met the required standard of clarity and that the reasons given by the respondent for rejecting the appellants tender were adequate. The appellants appeal to the Inner House of the Court of Session was refused. [1923] The issues before the Supreme Court on the appeal from the Inner House are: (i) in relation to the clarity of award criteria, whether the lower courts erred in treating the RWIND tenderer as a hypothetical construct, based on the courts objective assessment of the appropriate standard of clarity, rather than on the basis of the evidence of witnesses as to what an actual tenderer did or thought; and (ii) whether the lower courts had erred in concluding that the reasons given to the appellants for the rejection of their tender were adequate. The Supreme Court unanimously dismisses the appeal. Lord Reed gives the only judgment, with which the other Justices agree. The courts below applied the correct legal test to assess the clarity of the award criteria. In these circumstances it was not appropriate for the Supreme Court to interfere with the conclusion which they reached in the light of their evaluation of the evidence. Similarly, in assessing the adequacy of reasons given to the appellant, the lower courts applied the approach laid down by the CJEU, and it is not appropriate for the Supreme Court to interfere with their factual findings. Standard of clarity in award criteria When courts refer to the approach of a reasonable person or, in this case, an RWIND tenderer, they are describing an objective legal standard by reference to a hypothetical person. It follows that it would be misconceived for a party to seek to lead evidence from actual persons on how they would have acted in a given situation or what they would have perceived. [23] The decisions of the CJEU and the opinions of Advocates General in a series of cases also make clear that the RWIND tenderer standard is an objective one. The relevant question is not whether it had been proved that all actual or potential tenderers had in fact interpreted the criteria in the same way, but whether the court considered that the criteria were sufficiently clear to permit of uniform interpretation by all RWIND tenderers. An approach which depends on evidence of the actual or subjective understanding of tenderers would undermine the principle of legal certainty and the need that any review of a tender process be carried out as quickly as possible. [716] Reasons given to unsuccessful tenderers The scope of the duty to give reasons for an unsuccessful tender is described by the Court of First Instance in Strabag Benelux NV v Council of the European Union (Case T 183/00). The court stated that the obligation was fulfilled if tenderers were informed of the relative characteristics and advantages of the successful tenderer and the name of the successful tenderer. The lower courts followed this approach and each concluded that the reasons which had been given to the appellant were adequate since the appellant could have been left in no real doubt as to why it had been unsuccessful, and as to the relative characteristics and advantages of the successful tenderer. [19; 23; 30]
The appeal concerns a proposed development by Crisp Maltings Group Limited (CMGL) at a plant in the area of the North Norfolk District Council (the council). The development comprised two silos and a lorry park with associated facilities on a site close to the River Wensum. The appellant, Mr Champion, is a member of the Ryburgh Village Action Group, which opposed the development. The river is a Special Area of Conservation protected by the EU Habitats Directive (97/92/EC), given effect in the UK by the Conservation and Habitats Species Regulations 2010. Regulation 61, implementing article 6(3) of the Directive, requires that before giving consent for a project likely to have a significant effect on a European site, the competent authority must make an appropriate assessment of the implications for that site. It may agree to the project only after having ascertained that it will not adversely affect the integrity of the European site. Also relevant is the Environmental Impact Assessment (EIA) Directive, given effect by the Town and Country Planning (Environmental Impact Assessment) Regulations 2011. Under the regulations, a competent authority carries out screening to decide if a proposal is likely to have significant effects on the environment. If so, EIA is required. The EIA process involves an environmental statement and public consultation, which informs the decision whether to grant consent to an EIA development. CMGLs planning application of October 2009 included a Flood Risk Assessment (FRA) recognising a risk that surface water runoff from the site would pollute the river. There followed investigation of measures meant to prevent this pollution. From October 2009 June 2010 the council consulted with relevant statutory bodies. It issued a screening opinion on 23 April 2010 stating that EIA was not required. Between July 2010 and January 2011, two new FRAs and an ecological assessment were prepared, which led to the statutory bodies withdrawing their objections. The council decided on 20 January 2011 to give delegated powers to its officers to approve the development subject to conditions. This led to local complaints, including from the appellant, who argued that appropriate assessment and EIA were required. The council decided to refer the application back to committee and asked for further comments from the appellant, who did not respond. At the councils committee meeting of 8 September 2011, planning officers presented a detailed report concluding that appropriate assessment and EIA were not required. The committee resolved to approve the application subject to conditions, including monitoring the rivers water quality. The appellant challenged the consent successfully before the High Court for failure to comply with the EIA and Habitats legislation, but lost in the Court of Appeal. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives a judgment with which Lord Neuberger, Lord Mance, Lord Clarke and Lord Toulson agree. The two issues were the timing of the councils decisions that appropriate assessment or EIA was not required, and the relevance of measures meant to address adverse effects on the river from the site. On the first issue, there is nothing in the Habitats Directive or regulations to support a separate stage of screening in any formal sense. Case law of the Court of Justice of the European Union describes two stages under article 6(3) of the Directive: the appropriate assessment, and the decision in light of it. It used the word trigger to set the threshold for the first stage. The formal procedures in the EIA regulations, including screening, an environmental statement, and mandatory public consultation, have no counterpart in the habitats legislation. Where it is not obvious, the competent authority will consider whether the trigger for appropriate assessment is met, but this is not a screening in the EIA sense. All that is required is that, where there is found to be a risk of significant adverse effects to a protected site, there is an appropriate assessment. In this case, the planning authority and the expert consultees were satisfied that the material risk of significant effects on the river had been eliminated. Though the officers expressed this conclusion by saying that no appropriate assessment was required, there is no reason to think that the conclusion would have been different if they had decided from the outset that appropriate assessment was required. The mere failure to exercise the article 6(3) trigger at an earlier stage does not in itself undermine the legality of the final decision. [37 42] On timing of EIA screening, authorities should in principle adopt screening opinions early in the planning process. [43] Though a negative opinion, lawfully arrived at on the information then available, may need to be reviewed in light of subsequent information, this does not mean that a legally defective screening opinion not to require EIA, or a failure to conduct a screening opinion at all, can be cured by carrying out an assessment exercise outside the EIA regulations. In the present case it was accepted that the councils screening exercise in April 2010 was legally defective: the pollution prevention measures had not been fully identified at that point, so the council could not be satisfied then that mitigation measures would prevent a risk of pollutants entering the river. This was an archetypal case for EIA so that the risks and measures to address them could be set out in the environmental statement and subject to consultation and investigation. That defect was not remedied by what followed: it was not enough to say that the potential adverse effects had now been addressed in other ways. [45 47] On the second issue, the appellant disputed the legality of the councils reliance on mitigation measures, at the stage of granting planning permission, to dispense retrospectively with the requirement for EIA which should have been initiated at the outset. [48] There is nothing to rule out consideration of mitigation measures at the EIA screening stage, but the Directive and the regulations expressly envisage that they will where appropriate be included in the environmental statement. Cases of material doubt should generally be resolved in favour of EIA. [51]. The failure to treat this proposal as EIA development was a procedural irregularity, which was not cured by the final decision. [53] Despite the legal defect in the procedure leading to the grant of planning permission, the court retains a discretion to refuse relief if the applicant has been able in practice to enjoy the rights conferred by European legislation and there is no substantial prejudice. [54] There is nothing to suggest that the councils decision would have been different had the process taken place within the framework of the EIA regulations. There was only one issue of substance: measures to achieve adequate hydrological separation between the sites activities and the river. It is clear from the final report that the statutory agencies involved formed their own view of the measures effectiveness, and that the views of the public were taken into account. At the time the appellant was unable to raise specific concerns that had not been dealt with before the final decision, which remains the case. The appeal is dismissed. [59 62]
Three prisoners brought appeals concerning the circumstances in which the Parole Board is required to hold an oral hearing. Osborn was convicted in 2006 following an incident in which he was said to have brandished an imitation firearm at the home of his estranged wife. He was given a six year prison sentence and was released on licence in February 2009, the halfway point. He was recalled to prison later that day for breach of his licence conditions [18 29]. Booth and Reilly are indeterminate sentence prisoners who have served their minimum terms. In 1981, Booth [30 42] received a discretionary life sentence for attempted murder, with a minimum term of six and a half years. Reilly [43 53] was convicted in 2002 of robbery, attempted robbery and possession of an imitation firearm. He received an automatic life sentence with a minimum term of six years and eight months, which expired in September 2009. Both remain in custody. Each case was considered on paper by the boards single member panel. It decided not to direct the prisoners release or recommend their transfer to open prison conditions. Their solicitors made written representations to the board, disputing its findings and requesting an oral hearing in each case, but those requests were refused. All three sought judicial reviews of the decisions not to offer oral hearings. Only Reilly succeeded in the High Court, which found that the board had breached its common law duty of fairness, and had acted incompatibly with the appellants rights under article 5(4) of the European Convention on Human Rights1 by failing to offer him an oral hearing. This was overturned by the Northern Ireland Court of Appeal. The Supreme Court unanimously allows the appeals and declares that the board breached its common law duty of procedural fairness to the appellants, and article 5(4) of the European Convention, by failing to offer them oral hearings [116]. 1 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The judgment, delivered by Lord Reed, emphasises that human rights protection is not a distinct area of the law based on the case law of the European Court, but permeates our legal system. Compliance with article 5(4) requires compliance with the relevant rules of domestic law [54 56]. The legal analysis of the problem does not begin and end with the Strasbourg case law [63]. Lord Reed sets out guidance (summarised at [2]) on complying with common law standards in this context. The board should hold an oral hearing whenever fairness to the prisoner requires one in the light of the facts of the case and the importance of what is at stake [81]. By doing so, it will act compatibly with article 5(4) [103]. It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but these will often include: (a) where important facts are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility [73 78; 85]; (b) where the board cannot otherwise properly or fairly make an independent assessment of risk, or of how it should be managed and addressed [79; 81; 86]; (c) where it is tenably maintained that a face to face encounter, or questioning of those who have dealt with the prisoner, is necessary to enable his case to be put effectively or to test the views of those who have dealt with him [82]; and (d) where, in the light of the prisoners representations, it would be unfair for a paper decision taken by a single member panel to become final without an oral hearing [96]. The purpose of the oral hearing is not only to assist in the boards decision making, but also to reflect the prisoners legitimate interest in being able to participate in a procedure with important implications for him, where he has something useful to contribute [82]. The likelihood of release or transfer is separate from the question of whether fairness requires an oral hearing [88 89]. When dealing with recalled prisoners cases, the board should bear in mind that they have been deprived of their freedom [83]. For indeterminate sentence prisoners, increased scrutiny should be afforded by the board in assessing whether the risk they present is unacceptable the longer they have spent in prison post tariff [83]. The board must be, and appear to be, independent and impartial [90 91] and guard against any temptation to refuse an oral hearing to save time, trouble and expense [91]. Lord Reed stresses that paper decisions are provisional; the right to request an oral hearing is not an appeal, and the prisoner need only persuade the board that an oral hearing is appropriate [94 95]. The common law duty to act fairly is influenced by the requirements of article 5(4); compliance with the former should ensure compliance with the latter [101 113]. Breach of article 5(4) will not normally result in an award of damages under the Human Rights Act unless the breach has resulted in the prisoner suffering a deprivation of liberty [114 115]. An oral hearing ought to have been offered to the appellants. Osborn and Reilly had advanced various explanations and mitigations [98] and their requests for an oral hearing were mistakenly characterised as appeals [99 100]. In Booths case, input from his psychiatrist at an oral hearing would have been helpful and it was relevant that he had spent so long in custody post tariff [99]. Reillys claim for damages failed it had not been argued that he had suffered any deprivation of liberty as a result of the article 5(4) breach [115].
Supplies of education to students in the United Kingdom are exempt from value added tax (VAT) if they are made by a college of a university within the meaning of Note 1(b) to Item 1, Group 6 of the Value Added Tax Act 1994 (the VAT Act). The appellant (SEL) contends that its supplies of education to students in the United Kingdom were and are exempt from VAT because it was and remains a college of Middlesex University (MU). SEL is a subsidiary of SAE Technology Group BV. Both are part of the SAE group of companies which trades around the world under the name SAE Institute (SAEI). MU is a United Kingdom university within the meaning of the VAT Act, Group 6, Item 1, Note 1(b). It has never had any financial interest in any SAE group company. Nevertheless, the relationship between MU and SAEI has been very close and is a reflection of a series of agreements addressing the nature of that relationship, the validation by MU of SAEI programmes of education and the accreditation of SAE group companies. SEL appealed against assessments raised by the Commissioners for Her Majestys Revenue and Customs (the Commissioners) in respect of its accounting periods 1 May 2009 to 29 February 2012. It has also appealed against subsequent assessments, but these have been stayed by agreement with the Commissioners pending the outcome of this appeal. SELs appeal was allowed by the First tier Tribunal (FTT). The Commissioners appealed that decision to the Upper Tribunal which allowed the appeal. SEL then appealed to the Court of Appeal, this appeal was dismissed. There are two issues for the Supreme Court: first, whether the Court of Appeal adopted the correct approach in determining whether SEL was a college of MU for the purposes of Note 1(b) to Item 1, Group 6 of the VAT Act; and secondly, if it did not, whether, upon application of the correct test, SEL was such a college. The Supreme Court unanimously allows the appeal. Lord Kitchin, with whom the rest of the Court agrees, delivers the judgment. The starting point for a consideration of the proper interpretation of Note 1(b) to Schedule 9, Group 6, Item 1 of the VAT Act must be articles 131 to 133 of the Principal VAT Directive. These make clear that member states must exempt transactions involving the provision of, among other things, university education by bodies governed by public law having such education as their aim. Member states must also exempt transactions by other organisations which they have recognised as having similar objects to those governed by public law and which also have education as their aim [41]. The general objective of the exemptions is to ensure that access to the higher educational services is not hindered by the increased costs that would result if those services were subject to VAT [43]. Parliament has chosen to exercise the discretion conferred upon it by exempting from VAT the provision of education by a United Kingdom university and any college of such a university. The term university is not defined in the VAT Act. However, the conditions under which a body in the United Kingdom is entitled to use the word university in its title are regulated by statute. Over 100 bodies are presently entitled to call themselves a university and they vary greatly in character. A small but nonetheless significant number of them are private and run for profit [46]. It is against the background of the range of possible arrangements between universities and their colleges that the meaning of the phrase college of such a university in Note (1)(b) falls to be determined [47]. In Lord Kitchins judgment the following points are material [47]. First, for its activities to fall within the scope of Item 1(a), any college of a university, as an eligible body, must provide education [48]. Secondly, the supply of educational services is exempt only if it is provided by bodies governed by public law or by other bodies recognised by the member state as having similar objects [49]. Thirdly, there is nothing in Note 1(b) or the broader context which would justify limiting the scope of the phrase any college of such a university to colleges which are a constituent part of a university in a constitutional or structural sense. To the contrary, if satisfaction of such a constituent part test were required, it would effectively exclude commercial providers such as SEL from the exemption for it is a test they will rarely if ever be able to satisfy [50]. Fourthly, it is necessary to examine the characteristics of those educational services and the context in which they are delivered rather than the precise nature of the legal and constitutional relationship between the body that provides them and its university [51]. Lord Kitchin recognises that the presence of a foundation or constitutional document or some other legal relationship establishing the college as a constituent part of the university in a constitutional or structural sense will be sufficient to prove that it is a college of the university within the meaning of Note 1(b), save in an exceptional case. However, that is not a necessary condition. In assessing whether a body is a college of a university the following five questions are also likely to be highly relevant: (i) whether they have a common understanding that the body is a college of the university; (ii) whether the body can enrol or matriculate students as students of the university; (iii) whether those students are generally treated as students of the university during the course of their period of study; (iv) whether the body provides courses of study which are approved by the university; and (v) whether the body can in due course present its students for examination for a degree from the university [53]. If a body can establish the presence of each of these five features, then it is highly likely to be a college of the university within the meaning of Note 1(b). This is not to suggest that that there may not be other cases where the degree of integration of the activities of the body and the university is such that it may properly be described as a college of the university. All will depend on the particular circumstances of the case [54]. Lord Kitchin concludes that the factual findings of the FTT were sufficient to justify its conclusion that SELs activities were integrated into those of MU and that it shared the objects of MU. The FTT was entitled to find that in May 2009 SEL became and thereafter remained a college of MU within the meaning of Schedule 9, Group 6, Item 1, Note (1)(b) of the VAT Act [73].
The appeal arises out of an unfortunate but isolated oversight in the offices of the West London Mental Health NHS Trust at the end of 2010. Mrs Modaresi, who suffers from schizophrenia, was detained under s.2 of the Mental Health Act 1983 (the Act) on 20 December 2010 for assessment. By s.66(1)(a) of the Act she had a right to apply to the First tier Tribunal within 14 days to review her detention. The tribunal would have been obliged to arrange a hearing within 7 days of receiving the application. On the afternoon of 31 December 2010 she gave a completed application form to a member of the hospital staff who faxed it to the appropriate office within the Trust. The administrator was out the office that day and the form was not seen by others in the office. The office was closed over the New Year holiday until 4 January 2011, when the form was found and faxed immediately to the tribunal. Officials in the tribunals office deemed it to be out of time. On 6 January 2011 Mrs Modaresi ceased to be detained under section 2 but became detained for treatment under s.3 of the Act. As such, she was entitled to make a separate application to the tribunal under s.66(1)(b) of the Act, which has no time limit for holding a hearing. Her solicitors wrote to the Secretary of State asking him, in the circumstances, to exercise his discretion under section 67(1) of the Act, which permits the Secretary of State, if he thinks fit, at any time to refer a patient detained under the Act to the tribunal. The Secretary of State noted that the reason for the delay was no fault of Mrs Modaresi, but having considered all the information, refused the application and suggested that she made a separate application as she was now detained under s.3. However, Mrs Modaresi did not pursue that course, and instead issued proceedings for judicial review against the Secretary of State for unlawfully declining to refer the case under s.67. The claim for judicial review was dismissed by the High Court and the Court of Appeal dismissed the appeal. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the lead judgment and Lady Hale adds a concurring judgment. Mrs Modaresi was not deprived of her right of access to a court or tribunal to review her detention. She had such a right under s.3 of the Act. The issue was not the existence of the right but how speedily it might be exercised and whether it was as advantageous as might have been the case if her original application had been accepted [17]. S.67 did not enable the Secretary of State to insist on a hearing in 7 days, as would have been required under s.2. The timing was in the discretion of the tribunal, as it would be under s.3 and s.66(1)(b). There was no evidence to support the submission that the Secretary of State could have been more persuasive in that respect. An application could have been made under s.3 with a request for an urgent hearing in the circumstances. A direct approach to the Tribunal offered a much speedier resolution than the roundabout procedure actually adopted [18]. The practical advantage of a s.67 application was to avoid losing a right to make a second reference under s.3. However, Article 5(4) only required that a patient should have an entitlement to take proceedings to have the lawfulness of his or her detention decided speedily by the court. Mrs Modaresi had this entitlement under s.66(1) in respect of her detention under s.3. If there came a time when having unsuccessfully used up her s.3 application, Mrs Modaresi wanted to make a further application, she was entitled to ask the Secretary of State again under s.67, which he indicated that he would consider doing. The Secretary of State had a discretion under s.67 which it needed to exercise in accordance with normal public law principles and judicial review was available [19]. A reference under s.67 also had the advantages of convenience and accessibility over an alternative route [21, 35]. Lady Hale noted that Mrs Modaresi had undoubtedly been let down by the system through no fault of her own and there were some important lessons to be learnt [27]. The hospital failed to transmit her application to the tribunal on the day it was made [29]. The hospitals failure deprived the patient of the right of access to a tribunal which the law provides, and may well be a breach of the patients Convention rights, and the only safe course is to have a system which ensures this does not happen [31]. The tribunal also failed to accept her application when it arrived. The authorities show that when an Act of Parliament prescribes a period for doing an act which can only be done on a day when the court office is closed, the time is extended to the next day on which it is open [33].
The appellant, Fiona McDonald, is aged 45 and suffers from a personality disorder. In May 2005 her parents purchased 25 Broadway Close, Witney (the property), as a home for her, with the assistance of a loan from Capital Home Loans Ltd (CHL), which was secured by way of a registered legal charge over the property. From about June 2005, the respondents granted the appellant a series of assured shorthold tenancies (ASTs) of the property, the last of which was granted in July 2008 for a term of one year. The appellant continues to live in the property. Owing to financial difficulties with their business, the respondents failed to meet payments on the loan as they fell due. CHL accordingly appointed Andrew Hughes and Julian Smith (the Receivers) to act as receivers of the property. The rent due was regularly paid, but the arrears persisted. The Receivers subsequently served a notice, in the name of the appellants parents, on the appellant on 13 January 2012, indicating that they would be seeking possession of the property and, on the expiry of that notice, they issued proceedings in the name of the parents for possession of the property in the Oxford County Court. His Honour Judge Corrie heard the proceedings on 4 December 2012 and 7 March 2013. He gave judgment on 22 April 2013 and held that the court was not required to consider the proportionality of making an order for possession against a residential occupier where the person seeking possession was not a public authority, and as section 21(4) of the Housing Act 1988 (the 1988 Act) required him to make an order for possession against a person holding under an AST who had been served with an appropriate order, he had to make such an order. The judge added that, had he been entitled to consider proportionality, he would, on balance, have concluded that the claim for possession was disproportionate and dismissed the action. The Court of Appeal dismissed the appellants appeal. The appellant now appeals to the Supreme Court. The Supreme Court unanimously dismisses Fiona McDonalds appeal. Lord Neuberger and Lady Hale give the only judgment, with which the other Justices agree. This appeal raises three questions [1]: (i) whether a court, when entertaining a claim for possession by a private sector owner against a residential occupier, should, in light of section 6 of the Human Rights Act 1998 (the HRA) and article 8 of the European Convention on Human Rights (the ECHR) be required to consider the proportionality of evicting the occupier; (ii) whether, if the answer to question (i) is yes, the relevant legislation, in particular section 21(4) of the 1988 Act, can be read so as to comply with that conclusion; (iii) whether, if the answer to questions (i) and (ii) is yes, the trial judge would have been entitled to dismiss the claim for possession in this case, as he said he would have done. The appellants argument is that the judge should have taken into account the proportionality of making an order for possession for article 8 purposes and, on that basis, could have refused to make an order for possession despite the apparently mandatory terms of section 21(4) of the 1988 Act and section 89(1) of the Housing Action 1980 (the 1980 Act), which limits the period for which a court can postpone an order for possession taking effect [29 30]. It is well established that it is open to the occupier to raise the question of the proportionality of making an order for possession where the party seeking possession is a public authority within the meaning of section 6 of the HRA [34]. In deciding this issue in the case of Manchester City Council v Pinnock [2011] 2 AC 186, the Supreme Court made it clear that nothing in its judgment was intended to bear on cases where the person seeking possession was a private landowner [37]. The appellant contends that the same reasoning applies to a private sector landlord because the court which would grant the order for possession is a public authority for the purposes of the HRA [38 39]. The courts preliminary view is that it is not open to the tenant to contend that article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where there are legislative provisions through which the democratically elected legislature has balanced the competing interests of private sector landlords and residential tenants [40]. Were it otherwise, the ECHR could be said to be directly enforceable as between private citizens so as to alter their contractual rights and obligations [41]. As to the Strasbourg authorities, the admissibility decisions of Di Palma v United Kingdom (1988) 10 EHRR CD 149 and Wood v United Kingdom are inconsistent with the appellants case [48]. While subsequent authorities provide some support for the notion that article 8 is engaged on the making of the order for possession against a residential occupier such as the appellant, there is no support for the proposition that the judge could be required to consider the proportionality of the order which he would have made under legislation such as the 1980 and 1989 Acts [49 59]. The appeal is accordingly dismissed on the first issue [59 60]. As to the second issue, it would not be possible to read section 21(4) of the 1988 Act in the way contended for by the appellant [61 70]. Had the court been persuaded that the appellant was right on the first issue, a declaration of incompatibility under section 4 of the HRA would have been the only remedy [70]. As to the third issue, the judge did not consider whether, if he had found that the claim for possession were disproportionate, there might have been other solutions to the problem than dismissing the claim [71]. In those rare cases where a court is required to assess the proportionality of making a possession order, its powers to suspend or postpone the effect of that order are severely limited by section 89(1) of the 1980 Act [72]. The cases in which it would be justifiable to refuse, as opposed to postpone, a possession order must be very few and far between and could only be cases in which the landlords interest in regaining possession was heavily outweighed by the gravity of the interference in the occupiers right to respect for her home [73]. On the facts of this case, it seems likely that the most the appellant could hope for on a proportionality assessment would be an order for possession in six weeks time, the maximum permitted by section 89(1) of the 1980 Act [75].
The Institute of the Brothers of the Christian Schools (the Institute) was founded in 1680 with the mission to teach children, and its members are lay brothers of the Catholic Church. The question arising in this appeal is whether the Institute is responsible in law (vicariously liable) for alleged acts of sexual and physical abuse of children by its members between 1952 and 1992 at St Williams, a residential institution at Market Weighton for boys in need of care (the School). The Institute did not own the School, which was founded in 1865 by a group of Catholic benefactors and run locally as a reformatory school for boys. In 1933 it became an approved school for boys convicted of custodial offences under a group of managers. Brothers from the Institute taught at the School alongside lay teachers and a brother always acted as headmaster of the School. In 1973 the School became an assisted community home for children in the care of the local authority, managed by the Middlesbrough Diocesan Rescue Society until 1982, and thereafter by the Catholic Child Welfare Society (Diocese of Middlesbrough). In 1990 the headmaster of the School, Brother James, was expelled from the Institute after it was discovered he was guilty of systematic sexual abuse of boys in his care. In 1993 and 2004 he was convicted of numerous counts of serious sexual offences against boys over a period of 20 years. The School was closed in 1994. Claims have been brought by 170 men in respect of abuse to which they allege they were subjected at the School, by Brother James and by other brothers. The claims are against two groups of defendants. The first group consists of the managers of the school from 1973, who inherited the statutory liabilities of the former managers and entered into contracts of employment with the brother teachers (the Middlesbrough Defendants). The second group consisted of members of the Institute (the Institute Defendants). As a preliminary issue, the High Court held that the Institute Defendants were not vicariously liable for the acts of abuse committed by brothers at the School. The Court of Appeal upheld that ruling. The Middlesbrough Defendants appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. It holds that it is fair, just and reasonable for the Institute Defendants to share with the Middlesbrough Defendants vicarious liability for sexual abuse committed by the brothers. The judgment is given by Lord Phillips, with whom the other Justices agree. The law of vicarious liability had developed recently to establish a number of important propositions: It is possible for unincorporated associations (such as the Institute) to be vicariously liable for the wrongful acts of its members It is possible to be vicariously liable even if the wrongdoers act is in breach of the duty he owes to the person liable and even if the act was the criminal offence of sexual assault; and It is possible for two or more different defendants each to be vicariously liable for a single wrongful act [20] The criteria to be demonstrated to establish vicarious liability involved a synthesis of two stages: first, whether the relationship between the member and the Institute was one which was capable of giving rise to vicarious liability; and secondly examination of the connection that linked the relationship between them with the members wrongful act or omission [21]. Both were in issue in this case. The Institute relied on the fact that the Middlesbrough Defendants entered into contracts of employment with the brothers and managed and controlled both them and the School, and contended that the absence of these critical features meant that the relationship between the brothers and the Institute could not give rise to vicarious liability. The Institute was an unincorporated association but because of the manner in which it carried on its affairs Lord Phillips considered that it was appropriate to approach the case as if it was a corporate body existing to perform the function of providing a Christian education, able to own property and other assets through charitable trusts [33]. When two sets of defendants are potentially vicariously liable for the act of a wrongdoer it was necessary to give independent consideration to the relationship with each set in order to decide whether they should be liable [45]. The relationship between the Institute and the teaching brothers at the School had all of the essential elements of that between employer and employee. The teaching activity was undertaken because the brothers were so directed by the Institute; it was in furtherance of the mission of the Institute and the manner in which the brother teachers were obliged to conduct themselves was dictated by the Institutes rules. The fact that they were bound to the Institute by their vows rather than contract, and transferred all their earnings to the Institute, did not make a material difference [56 58]. Thus the first stage of the test for vicarious liability was satisfied. Stage 2 of the test is usually satisfied when a wrongdoer does something he has been required or requested to do pursuant to his relationship with the defendant in a manner that is negligent. But sexual abuse can never be a negligent way of performing such a requirement. Where abusers have been members of a church or religious order, what has weighed with the courts has been the fact that the relationship has facilitated the commission of the abuse by placing the abusers in a position where they enjoyed both physical proximity to their victims and the influence of authority over them as teachers and men of god [84]. The necessary close connection between the relationship between the defendant and the wrongdoer is established where a defendant, whose relationship with the abuser put it in the position to use the abuser to carry on its business, did so in a way which created or significantly enhanced the risk of abuse [86]. In this case the Institute placed the brothers in teaching positions and in particular the position of headmaster, responsible for running the School. The boys living on the premises were particularly vulnerable, not just as children in a school but because they were virtually prisoners and would have difficulty making credible allegations of abuse because of their personal histories [92]. The status of a brother was no doubt treated by the managers as an assurance that children could safely be entrusted to his care. The placement of brother teachers in a residential school thus greatly enhanced the risk of abuse by them if they had a propensity for such misconduct. This was not a borderline case and it was fair just and reasonable for the Institute to share vicarious liability in this case with the Middlesbrough Defendants [94].
In domestic law, the polices power to retain data is controlled by the Data Protection Act 1998 and by a mandatory Code of Practice and accompanying Guidance issued under the Police Act 1995. Individuals also have a right to respect for their private lives under Article 8 of the European Convention on Human Rights (ECHR). The Code of Practice limits the handling of police information to police purposes, limits the circumstances under which data can be shared between police forces, and requires that information originally recorded for police purposes must be reviewed for deletion at prescribed intervals. The Guidance says that the object of such reviews is to ensure that there is a continuing policing purpose for holding the record, the record is accurate, up to date and not excessive, the Data Protection Act has been complied with, and the assessment of the risk level presented by the data subject is correct. Mr Catt, a 91 year old man from Brighton, participates in political protests, including with a group called Smash EDO. Mr Catt is a peaceful protestor, but some members of Smash EDO commit violent offences. The police overtly collect information from Smash EDO public demonstrations. Because Smash EDO has associations with violent crime, information is retained even where no crime has been committed. Events are recorded in Information Reports and some individuals are the subject of a nominal record. These records are stored on a Domestic Extremism Database. At one point there was a nominal record and a photograph for Mr Catt, but both were deleted in separate reviews before these proceedings began. However, information about Mr Catt, including his presence, date of birth, and address, is contained in 107 Information Reports primarily directed to the activities of other people (including at mainstream non Smash EDO protests). Ms T is alleged to have said a homophobic insult to her neighbours friend in July 2010. The police made a Crime Reporting Information System (CRIS) record about the incident and sent her a Prevention of Harassment Letter notifying her that she may be liable for arrest and prosecution should she commit any act or acts amounting to harassment. The practice of the Metropolitan Police is to retain a copy of the letter in their electronic records for seven years, and the corresponding CRIS for 12 years. The police deleted the materials in January 2013 in the course of preparing for this appeal. Mr Catt and Ms T accept that it was lawful for the police to make records of the events as they occurred. However, they contend that the Metropolitan Polices policy in thereafter retaining the data on a searchable database is unlawful because it is contrary to their rights under Article 8 ECHR. Both of their claims failed at first instance. Their claims were heard together in the Court of Appeal, which allowed both appeals. In the case of Mr Catt, the Supreme Court allows the appeal by a majority of 4 1 and restores the first instance judgment. Lord Sumption (with whom Lord Neuberger agrees) gives the leading judgment. Lady Hale delivers a concurring judgment, agreeing with Lord Sumption, and Lord Mance agrees with both Lady Hale and Lord Sumption. Lord Toulson would have dismissed the appeal. In the case of Ms T, the Supreme Court unanimously allows the appeal and restores the first instance judgment. Lady Hale and Lord Toulson (with whom Lord Mance agrees) say that the policy was lawful. Lord Sumption (with whom Lord Neuberger agrees) says that the policy was not originally lawful but became so in this case. Lord Sumption explains that the states systematic collection and storage in retrievable form even of public information about an individual is clearly an interference with private life under Article 8(1) ECHR [3 5]. These appeals therefore turn on whether the retention of the data can be justified under Article 8(2), and in particular whether the retention is (i) in accordance with the law and (ii) proportionate to its objective of securing public safety or preventing of disorder and crime [6]. The in accordance with the law condition under Article 8(2) requires that the applicable rules not be so wide or indefinite as to permit interference with the right on an arbitrary or abusive basis and that their application be reasonably predictable [11]. The retention of data in police information systems in the United Kingdom is in accordance with the law: there are some discretionary elements in the scheme, but this is inevitable, and the space of discretionary judgment is limited and subject to judicial review; further, future disclosure is limited by comprehensive restrictions [13 17]. Lady Hale [47 49], Lord Mance [58 59] and Lord Toulson [60] all agree that the real issue in these appeals is proportionality. Proportionality: Mr Catt Lord Sumption holds that the interference with Mr Catts private life is minor: the information stored is personal but not intimate or sensitive; the primary facts recorded have always been in the public domain, and it is known that the police records them; there is no stigma attached to the inclusion of his information in the database as part of reports primarily directed to the activities of other people; the material is usable and disclosable only for police purposes and in response to requests made by Mr Catt himself under the Data Protection Act; and the material is regularly reviewed for deletion according to rational and proportionate criteria contained in the publicly available Code of Conduct and accompanying Guidance [26 28]. There are numerous proper policing purposes to which the retention of evidence of this kind makes a significant contribution. The longer term consequences of restricting the availability of this method of intelligence gathering to the police would potentially be very serious, and the amount of labour required to excise information relating to persons such as Mr Catt from the database would be disproportionate [29 31]. Lady Hale agrees with Lord Sumptions analysis of the case of Mr Catt [56], though adds that it would have been disproportionate to keep a nominal record about Mr Catt since he has not been and is not likely to be involved in criminal activity himself and the keeping of such records has a potentially chilling effect on the right to engage in peaceful public protest [50 52]. Lord Mance agrees with both Lord Sumption and Lady Hale [58]. Lord Toulson would have dismissed the appeal in the case of Mr Catt. He does not think that the evidence given by the police explains why it is necessary to retain for many years after the event information about someone about whom they have concluded that he was not known to have acted violently. He notes in particular that information was retained about Mr Catts attendance at mainstream political protest events and does not see how this could be thought necessary and proportionate [65 66]. The suggestion that it would be over burdensome for the police to have to review information about individuals such as Mr Catt was not supported by the evidence, especially since the police already conduct regular reviews [67 68]. Proportionality: Ms T Lady Hale [54 56] and Lord Toulson [76] both say that retaining information about previous harassment complaints serves a vital purpose, particularly in domestic abuse cases, and it is not unlawful for the police to adopt a standard practice of retaining such information for several years, provided that the policy is flexible enough to allow it to be deleted when retention no longer serves any useful policing purposesas in fact happened in this case [76]. Lady Hale notes that the Information Commissioner could not have secured the withdrawal of the Prevention of Harassment Letter and that is presumably why these proceedings were launched [53]. Lord Mance agrees with Lady Hale and Lord Toulson, but adds that even if the policy were originally inflexible, he would still have allowed the appeal for the reasons given by Lord Sumption [59]. Lord Sumption says that the Prevention of Harassment Letter, while in this case unnecessarily accusatorial, clearly serves a legitimate policing purpose, but the standard period of retention applied by the Metropolitan Police is wholly disproportionate in light of the trivial nature of the incident in this case. However, Ms Ts Article 8 rights have not been violated because the material was in fact retained for only two and a half years, a period at the far end of the spectrum but not disproportionate [42 44]. The dispute could have been more appropriately resolved by applying to the Information Commissioner [45].
It can be a condition of release from prison of certain medium or high risk prisoners that they must live at Approved Premises (APs). APs are single sex establishments. There are 94 APs for men, distributed around England and Wales including several in London. There are only 6 APs for women, who constitute 5% of the prison population, and none of them is in London or in Wales. This means that women are much more likely than men to be placed in an AP which is far from their homes and communities. In 2004 the appellant was sentenced to life imprisonment with a tariff of 11 years and 3 months, which was due to expire in November 2015. She anticipated that on her release she would be required to live at an AP, which would necessarily be at a considerable distance from her family in London. In 2013 the appellant brought proceedings seeking a declaration that the current provision of APs amounted to unlawful sex discrimination, contrary to the Equality Act 2010 (the EA) and her rights protected by articles 8 and 14 of the European Convention on Human Rights, and that the Secretary of State had acted in breach of the public sector equality duty (PSED) under section 49 EA by failing to have due regard for the need to eliminate discrimination against women in the provision of APs. In the High Court, Cranston J dismissed the discrimination claim but granted a declaration that the Secretary of State had failed to discharge the PSED. The Secretary of State has not appealed that declaration. The appellants appeal against the finding of no discrimination was dismissed by the Court of Appeal. Since that time, she has been released from prison and required to live in an AP in Bedford. The appellant has brought a discrimination claim in the county court which has been stayed pending the outcome of these proceedings. The Supreme Court unanimously allows the appellants appeal to the extent of granting a declaration that provision of APs constitutes direct discrimination against women which is unlawful unless justified, and that the Secretary of State has yet to show such justification. Lady Hale, with whom all the other Justices agree, gives the only judgment. APs are commissioned rather than directly provided by the Secretary of State. However, under s 29(6) EA, a person exercising a public function such as this must not do anything that constitutes discrimination, harassment or victimisation. It is not necessary for the appellant to show that every female prisoner required to live at an AP has suffered the detriment of being placed at an AP far from her home in order to establish a case of direct discrimination on grounds of sex [29 31]. Nor are there differences between the circumstances of male and female prisoners required to live in APs, which are material to the issue of accommodating them close to home. In this respect their circumstances are comparable, and the risk of being placed far from home is much greater for women than for men [32]. The reason for this is not any deliberate desire to treat the women less favourably than the men but a function of the much smaller numbers of female offenders and the policy decision that the particular vulnerability of women required to live in an AP means that all APs should be single sex [33]. The appellants case is one of direct rather than indirect discrimination [43]. Direct discrimination can only be justified in certain limited and defined circumstances, including those set out in paragraph 26 of Schedule 3 to the EA. Paragraph 26(2) relates to the provision of separate and different services for men and women, and provides that these will not contravene s 29 if (a) a joint service for persons of both sexes would be less effective, (b) it is not reasonably practicable to provide a service which is not different, and (c) the limited provision is a proportionate means of achieving a legitimate aim [24, 34]. There is no dispute that in relation to APs, providing a joint service would be less effective. The appellant also accepts that the much lesser extent to which women require APs makes it not reasonably practicable to provide the same number of APs for each sex [38]. The crucial question is whether the limited provision for women is a proportionate means of achieving a legitimate aim [39]. Saving cost is a legitimate objective of public policy but if a benefit is to be limited to save costs it must be limited in a non discriminatory way [40]. The appellant accepts that in principle the different provision for men and women might be justified but the Ministry of Justice has never properly addressed its mind to the problem of providing sufficient and suitable places in APs for women which achieve, so far as is practicable, the policy of placing them as close to home as possible. There are other options which could have been considered, such as replacing large womens APs with smaller units more widely spread, or replacing one or more of the existing womens APs with APs closer to the areas where many women offenders have their homes, or considering alternative forms of accommodation for women released on licence [41]. It is for the Secretary of State to show that the discrimination is justified and, in the light of the breach of the PSED, she has so far failed to do this [42]. The Supreme Court therefore allows the appeal to the extent that it makes a declaration that the provision of APs in England and Wales constitutes direct discrimination against women contrary to s 13(1) EA, which is unlawful unless justified under paragraph 26 of Schedule 3 to the EA. No such justification has yet been shown by the Secretary of State. Individual women who are less favourably treated as a result of the provision of APs may bring sex discrimination claims in the county court but it will be open to the Secretary of State to resist such claims on the ground that the provision is justified under paragraph 26 [45].
On 9 September 1988, the Appellant (SerVaas) entered into an agreement with the Iraqi Ministry of Industry for the supply of equipment, machinery and related services required for the commissioning of a state owned copper and brass processing factory in Iraq. On 2 August 1990 Iraq invaded Kuwait and on 4 August 1990, the assets of Rafidain Bank (Rafidain) in the UK were frozen in accordance with a United Nations sanctions regime. On 13 August 1990 SerVaas terminated the agreement and subsequently commenced proceedings in the Paris Commercial Court against the Ministry to recover money due under the agreement. It gave judgment in favour of SerVaas for US$14,152,800 (the Judgment). The Judgment was recognised in the Netherlands and SerVaas recovered US$966,515 by partial enforcement there against Iraqs assets. In July 2002, SerVaas received US$6,736,285 from the UN Claims Commission by way of compensation for losses caused by Iraq as a result of the invasion of Kuwait. In May 2003, the regime of Saddam Hussein in Iraq fell. On 22 May 2003 the UN Security Council passed Resolution 1483 establishing the Development Fund for Iraq (DFI). On 21 November 2004, Iraq made a debt cancellation agreement with government creditors comprising the Paris Club. In December 2004, Iraq began a process of debt restructuring with its commercial creditors and the creditors of other specified Iraqi entities, including Rafidain under the auspices of the Iraq Debt Reconciliation Office (the IDRO Scheme). Rafidain, in the meantime, had had a winding up petition presented in respect of it by the Bank of England, in relation to which Provisional Liquidators had been appointed in respect of its UK assets, but which petition had been adjourned generally. On 26 July 2005, Iraq announced an offer to repurchase claims for the commercial creditors of specified Iraqi debtors, including Rafidain, where claims arose before 6 August 1990. In May 2006, Iraq issued an invitation to tender claims for cash purchase and for exchange. Thereafter Iraq took assignments of certain debts owed to Rafidains creditors by Rafidain in accordance with the IDRO Scheme. On 3 April 2008, a scheme of arrangement for the distribution of assets held by the Provisional Liquidators to Rafidains creditors was sanctioned (the Scheme). By 19 August 2009, Iraq had submitted claims in the Scheme which were admitted in the sum of US$253.8 million (the Admitted Claims). The original commercial debts constituting the Admitted Claims were acquired by Iraq by way of assignment from existing creditors of Rafidain. On 4 November 2009, SerVaas obtained an order registering the Judgment in England and Wales against the Ministry under the Civil Jurisdiction and Judgments Act 1982 (the Registration Order). It was served on Iraq on 2 May 2010 and became enforceable against the Ministry and Iraq in England and Wales on 2 September 2010. On 11 October 2010 Iraqs US lawyers responded to a request from the Scheme Administrators by stating that the dividend payment on the Admitted Claims should be paid to the account in the name of the DFI with the Federal Reserve Bank in New York. As at November 2010, the debt due in respect of the Judgment is said to have amounted to US$34,481,200.49. In the meantime on 7 October 2010 Mann J granted an application by SerVaas lifting the stay on proceedings against Rafidain and made an order preventing Rafidain, the Provisional Liquidators and the Scheme Administrators from making any payment to Iraq under the Scheme in respect of the Admitted Claims or recognising or giving effect to any assignment or transfer of the Admitted Claimant to a third party which would have the effect of reducing the amount payable to Iraq to an amount less than the Judgment debt. On 13 October 2010 SerVaas issued an application for a Third Party Debt Order, that is, an order that the debts payable to Iraq by Rafidain by way of dividend under the Scheme be instead paid to SerVaas insofar as necessary to satisfy the Judgment. On 30 November 2010, the Charg dAffaires and Head of Mission of the Embassy of Iraq in London signed a certificate (the Certificate) that the Admitted Scheme Claims have never been used, are not in use and are not intended to be for use for any commercial purpose. Iraq applied to discharge the injunction on the ground that monies due to Iraq by Rafidain were immune from execution by virtue of section 13(2)(b) of the State Immunity Act 1978. In the High Court, Arnold J held that the Admitted Claims were immune from execution by reason of s.13(2)(b) and (4) because they were not property which was for the time being in use or intended for use for commercial purposes. By a majority, the Court of Appeal dismissed SerVaas appeal. SerVaas appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Whether property is for the time being in use or intended for use for commercial purposes within the meaning of s.13(4) of the State Immunity Act 1978 does not depend on whether that property has in the past been used for commercial purposes. Lord Clarke gives the leading judgment with which Lord Phillips, Lady Hale, Lord Sumption and Lord Reed agree. It was common ground that (a) the monies payable under the Scheme are a debt and a chose in action and as such are property within the meaning of s.13(2)(b); (b) that Iraqs state intention is to transfer the proceeds of the Admitted Claims to the DFI; (c) that, the Certificate creates a rebuttable presumption that the Admitted Claims are not in use or intended for use for commercial purposes; (d) that the onus lies on SerVaas to show a real prospect that it can rebut that presumption; and (e) that the debts were intended for use for sovereign and not commercial purposes. As these are summary proceedings, the issue is whether there is any real prospect of SerVaas rebutting the presumption. The central question in this appeal is therefore whether the nature of the origin of the debts is relevant to the question whether the property in question was in use for commercial purposes. It is not. This conclusion is based on the language of s.13(4) and on previously decided domestic and comparative authority. As to language, s.13(4) should be given its ordinal and natural meaning having regard to its context and it would not be an ordinary use of language to say that a debt arising from a transaction is in use for that transaction. Parliament did not intend a retrospective analysis of all the circumstances which gave rise to property but an assessment of the use to which the state had chosen to put the property. The language of s.13(4) can also be contrasted with other sections of the Act. As to authority, Lord Diplock in Alstom v Republic of Columbia [1984] AC 580 distinguished between the origin of the funds on the one hand and the use of them on the other. Various decisions of the American Federal courts of appeals and of the Court of Appeal in Hong Kong also support this distinction.
The question in this case is whether the respondent local authority were entitled to be satisfied that the appellant, Ms Haile, became homeless intentionally. If the authority were not satisfied that she became homeless intentionally (section 193(1) of the Housing Act 1996), then they were under a duty to secure that accommodation was available for her occupation (section 193(2)). By section 191(1) of the 1996 Act: a person becomes homeless intentionally if he deliberately does or fails to do anything in consequence of which he ceases to occupy accommodation which is available for his occupation and which it would have been reasonable for him to continue to occupy. The appellant surrendered her tenancy of a bedsit in a hostel on 25 October 2011. She moved to temporary accommodation, which ended in November 2011 when she was asked to leave because of overcrowding. She then applied to the respondent authority for accommodation as a homeless person. On 15 February 2012 she had a baby daughter. Had she still been living in the hostel, she would have had to leave, as only single persons were allowed to reside there. On 1 August 2012 the authority decided that the appellant was homeless, eligible for assistance, and had a priority need, but that she became homeless intentionally. On 31 January 2013, a decision to the same effect was made by a review officer. The basis of the finding was that she had surrendered her tenancy of the room in the hostel and in consequence had ceased to occupy accommodation which was available for her occupation, and which it would have been reasonable for her to continue to occupy until she gave birth. Her contention that she would have had to leave the hostel in any event when she gave birth was regarded as irrelevant. Her appeal was dismissed by the County Court and the Court of Appeal. Before the Supreme Court, she argued that the birth of her baby broke the chain of causation between her intentionally leaving the hostel, and her state of homelessness when her application was considered. The appeal invited the court, if necessary, to depart from the House of Lords decision in Din v Wandsworth London Borough Council [1983] 1 AC 657. The Supreme Court allows the appeal by a majority of 4 1 (Lord Carnwath dissenting). Lord Reed gives the lead judgment, with which Lord Neuberger, Lady Hale, and Lord Clarke agree. Lord Neuberger adds a concurring judgment. Lord Reed reasons that the requirement in section 193(1) is meant to prevent queue jumping by persons who, by intentionally rendering themselves homeless, would obtain a priority in the provision of housing to which they would not otherwise be entitled. It is in relation to the current state of being homeless that one asks, did the applicant become homeless intentionally? [22 24] Section 193(1) must therefore be understood as being concerned with whether the applicants current homelessness was caused by intentional conduct on his part. This depends, first, on whether he deliberately did or failed to do anything in consequence of which he ceased to occupy accommodation meeting the requirements of section 191(1). If yes, the further question arises under section 193(1) whether the appellants current homelessness was caused by that intentional conduct. [25, 28] Thus, section 193(1) is read as meaning the local authority are not satisfied that [the applicant is homeless because] he became homeless intentionally. [27] Din concerned the interpretation of the definition of becoming homeless intentionally in section 17(1) of the Housing (Homeless Persons) Act 1977. The decision that the elements of that definition were to be considered as at the time when the applicant ceased to occupy accommodation meeting the requirements of the definition is still correct. It also remains true that if the definition is satisfied at that point in time, subsequent hypothetical events are immaterial. Finally, the conclusion in Din that there must be a continuing causal connection between the deliberate act satisfying the definition of intentional homelessness, and the homelessness existing at the date of the local authoritys inquiry, remains good law. [38, 40, 59 60] Later authorities applied that principle and provide examples of events interrupting the causal connection, such as marital breakdown. [44, 62] In the present case, the review officer did not consider whether the cause of Ms Hailes current state of homelessness was her surrender of her tenancy of the room in the hostel. The birth of the baby meant that she would be homeless, at the time her case was considered, whether or not she had surrendered the tenancy. She had not jumped the queue as a result of surrendering the tenancy. [66 67] Lord Neuberger agrees with Lord Reeds analysis, [69] and adds some reasons of his own. Lord Carnwath, in his dissenting judgment, would have dismissed the appeal. In his view the reasoning of the review officer was an orthodox reflection of the majority approach in Din. [89]
In December 2001 the Appellant, Paul McInnes, was convicted at the High Court of the Justiciary in Glasgow in respect of an assault outside a hotel in Duntocher, Dunbartonshire. He was sentenced to eight years imprisonment. The crucial issue at the trial was the identification of the persons who participated in the assault. The prosecution evidence in the case included the statement of Mr Brian Pearce, a steward at the nearby hotel who described how he witnessed the Appellant assault the victim. At the trial, Mr Pearce described how he witnessed the Appellant administer a kick to the head of the victim of the assault. Prior to the Appellants criminal trial, Mr Pearce failed to correctly identify the Appellant at two separate identity verification parades. On the first occasion (when the Appellant did not participate in the parade), Mr Pearce identified a person other than the Appellant as the perpetrator of the assault. On the second occasion (when the Appellant did participate), Mr Pearce identified a police stand in as the perpetrator. The prosecution failed to disclose either failed identification to the Appellant in advance of his trial. The Appellants defence were of the view that if they had been in possession of the information relating to the failed identification parades it would have enabled them to more effectively attack the reliability of Mr Pearces evidence at trial and that this may have affected the outcome of the proceedings. Following discovery of this omission, the Appellants case was referred to the High Court of Justiciary. The Appellant lodged a Devolution Minute contending that the failure of the prosecution to disclose the relevant information had rendered his trial unfair contrary to Article 6 of the European Convention on Human Rights and constituted a miscarriage of Justice. The High Court of Justiciary dismissed the Devolution Minute, holding that it could not be said that the non disclosure gave rise to a real risk of prejudice. The Appellant appealed to the Supreme Court on the basis that the High Court of Justiciary had erred in applying the wrong legal test. Rather than enquiring as to whether there was a real risk of prejudice it was contended that the court should simply have considered whether disclosure could have made a difference to the outcome of the prosecution. The Supreme Court unanimously dismisses the appeal, with Lord Hope delivering the leading judgment of the Court. The law on disclosure is reasonably well settled. The prosecution must disclose any material which might materially weaken its case or strengthen the defence. Accordingly, all police statements as a class must be disclosed [para [1] per Lord Hope]. The Courts jurisdiction in this case was confined to analysing whether the High Court of Justiciary had applied the correct legal test. The application of the test to the facts of the case was exclusively within the jurisdiction of the High Court of Justiciary [para [18] per Lord Hope]. Two questions arise for determination in this type of case. Firstly, whether the information is of a type that must be disclosed. In respect of police statements the answer to this question is clearly affirmative [para [19] per Lord Hope]. Secondly, whether, taking all the circumstances of the trial into account, there was a real possibility that the jury would have arrived at a different verdict if the relevant information had been disclosed [para [20] per Lord Hope]. The question which the appeal court must ask itself is whether after taking account of all the circumstances of the trial, including the non disclosure in breach of the appellants Convention right, the jurys verdict should be allowed to stand. The question will be answered in the negative if there was a real possibility at a different outcome if the jury might reasonably have come to a different view on the issue to which it is directed its verdict if the withheld material had been disclosed to the defence [para [24] per Lord Hope; see also paras [30] [31] per Lord Rodger and paras [35] and [38] per Lord Brown]. The test to determine whether there has been a fair trial in terms of Article 6 is the same that is to be applied to determine whether there has been a miscarriage of justice [para [23] per Lord Hope]. It is clear from the judgment of the High Court of Justiciary that it applied the correct legal test [para [25] per Lord Hope].
The question raised on this appeal is whether a person released from prison on a home detention curfew, and then recalled to prison under section 255 of the Criminal Justice Act 2003, has rights pursuant to article 5(4) of the European Convention of Human Rights. Article 5 protects the right to liberty, and article 5(4) confers on an individual who has been deprived of their liberty an associated right to challenge that deprivation before a judicial body. On 5 October 2010, the appellant, Stuart Whiston, was sentenced to 18 months in prison for robbery. He was entitled to automatic release on licence after serving half his sentence on 5 July 2011. However, on 21 February 2011, he was released on licence under a so called home detention curfew pursuant to section 246 of the 2003 Act. On 7 April 2011, the Secretary of State decided to revoke the licence under section 255 of the 2003 Act, because the appellants whereabouts could no longer be monitored in the community, and he was recalled to prison. The decision of the Secretary of State was not subject to any statutory judicial control or review. The appellant contends that, as a result of the licence granted on 21 February 2011, he regained his liberty, and the subsequent revocation of his licence and his consequent recall to prison on 7 April 2011 therefore constituted a deprivation of his liberty which infringed article 5(4). The Secretary of State argues that, at least where the sentence in question is determinate, in any case where a prisoner who has been released on licence is recalled to prison during the currency of his requisite custodial period, the requirements of article 5(4) are satisfied by the original sentence lawfully passed by the court by which he was originally imprisoned. The Supreme Court unanimously dismisses the appeal. Lord Neuberger, with whom Lord Kerr, Lord Carnwath and Lord Hughes agree, gives the main judgment. Lady Hale gives a concurring judgment. Under Strasbourg jurisprudence, where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, he is not, at least in the absence of unusual circumstances, able to challenge his loss of liberty during that term on the ground that it infringes article 5(4). Where the Secretary of State exercises her discretion to release a prisoner before the end of the requisite custodial period of their sentence, article 5(4) is not infringed if that licence is subsequently revoked. All the statutory provisions relevant to this appeal are in the 2003 Act, as amended most recently by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Where a person has been convicted and given a determinate prison sentence of twelve months or more (a sentence period), section 244(1) provides that, subject to certain specified exceptions, once he has served half his sentence it is the duty of the Secretary of State to release him on licence. A prisoner may also be released on licence during the requisite custodial period under section 246(1). A licence, whether under section 244 or 246, remains in place until the end of the sentence period, unless the licence is revoked and the person subject to the licence (the licensee) is recalled. The Secretary of State has the power to revoke a licence and recall a licensee back to prison pursuant to two different statutory provisions [3 8]. First, section 254(1) of the 2003 Act gives the Secretary of State a general power to revoke any licence and to recall the licensee to prison. Where the power of revocation is exercised under section 254(1), the licensee is entitled to be told the reasons for his recall and to make representations to the Secretary of State, and, ultimately, to the Parole Board. Secondly, section 255(1) confers a specific power on the Secretary of State to revoke a section 246 licence. This power of recall can only be exercised until the end of the requisite custodial period, when the licensee would have been entitled to be let out on licence as of right. Unlike the position in relation to the section 254 power of recall, there is no provision for review by the Parole Board of the exercise of the Secretary of States section 255 power of recall [9 10]. Under Strasbourg jurisprudence, where a person is lawfully sentenced to a determinate term of imprisonment by a competent court, there is (at least in the absence of unusual circumstances) no question of his being able to challenge his loss of liberty during that term on the ground that it infringes article 5(4). This is because, for the duration of the sentence period, the lawfulness of his detention has been decidedby a court, namely the court which sentenced him to the term of imprisonment [38]. On this approach, article 5(4) could not normally be invoked in a case where, in relation to those serving determinate terms, domestic discretionary early release provisions are operated by the executive. The notion that article 5(4) is satisfied by the original sentence appears entirely principled, and the consequence that a person under such a regime has to rely on his domestic remedies, at least unless other Convention rights are engaged, is not unreasonable in practice [40]. The common law should be well able to afford appropriate protection to the rights of people in the position of Mr Whiston without recourse to the Convention [45]. Consequently, in so far as it held that article 5(4) was engaged by the revocation of a mandatory licence, the House of Lords in Smith and West [2005] 1 WLR 350 were incorrect and the observations of Lord Brown in R (Black) v Secretary of State for Justice [2009] 1 AC 949 are wrong in so far as they suggest that the law of the United Kingdom in relation to article 5(4) differs from the Strasbourg jurisprudence [46]. Lady Hale agrees that the revocation of a discretionary licence does not infringe article 5(4). However, Lady Hale holds that the present law draws a principled distinction between those determinate prisoners who have reached the point in their sentence at which they are entitled to be released on licence and those who have not. If the former are recalled from their licence, and their representations to the Secretary of State are unsuccessful, they are entitled to have their case referred to the Parole Board. The latter, whose release on licence are discretionary, are not [50]. Once a prisoner has passed the point of mandatory release on licence, the basis for any later recall and detention is the risk of reoffending rather than the original order of the court, and, therefore, article 5(4) applies [52].
These appeals concern the obligations of insurance companies under various contracts of employers liability (EL) insurance. In particular, the appeals concern the scope of the insurers obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later. The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendants negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employees mesothelioma was caused by exposure to asbestos during a particular policy year. At first instance Burton J held that the policies should all be interpreted as having a causation wording. He therefore held that the liability trigger under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed. A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease contracted during the relevant insurance period); however they concluded that other policies (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma sustained or contracted at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employees body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an employee sustained or contracted mesothelioma during a particular policy period? The Supreme Court dismisses the insurers appeal by a 4 1 majority; Lord Phillips dissenting on the second issue. Lord Mance gives the main judgment. To resolve the meaning of the EL policies it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more generally [19]. Several features point the way to the correct construction. First, the wordings of the policies on their face require the course of employment to be contemporaneous with the sustaining of the injury [20]. Second, the wordings demonstrate a close link between the actual employment undertaken during each period and the premium agreed by the parties for the risks undertaken by the insurers in respect of that period. Third, on the insurers case there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to disease or injury in another later period [24]. Fourth, on the insurers case employers would be vulnerable to any decision by the insurers not to renew the policy. A decision not to renew might arise from the employers complying with their duty to disclose past negligence upon any renewal. Employers who discovered that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease would have such a duty. The insurers could then simply refuse any renewal or further cover [25]. Fifth, the way most of the policies deal with extra territorial issues throws doubt on any suggestion that the wordings are so carefully chosen that a court should stick literally to whatever might be perceived as their natural meaning [28]. Section 1 of the Employers Liability Compulsory Insurance Act 1969 also points the way to the correct interpretation. This states that every employer shall insure, and maintain insuranceagainst liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment. In order to give proper effect to the protective purpose of that legislation, the Act requires insurance on a causation basis [47]. There is no difficulty in treating the word contracted as looking to the causation of a disease, rather than its development or manifestation. The word contracted used in conjunction with disease looks to the initiating or causative factor of the disease [49]. While the word sustained may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later [50]. In relation to the second issue, the question is whether the EL policies cover employers liability for mesothelioma arising under the special rule in Fairchild/Barker [71]. Under that rule the law accepts a weak or broad causal link between the employers negligence and the employees mesothelioma. When construing the EL policies the concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule [74]. The purpose of the EL policies was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies [88]. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurers obligation to indemnify the employer [74]. Lord Phillips dissents on the second issue. The special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. This conclusion is not affected by section 3 of the Compensation Act 2009, which did not alter the jurisprudential basis of the Fairchild/Barker approach [132] [133].
This appeal raises the question of how the concepts of sufficiency and infringement are to be applied to a Swiss form patent relating to a specified medical use of a known pharmaceutical compound. The Appellant (Warner Lambert) is part of the Pfizer group of companies. It is the proprietor of European Patent No 0641330 for Isobutylgaba. This is used for the treatment of seizure disorders, including epilepsy. Pregabalin, a derivative compound of Isobutylgaba, is marketed by Warner Lambert under the Lyrica brand. Patent No 0641330 expired on 17 May 2013. This appeal concerns a second European Patent No EP(UK) 0934061 entitled Isobutylgaba and its derivatives for the treatment of pain, with a priority date of 24 July 1996 (the Patent). The claims of the Patent (which define the scope of the patent protection) are all purpose limited. Most relevant are Claims 1 3 on the use of pregabalin for treating (1) pain, (2) inflammatory pain and (3) neuropathic pain. Lyrica has marketing authorisation in the EU for treatment of peripheral and central neuropathic pain, epilepsy and generalised anxiety disorder. It is one of Pfizers most successful drugs in the UK. The First Respondent (Mylan) and the Second Respondent, Actavis Group PTC EHF (Actavis), are pharmaceutical companies mainly engaged in marketing generic pharmaceutical products. Actavis markets a generic pregabalin product under the brand name Lecaent, launched in 2015. In these proceedings, Mylan and Actavis claimed the revocation of the Patent on the grounds of lack of inventive step and insufficiency. Warner Lambert claim that Actavis infringes Claims 1 and 3 above. At first instance, Arnold J rejected the arguments based on lack of inventive step. These are no longer in issue. Further, he held that Claim 1 (pain) and Claim 3 (neuropathic pain) were invalid because he construed Claim 1 as extending to all pain and Claim 3 as extending to all neuropathic pain. He found that there was sufficient disclosure in the specification to support the claim that pregabalin was efficacious in the treatment of inflammatory and peripheral neuropathic pain, but not central neuropathic pain. Both claims therefore failed for insufficiency. The result of the judges decision was to remove patent protection for the manufacture of pregabalin for the treatment of both peripheral and central neuropathic pain. Arnold J also rejected as an abuse of process an application concerning an amendment to narrow the Patent. The Court of Appeal (Floyd, Kitchin and Patten LJJ) upheld the judges findings, so far as relevant to this appeal, and his decision on the amendment application. The judge and Court of Appeal differed in their approach to infringement in patent cases confined to manufacture for a particular use. On appeal to the Supreme Court, Warner Lambert contend that all the claims of the Patent were valid. Their main aim is to establish the validity of their claims relating to neuropathic pain or, at least, peripheral neuropathic pain. Actavis and Mylan cross appeal, arguing that none of the claims as to neuropathic pain are valid. They only accept as valid the claims limited to inflammatory pain, for which there is no marketing authorisation. This gives rise to four issues on appeal: (i) the construction of the claims (in particular, Claim 3 as to neuropathic pain); (ii) the sufficiency of the disclosure in the specification; (iii) amendment and abuse of process; and (iv) the test for infringement of a patent in relation to manufacturing for a limited use. The Supreme Court dismisses the appeal and allows the cross appeal (Lord Mance and Lord Hodge dissenting in part on whether there was sufficient disclosure in the specification for Claims 1 and 3). Lord Sumption gives the leading judgment, with which Lord Reed, Lord Hodge and Lord Briggs agree, save on some issues specified in the separate judgments of Lord Briggs, Lord Hodge and Lord Mance. Issues (i) and (iii) Construction of the claims and amendment/abuse of process: The court unanimously affirms (for reasons given by Lord Briggs): (1) the view of both courts that Claim 1 extends to all pain and Claim 3 to all neuropathic pain, whether peripheral or central, and (2) Arnold Js decision rejecting Warner Lamberts application to amend the Patent to narrow it [15(1), 16 (Lord Sumption); 99 106, 118 120 (Lord Briggs); 181 (Lord Hodge); 195 196 (Lord Mance)]. Issue (ii) Sufficiency of disclosure in specification for Claims 1 and 3: The court holds, by a majority (Lord Sumption, Lord Reed and Lord Briggs), that the disclosure in the specification supports the claims in relation to inflammatory pain, but not neuropathic pain, whether peripheral or central. Claims 1 and 3 therefore fail for insufficiency. Thus, the appeal is dismissed and the cross appeal allowed [15(2), 43 54]. The majoritys approach requires the patentee to demonstrate that the specification discloses some scientific reason why the implied assertion of efficacy in the patent claim may well be true [36 37]. More than a bare assertion or mere possibility of therapeutic efficiency is required, though a priori reasoning (not necessarily only experimental data) may suffice [37]. This respects the principle that the patentee cannot claim a monopoly of new use for an existing compound without real disclosure [35]. Lord Hodge (dissenting) proposes an alternative approach to sufficiency, preferring a lower standard of plausibility, and would have dismissed the cross appeal [186 190]. Lord Mance agrees with Lord Hodge on this issue, concluding that the majoritys approach imposes too high a threshold [198 201]. Issue (iv) Correct test for infringement of patent manufactured for a limited use: The court unanimously holds that if Claims 1 and 3 had been valid, they would not have been infringed by Actavis [15(3)]. The reasons for arriving at this agreed result differ substantially. Lord Sumption and Lord Reed consider that the intention of the alleged infringer, whether subjective or objective, is irrelevant and that the sole criterion of infringement is whether the product as it emerges from the manufacturing process, including any labelling or accompanying leaflet, is presented as suitable for the uses which enjoy patent protection the outward presentation test [15(3), 71 86]. On the facts of this case, it is not disputed that Lecaent was sold with labels and patient information to the effect that it was for the treatment of seizure disorders and general anxiety disorder [8, 15(3)]. Lord Mance agrees that the test depends on the objective appearance and characteristics of the product as it is prepared, presented and put on the market, but considers that in rare cases the context may make it obvious that these are not to be taken at face value [15(3); 218 223]. Lord Briggs and Lord Hodge prefer the view of Arnold J that the test is whether the alleged infringer subjectively intended to target the patent protected market (Arnold J found they had not so intended) [15(3); 170 177 (Lord Briggs); 193 (Lord Hodge)].
In 2002 Mr Khan was registered as a pharmacist. Between 2010 and 2012 Mr Khan pleaded guilty to three incidents of domestic violence. In 2012 the General Pharmaceutical Council referred to its Fitness to Practise Committee (original committee) an allegation that Mr Khans fitness to practise as a pharmacist was impaired by reason of his misconduct. On 27 June 2013 the original committee found that the impairment of his fitness to practise was established. When it turned to identify the sanction in article 54(2)(d) of the Pharmacy Order 2010 (the Order) which would properly reflect the gravity of Mr Khans misconduct, the original committee rejected the option of suspending his right to practise for 12 months on the basis that this sanction would be insufficient to mark the degree of gravity of Mr Khans misconduct. Instead it directed that his entry in the register of pharmacists be altogether removed. The Extra Division of the Court of Session allowed Mr Khans appeal against the direction for removal and remitted the case to the original committee for it to determine the appropriate sanction in light of its Opinion. It found that the original committee had made no mention of its power under article 54(3)(a)(ii) of the Order to conduct a review following a direction for suspension and to direct that the suspension of the entry be extended for such further period not exceeding 12 months as may be specified in the direction. In its view there was therefore a middle way between suspension for 12 months, which the original committee has considered to be insufficient, and removal, which the original committee had acknowledged perhaps appeared harsh. In light of the original committees power to conduct later reviews, it had been reasonably incidental to its power of suspension for 12 months for it to indicate that it considered that the suspension should be extended thereafter, for a further 12 months or longer. Although this indication would not bind the review committee, the Extra Division reasoned that it must be assumed that the later committee will be obliged to respect the indication and if it departs from it will be expected to give reasons for doing so. The General Pharmaceutical Council appealed the decision of the Extra Division. Its appeal concerns whether a review committee may impose a further suspension to reflect the original committees conclusion that the gravity of the registrants misconduct demanded a longer period of suspension than the 12 months it was permitted to imposed. Mr Khan cross appealed against the Extra Divisions implicit rejection of his argument that in any event his removal from the register was disproportionate. The Supreme Court unanimously allows both the General Pharmaceutical Councils appeal and Mr Khans cross appeal. Lord Wilson gives the judgment, with which the other Justices agree. The Appeal The powers of the review committee following the original committees direction for a registrants suspension are set out in article 54(3)(a) of the 2010 Order. That article does not indicate how the powers should be exercised, and only limited assistance may be derived from the General Pharmaceutical Council (Fitness to Practise and Disqualification etc) Rules 2010. Rule 34(4) requires the representative of the council to inform the review committee of the background to the case and sanction previously imposed and to direct its attention to any relevant evidence. Rule 34(4) and (5) permit both parties to adduce evidence in relation to the person concerns fitness to practice. Rule 34(6) provides that, following a direction for suspension, the review committee must receive further evidence although the subject of it is not identified. It certainly seems that the reference to the registrants fitness to practise relates to his fitness at the time of the review hearing [24]. Greater assistance is collected from the Indicative Sanctions Guidance which makes clear that the focus of the review is upon the current fitness of the registrant to resume practice, judged in the light of what he has, or has not, achieved since the date of suspension. The review committee asks: does his fitness to practise remain impaired [27]. The recent work of the three UK Law Commissions in this area proposes that the review committee should address changes relevant to impairment which have or have not occurred since the date of the original committees direction [28]. It is also noteworthy that in the fifth report of the Shipman Inquiry, the Chairman stated that review hearings should focus the doctors mind on the need to undertake any necessary remediation [29]. The Extra Divisions conception is alien to the generally accepted conception of a review as a vehicle for monitoring the steps taken by the registrant towards securing professional rehabilitation [31]. Taylor v General Medical Council [1990] 2 AC 539, not cited to the Extra Division, expressly holds that the conception favoured by the Extra Division is misplaced [32]. In Taylor the court held that it can never be a proper ground for the exercise of the power to extend the period of suspension that the period originally directed was insufficient to reflect the gravity of the original offence [33]. The Extra Division was too ingenious. There was no middle way. It was wrong to remit the case to the committee on that basis [35]. The Cross Appeal The original committee itself acknowledged that its direction for removal might appear harsh. Serious though Mr Khans misconduct certainly was, the sanction appropriate to the disrepute into which Mr Khans conduct had brought, or was likely to bring, the profession of pharmacy was suspension of his registration, which, at the time of the committees determination, should no doubt have been for a period of a year [40]. A direction for suspension should be substituted in place of the original committees direction for removal from the register. In light of Mr Khans interim suspension since the date of the original committees direction, the period of his suspension should be four months and a review committee should conduct a review prior to the expiry of this period [41].
Ewa Michalak was a doctor employed by the Mid Yorkshire Hospitals NHS Trust from April 2002 until she was dismissed in July 2008. Following her dismissal, Dr Michalak brought an unfair dismissal claim against the Trust in the Employment Tribunal. The tribunal found that her dismissal had been unfair due to sex and race discrimination and victimisation. Dr Michalak received a compensation award and a public apology from the Trust. Before the tribunal had issued its determination, the Trust had reported Dr Michalak to the General Medical Council to consider whether she should continue to be registered as a medical practitioner. The Trust later accepted that there had not been proper grounds to refer her and she remains registered as a medical practitioner. In the meantime, however, the GMC had begun fitness to practice proceedings against Dr Michalak. She claims that the GMC discriminated against her in the way in which it pursued those proceedings, including a failure to investigate complaints she had made against other doctors employed by the Trust. In August 2013, Dr Michalak brought a claim in the Employment Tribunal against the GMC, its chief executive and one of its investigation officers in relation to these complaints. The GMC argued that section 120(7) of the Equality Act 2010 meant that the Employment Tribunal did not have jurisdiction to hear the claim, as judicial review already provides for an appeal in these matters. The issue in this appeal was whether the availability of judicial review proceedings in respect of decisions or actions of the GMC can properly be described as proceedings in the nature of an appeal and, on that account, the jurisdiction of the Employment Tribunal is excluded by section 120(7) of the 2010 Act. The Supreme Court dismisses the appeal. Lord Kerr gives the judgment with which all other members of the panel agree. Lord Mance provides an additional short judgment with further explanation of his reasons. It is accepted that Dr Michalak could seek judicial review of the decisions that are alleged to constitute discrimination. The issue is whether the availability of judicial review comes within section 120(7) of the 2010 Act. This depends on two requirements being satisfied: (i) whether judicial review can be described as a proceeding in the nature of an appeal and (ii) whether it is available by virtue of an enactment [13]. The Employment Tribunal was designed to be a specialised forum for the resolution of disputes between the employee and employer, with the power to award a comprehensive range of remedies. Where Parliament has provided an alternative route of challenge to a decision through an appeal or an appeal like procedure, however, it makes sense for the appeal procedure to be confined to that statutory route. This avoids the risk of expensive and time consuming satellite proceedings and is convenient for both the appellant and respondent. Employment tribunals should be prepared to examine critically whether statutory appeals are available, and where they are, should strike out proceedings before them. This rationale only applies where the alternative route is capable of providing an equivalent means of redress, however. [16 18]. Conventionally, an appeal is a procedure which entails a review of an original decision in all its aspects an appeal body may thus examine the basis on which the original decision was made, assess the merits of the conclusions reached and, if it disagrees, substitute its own view. Judicial review, by contrast, is a proceeding in which the legality of or procedure by which a decision is reached is challenged. It cannot partake of the nature of an appeal the remedy available on a judicial review application in circumstances such as the present is a declaration that the decision is unlawful or that the decision be quashed. The court cannot substitute its own decision for that of the decision maker and, in that sense, the decision of the GMC could not be reversed. An appeal in a discrimination case must confront directly the question whether discrimination has taken place, not whether the GMC had taken a decision which was legally open to it. [20 22]. The origins of judicial review lie within the common law and it is not a procedure which arises by virtue of any statutory source section 31 of the Senior Courts Act 1981 did not establish judicial review as a procedure, but rather regulated it. If Parliament had intended that judicial review was within the scope of the procedures contemplated by section 120(7), one would expect that it would have provided for it expressly [32 33, 35]. Lord Mance agrees with Lord Kerr but adds that he would not necessarily limit the ability of judicial review to cater for a close examination of a claim on its merits in appropriate circumstances, judicial review may lead the court to a conclusion that there exists only one possible outcome of a properly conducted legislative or executive decision making process. In this situation, however, the Employment Tribunal offers the natural means of recourse and there is no need to strain the ordinary understanding of the concept of appeal to embrace judicial review [37 38].
This appeal relates to bonds issued by the respondent, the Republic of Argentina (Argentina), in respect of which, together with all its other debt, Argentina declared a moratorium in December 2001. The appellant NML Capital Limited (NML) is an affiliate of a New York based hedge fund, which purchased the bonds at little over half their face value between June 2001 and September 2003 and then pursued the respondent for the return of their full principal value and interest in the New York courts. On 11 May 2006 NML obtained summary judgment on the bonds from a Federal Court in New York for over $284m. It then sought to enforce the judgment against assets held by Argentina in England by bringing a common law action on the judgment in London. NML applied for permission to serve the claim form out of the jurisdiction on Argentina, initially alleging two reasons why Argentina was not entitled to state immunity. The first was that Argentina had waived immunity as a term of its agreement with Bankers Trust to issue the bonds, and the second that the claim constituted proceedings relating to a commercial transaction and so fell within the exception in section 3(1)(a) of the State Immunity Act 1978 (the 1978 Act). Permission was granted and the proceedings were served. Argentina then applied to have the order for service set aside. NML resisted this application by reliance on two different grounds: the provisions of section 31 of the Civil Jurisdiction and Judgments Act 1982 (the 1982 Act) and terms as to waiver and jurisdiction in the bonds themselves. The High Court dismissed Argentinas application but this decision was reversed by the Court of Appeal, which held that Argentina was protected by state immunity from the claim. The Supreme Court unanimously allows the appeal. Lord Phillips and Lord Clarke find that the claim falls within the scope of section 3(1)(a) of the 1978 Act. Lord Mance, Lord Collins and Lord Walker disagree on this point but all agree that the appeal should in any event succeed by reason of the provisions of s 31 of the 1982 Act and by Argentinas submission and waiver of immunity in the bonds. The scope of s 3(1)(a) of the 1978 Act Sections 1 11 of the 1978 Act are a comprehensive statement of the scope of state immunity under the law of the United Kingdom. During the twentieth century there was a growing recognition around the world of the restrictive doctrine of state immunity, under which immunity was given to governmental acts in the exercise of sovereign authority but not to commercial activities carried on by the state [10]. S 3(1)(a) made it clear that the UK was adopting the restrictive doctrine. The context for interpreting the phrase proceedings relating to a commercial transaction in this case was the enforcement of a judgment which absent state immunity would be permitted by Civil Procedure Rule 6.20(9). Lord Phillips and Lord Clarke considered that the words relating to should be given a broad rather than a narrow meaning. The proceedings related both to the foreign judgment and to the transaction underlying that judgment [26]. Although Parliament was unlikely to have thought the 1978 Act to apply to a class of foreign judgments at a time when there was no procedural machinery to serve a defendant out of the jurisdiction, s 3(1)(a) should be given an updated meaning consistent with the statutory purpose of the act [152]. Lord Mance did not think it was justified to treat the wording of s 3(1)(a) as applying to a foreign judgment against a foreign state, which had long been recognised as a special area of private international law [80]. S 31 of the 1982 Act was the means by which Parliament had achieved for the first time a comprehensive treatment of the issue of state immunity in respect of foreign judgments [98][118]. Lord Collins (with whom Lord Walker agreed) pointed to the almost invariable use in international loan agreements and bond issues since the 1970s of clauses providing for submission to national jurisdiction and waivers of immunity [103]. He preferred a narrow interpretation of s 3(1)(a). There was no policy reason to give it a wider meaning in the light of s 31 of the 1982 Act and the widespread use of express waivers [116]. Effect of s 31 of the 1982 Act S 31 of the 1982 Act reflected and in part replaced the categories of exemption from state immunity set out in the 1978 Act as far as foreign judgments were concerned. It was an alternative scheme rather than an additional hurdle [47]. State immunity could not be raised as a bar to the recognition and enforcement of a foreign judgment if, under the principles of international law recognised in this jurisdiction, the state against whom the judgment was given was not entitled to immunity in respect of the claim [49]. Did the bonds contain a submission to the jurisdiction of the English court? The High Court had correctly held that the agreement in the bond was more than a mere waiver and amounted to a submission to jurisdiction [59]. It was the only meaning the provision could sensibly bear [62] [128]. Could NML rely on new issues at the High Court hearing? Lord Phillips considered that the rule in Parker v Schuller (1901) should no longer be applied. Allowing a party to amend a pleading where no prejudice was caused to the other party that could not be dealt with by an appropriate order for costs accorded with the overriding objective [75]. The other justices did not think that the rule applied on the facts of this case, but agreed with his observations.
On 13 May 2012 China Gateway International Limited (CGI) submitted an application for planning permission to the local planning authority, Dover District Council (DDC). It sought permission for a large residential development within an area of outstanding natural beauty (AONB). The proposal was controversial. A planning officers report was circulated to the Planning Committee on 7 June 2013. It recommended the grant of permission with amendments to CGIs proposal, including a reduction in the number of planned houses at one site from 521 to 365. They also recommended ensuring, through an agreement with CGI (the Section 106 Agreement), various economic benefits including a planned hotel and conference centre. The planning officers report had regarded the level of harm to the AONB as significant but concluded that the suggested amendments created a finely balanced public interest. The Planning Committee met on 13 June 2013. Three members of the Committee expressly stated that harm to the AONB could be minimised by effective screening. The planning officers report had nonetheless expected that screening would be largely ineffective. After discussion, the Committee carried a motion approving the planning officers recommendation, but without the proposed reduction in the number of houses. On 18 December 2013 the application for planning permission returned to the Planning Committee with an updated planning officers report. The updated report confirmed that, contrary to the officers earlier recommendation, the Section 106 Agreement did not require CGI to provide the hotel but instead served to create an opportunity for a hotel. The Section 106 Agreement was executed on 1 April 2015. Planning permission was granted on the same day. Campaign to Protect Rural England Kent (CPRE Kent) sought a judicial review of that decision. Although it was unsuccessful at first instance, the Court of Appeal allowed the subsequent appeal and quashed the decision to grant permission. In this appeal to the Supreme Court it was not in dispute that the DDC was in breach of a specific requirement under the Town and County Planning (Environmental Impact Assessment) Regulations 2011 (the EIA Regulations) to provide a statement of the main reasons and considerations on which the decision was based. The issue is whether the Court of Appeal was right to quash the decision on that basis. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the judgment, with which Lady Hale, Lord Wilson, Lady Black and Lord Lloyd Jones agree. The Court reviewed various statutory rules relating to the provision of reasons for planning decisions, observing that these rules are to be found in subordinate legislation and that it is hard to detect a coherent approach to their development. The three main categories of planning decision are: (i) decisions of Secretaries of State and inspectors, (ii) decisions by local planning authorities in connection with planning permission, and (iii) decisions, at any level, on applications for EIA development [21 23]. Special duties arise under the EIA Regulations where an application (as in this case) involves a development which is likely to have significant effects on the environment by virtue of factors such as its nature, size or location (an EIA development). Regulation 3(4) provides that decision makers shall not grant planning permission, where the application involves an EIA development, without first taking the environmental information into consideration, and that they must state in their decision that they have done so. Article 6.9 of the Aarhus Convention (Convention on Access to Information, Public Participation in Decision making and Access to Justice in Environmental Matters), to which the United Kingdom is a party, also requires each party to make accessible to the public the text of certain decisions involving an EIA, along with reasons and the considerations on which it is based [31 34]. Where there is a legal requirement to give reasons, what is needed is an adequate explanation of the ultimate decision. The content of that duty should not in principle turn on differences in the procedures by which the decision is arrived at. The essence of the duty, and the central issue, is whether the information so provided by the authority leaves room for genuine doubt as to what it has decided and why [35 42]. The Court rejects DDCs argument that a breach of the EIA duty alone should be remedied by a mere declaration of the breach. DDC relied on R (Richardson) v North Yorkshire County Council [2004] 1 WLR 1920 in which the Court of Appeal remedied a failure to provide a statement of reasons without quashing the decision, by ordering only that the statement be provided. However, in that case it was possible to take the planning committee as adopting the reasoning in the officers report which had recommended granting permission [46 49]. In view of the specific duty to give reasons under the EIA regulations, it is unnecessary to address the common law position. However, the particular circumstances of this case would, if necessary, have justified the imposition of a common law duty to provide reasons for the grant of permission. Planning law is a creature of statute, but the proper interpretation of the statute is underpinned by general common law principles, including fairness and transparency. It is appropriate for the common law to fill the gaps in the present system of rules, but its intervention should be limited to circumstances where legal policy reasons for it are strong [50 60]. The meeting on 13 June 2013 occurred only days after receipt of the planning officers detailed report, which proposed new and controversial amendments. A decision maker must not only ask himself the right question, but must take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly. Even if there was pressure to reach a decision in this case, it seems unfortunate that the committee members did not apparently consider deferring detailed discussion of the proposed amendments [62 63]. A mere declaration of the breach of the EIA duty is not an appropriate or sufficient remedy. In the three years since the permission was issued, no attempt has been made to formulate the reasons so as to make good the admitted breach, perhaps underlining the difficulty of reconstructing the reasons of the committee on the basis of its minutes alone. The recorded views of those members who supported the proposal do not indicate whether those views were shared by the majority, nor why the members felt able to reject the view of their own advisers without further investigation. Their omission of any legal mechanism to secure the proposed economic benefits, in particular the hotel and conference centre, required explanation. Furthermore, it was critical to understand the basis of the members belief that the harm to the AONB could be minimised, which conflicted with the planning officers view that screening would be largely ineffective. The quashing order of the Court of Appeal is consequently affirmed and the appeal is dismissed [61 69].
This appeal concerns the application of planning law to a dwelling house disguised as a hay barn. The first issue is whether the building is within the provisions of the Town and Country Planning Act 1990 which impose a time limit for taking enforcement action against breaches of planning control. The second issue is whether the owners dishonest scheme disentitles him from benefitting from those provisions. In 2001 Mr Beesley, the Second Respondent, applied for and obtained planning permission to construct a hay barn for grazing and haymaking on open land which he owned in the Green Belt. In 2002 he constructed a building which was to all external appearances the permitted barn, but internally was a fully fitted out dwelling house with garage, living room, study, bedrooms, bathrooms and gym. In August 2002 he moved in with his wife and lived there continuously for four years. Welywn Hatfield Borough Council, the Appellant, in whose area the property lies, remained unaware that the building was constructed as, or was being used as, a dwelling house. In August 2006 Mr Beesley made an application for a certificate of lawfulness for use of the building as a dwelling house. He contended that the four year time limit for taking enforcement action in section 171B(2) of the Town and Country Planning Act 1990 (the 1990 Act) was applicable and had elapsed. The section provides that where there has been a breach of planning control consisting in the change of use of any building to use as a single dwelling house, no enforcement action may be taken after the end of four years beginning with the date of the breach. The certificate was granted and subsequently upheld by the Court of Appeal, which decided that there had been a change of use within section 171B(2) such that immunity from enforcement was established. The Council appealed to the Supreme Court on two grounds. First, it challenged the Court of Appeals decision that there had been a relevant change of use. Secondly, it argued that even if there had been such a change, the principle of public policy that no one should be allowed to profit from his own wrong precluded Mr Beesley from relying on section 171B(2). The Supreme Court unanimously allows the appeal. It holds that: (i) there had been no change of use within section 171B(2); (ii) in any event, Mr Beesleys dishonest conduct meant that he could not rely on the section. Lord Mance gives the lead judgment. Lords Rodger and Brown deliver additional concurring judgments. On the first issue, the question was whether there had been any relevant change of use such as to bring the building within section 171B(2). The Supreme Court held first that the building which Mr Beesley constructed was not the permitted barn: it was a dwelling house. Therefore there could not have been a change of use within section 171B(2) from the use permitted by the planning permission. In any event, it was doubtful whether change of use under section 171B(2) could consist of a simple departure from permitted use. The word use in the section is directed to real or material use, not permitted use. [13] [14] Nor was there a relevant change of use on the basis that in the short period between completion of the building in July 2002 and its residential occupation on 9 August 2002 the building had no use, such that there was a change of use from no use to use as a dwelling house on and after 9 August. It is artificial to say that a building has no use when its owner has just built it to live in and is about to move in a few days time. The question of whether it is right to describe a building as having no use is not one which can sensibly be answered on a day by day basis, but rather calls for a broader and longer term view. For all these reasons, section 171B(2) is simply not apt to encompass the use of a newly built house as a dwelling house. [27] [30]; [68] In light of this conclusion on the first issue, it was not strictly necessary to address the second issue, but given its importance the Court went on to do so. The issue involved consideration of the scope and application of the principle that, unless the contrary intention appears, statutes are to be construed to the effect that no one should be allowed to profit from his own wrong. The Court noted that Mr Beesley intended to deceive the Council from the outset by his statements in the planning application. This was positive deception in matters integral to the planning process and directly intended to undermine that process. His conduct was not identifiably criminal but the principle is not only relevant where there has been the commission of a crime. The Court further considered the rationale of the statutory provision: the four year period in section 171B(2) must have been conceived as a period during which a planning authority would normally be expected to discover an unlawful use and after which the general interest in proper planning control should yield and the status quo prevail. Positive and deliberately misleading false statements by an owner which prevent discovery take a case outside that rationale. It would in fact frustrate the policy of the section if the time limit for enforcement was to apply on the facts of the present case. It would also damage the publics confidence in planning law: any law abiding citizen would be astonished to suppose that Mr Beesleys dishonest scheme, once being discovered, would not be enforced against but rather crowned with success. It is unthinkable that Parliament intended such an outcome. Even if, therefore, Mr Beesley had come within the literal wording of section 171B(2), his conduct took him outside its scope. [31]; [53] [58]; [67]; [80]
Interest bearing loan notes (the notes) to the value of 660m were issued to certain companies (the Noteholders) by a special purpose vehicle formed by the Lehman Brothers group, Eurosail UK 2007 3BL (the Issuer). The Issuer used the issue of the notes to fund the purchase of a portfolio of mortgage loans, to the value of 650m, secured on residential property in the United Kingdom. The notes were issued in 5 principal classes in order of priority for repayment. Those classes run from A through to E, and comprise a total of 14 sub classes. The A notes hold highest priority, are of the highest value, and are designated either A1, A2 or A3. The final redemption date of the lowest priority notes is in 2045. The terms governing the issue of the notes (the Conditions) provide that in the event of an Event of Default, an Enforcement Notice may be served by the trustee of the Noteholders rights, namely BNY Corporate Trustee Services Ltd (the Trustee). If the Issuer becomes unable to pay its debts under the terms of section 123 of the Insolvency Act 1986 (the 1986 Act), that would constitute an Event of Default. That section provides that a company is deemed unable to pay its debts, first, if it is unable to pay those debts as they fall due or, secondly, if the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities. The former is often referred to as the cash flow test, and the latter as the balance sheet test. The effect of section 123 was incorporated into the Conditions. Further, on the date on which the notes were issued, on behalf of the Noteholders the Trustee entered into an agreement (PECO) with another company (OptionCo). OptionCo was granted the option to purchase all of the notes from the Noteholders, plus the accrued interest, for a nominal consideration in the event that the Trustee determines that the Issuer is unable to pay its debts under section 123. The intended effect of this was that, in the event that the assets of the Issuer were exhausted, the remaining claims of the Noteholders against the Issuer would be assigned to OptionCo, and the Issuer would not be regarded as unable to pay its debts. The Issuer had entered into swap agreements with two of Lehman Brothers companies, with the consequence that when the latter became insolvent the Issuer suffered a significant deficiency in its net asset position, though it continued to pay its debts. The holders of the A1 and certain other of the notes had been repaid by this time. The A2 Noteholders were to have priority over A3 Noteholders in receiving repayments of principal out of sums raised by the Issuer from the redemption of mortgages in the portfolio, though those two groups would rank equally for repayment of interest. However, a finding that the Issuer was unable to pay its debts, and the consequent issuing of an Enforcement Notice, would alter this position significantly: all notes would become immediately due and payable and, importantly, A2 and A3 Noteholders would rank equally for repayment of principal. Against that background, though adopting a neutral position, the Trustee commenced these proceedings to seek a determination of whether the difficulties suffered by the Issuer constituted an Event of Default on the basis that it was unable to pay its debts within the meaning of section 123 of the 1986 Act. This appeal is therefore concerned with the construction of section 123. The Issuer and certain of the A2 Noteholders successfully argued in both the High Court and the Court of Appeal that the Issuer was not unable to pay its debts within the meaning of section 123. The Appellants, who are A3 Noteholders, argue to the contrary, and seek a stricter construction of section 123 than that which was applied by the lower courts. By way of cross appeal the Issuer renews its argument, rejected by the Court of Appeal, that in the event that the Issuer was otherwise deemed unable to pay its debts under section 123, the effect of the PECO should serve to alter that conclusion. The Supreme Court unanimously dismisses the appeals and the Issuers cross appeal. Lord Walker, with whom Lord Mance, Lord Sumption and Lord Carnwath agree, gives the lead judgment. Lord Hope gives a concurring judgment. Having regard to previous relevant legislation, to the authorities pertaining to those provisions and to section 123 of the 1986 Act itself, the enactment of section 123 should be seen as having made little significant change in the law. The changes in form therein emphasise that the cash flow test is concerned with debts falling due from time to time in the reasonably near future, in addition to those debts presently due. What is to be regarded as the reasonably near future will depend on the circumstances at hand, but especially the nature of the companys business [37]. However, once one moves beyond the reasonably near future, any attempt to apply the cash flow test will become completely speculative. In that situation, a comparison of present assets with present and future liabilities, the latter having been discounted to account for contingencies and deferment of payments, becomes the only sensible test. That is the reason for the inclusion of the balance sheet test in section 123, though it is still very far from an exact test. It is for the party asserting balance sheet insolvency to establish insolvency of that nature [37]. Whether or not the balance sheet test of insolvency is satisfied must depend on the available evidence as to the circumstances of the particular case. In that regard, the Issuer is not engaged in normal, on going trading activities, and therefore its present assets should be a better guide to its ability to meet its long term liabilities. Against that, the impact of factors relevant to its business in the period until the final redemption rate in 2045, such as currency movements, interest rates and the economy and housing market of the United Kingdom, must be considered. However, they are a matter of speculation rather than calculation or prediction on a scientific basis [38, 49]. As the Issuers liabilities can, as matters stand, be deferred until 2045, and as it is currently paying its debts as they fall due, the Court should proceed with the greatest caution in deciding that it is in a state of balance sheet insolvency [42]. Its ability to pay all its debts, present or future, may not be finally determined until much closer to 2045. The Conditions contain several mechanisms to ensure that liabilities in respect of principal can be deferred until that date. That being so, the Court cannot be satisfied that there will eventually be an inability on the part of the Issuer to pay its debts [49]. Though it is not required to decide the point because the appeal is dismissed, PECO agreements are of importance to the securitisation market. So the Court gives reasons for its decision to dismiss the cross appeal [51]. In that regard, the intended legal and commercial effects of the PECO, having regard to the wording of the documents pertaining to the transaction as a whole, point in the same direction: they do not affect the quantification of the Issuers liabilities. The meaning to be given to the language used by the parties on this point is not open to doubt. It would not be consistent with commercial good sense to depart from it [64].
These proceedings challenge a deportation order made in respect of the appellant, an Iraqi national who has lived unlawfully in the UK since 2000. He made an asylum claim in 2002, which was rejected, and his subsequent appeal was dismissed. In November 2005 he was convicted of Class A and C drug possession and was fined. On 4 December 2006, he was convicted of two counts of Class A drug possession with intent to supply, and sentenced to four years' imprisonment. Upon completion of his sentence in January 2011 he was considered to present a low risk of re offending. He has been in a relationship with his fiance, a British citizen, since 2005. The appellant has two children who probably reside in the UK, and with whom he has no contact. He has no remaining family in Iraq. On 5 October 2010 the Secretary of State made an automatic deportation order under s.32(5) of the UK Borders Act 2007. S.32(5) requires deportation orders to be made in respect of foreign criminals unless one of the exceptions in s.33 applies, which include breach of ECHR rights. A foreign criminal is defined in s.32(1) as a person who is not a British citizen, who is convicted in the UK of an offence and is sentenced to a period of imprisonment of at least 12 months. The Secretary of State found that the appellant did not fall within any of the exceptions in s.33: she accepted that deportation might interfere with the appellants ECHR article 8 rights to private and family life, but considered that this was proportionate to the aim of preventing disorder or crime and the maintenance of effective immigration control. The appellant appealed the Secretary of States decision, but the First tier Tribunal dismissed his appeal. The appellant then appealed to the Upper Tribunal, which set aside the First tier Tribunals decision and re heard the appeal, allowing it on the ground that a s.33 exception applied: the appellants removal would be incompatible with his rights under article 8. The Court of Appeal allowed the Secretary of States appeal on the ground that the Upper Tribunal had failed, in its assessment of proportionality, to take into account the new Immigration Rules which had come into force in July 2012, and had failed to recognise the importance of the public interest in deporting foreign criminals. The Court of Appeal remitted the appeal for re consideration by a differently constituted Upper Tribunal. This is the appeal against the decision of the Court of Appeal to remit. The Supreme Court dismisses Mr Alis appeal by a majority of 6 to 1. Lord Reed gives the lead judgment (with which Lord Neuberger, Lady Hale, Lord Wilson, Lord Hughes and Lord Thomas agree). Lord Wilson and Lord Thomas each add a concurring judgment. Lord Kerr gives a dissenting judgment. The Immigration Rules (the Rules) were a relevant and important consideration which the Upper Tribunal ought to have taken into account when assessing the proportionality of the interference with the appellants article 8 rights. It should also have taken into account that his relationship with his partner was formed at a time when his immigration status was such that the persistence of family life within the UK was uncertain [60]. The European Court of Human Rights has provided guidance to the factors which should be taken into account in the balancing exercise (for example in Boultif v Switzerland (2001) 33 EHRR 50, Maslov v Austria [2009] INLR 47, Jeunesse v Netherlands (2014) 60 EHRR 17). These factors involve wide ranging consideration of the appellants circumstances including the nature of his private and family life in the UK, his links to the destination country, and the likelihood of him re offending [26 33]. The weight to be attached to each factor in the balancing exercise falls within the margin of appreciation of the national authorities [35]. The Rules set out the Secretary of States assessment of the weight generally to be afforded to some of these factors. In particular, the Rules prescribe a presumption that the deportation of foreign criminals is in the public interest, except where specified factors are present which the Rules accept outweigh that interest. Outside of those specified factors (for example in every case where a custodial sentence of 4 years of more has been imposed, as here), the Rules state that exceptional circumstances that is, compelling reasons are required to outweigh the public interest in deportation. The Rules are not law, but do have a statutory basis and require the approval of Parliament. It is within the margin of appreciation to adopt rules reflecting the assessment of the general public interest made by the Secretary of State and endorsed by Parliament. [15 23, 36 39]. As an appellate body, the Upper Tribunals decision making process is not governed by the Rules, but should nevertheless involve their consideration. The Upper Tribunal must make its own assessment of the proportionality of deportation, on the basis of its own consideration of the factors relevant to the particular case, and application of the relevant law. But in doing so, it must not disregard the decision under appeal. Where the Secretary of State has adopted a policy in relation to the assessment of proportionality, set out in the Rules and endorsed by Parliament, the Upper Tribunal should give considerable weight to that policy. In this case that policy was that a custodial sentence of four years or more represents such a serious level of offending that the public interest in the offenders deportation almost always outweighs countervailing considerations of private or family life [39 50, 60 64]. Lord Wilson adds that public concern (as reflected in the Rules endorsed by Parliament) can assist a courts objective analysis of where the public interest lies [65 81]. Lord Thomas emphasises the importance of clear reasoning at first instance through a structured balance sheet approach [82 84]. In a dissenting judgment, Lord Kerr would have allowed the appeal and upheld the decision of the Upper Tribunal. He concluded that the application of the Rules, and their prescription of the weight to be given to the public interest in the deportation of foreign criminals, were not compatible with the balancing exercise that had to be undertaken in considering the relevant factors arising under article 8 in a particular case. It had been sufficient for the Upper Tribunal to take into account those relevant factors. Undue or unique reliance on the Rules, at the expense of a comprehensive survey of the pertinent article 8 factors was not appropriate.
These appeals concern the obligations of insurance companies under various contracts of employers liability (EL) insurance. In particular, the appeals concern the scope of the insurers obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later. The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendants negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employees mesothelioma was caused by exposure to asbestos during a particular policy year. At first instance Burton J held that the policies should all be interpreted as having a causation wording. He therefore held that the liability trigger under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed. A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease contracted during the relevant insurance period); however they concluded that other policies (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma sustained or contracted at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employees body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an employee sustained or contracted mesothelioma during a particular policy period? The Supreme Court dismisses the insurers appeal by a 4 1 majority; Lord Phillips dissenting on the second issue. Lord Mance gives the main judgment. To resolve the meaning of the EL policies it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more generally [19]. Several features point the way to the correct construction. First, the wordings of the policies on their face require the course of employment to be contemporaneous with the sustaining of the injury [20]. Second, the wordings demonstrate a close link between the actual employment undertaken during each period and the premium agreed by the parties for the risks undertaken by the insurers in respect of that period. Third, on the insurers case there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to disease or injury in another later period [24]. Fourth, on the insurers case employers would be vulnerable to any decision by the insurers not to renew the policy. A decision not to renew might arise from the employers complying with their duty to disclose past negligence upon any renewal. Employers who discovered that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease would have such a duty. The insurers could then simply refuse any renewal or further cover [25]. Fifth, the way most of the policies deal with extra territorial issues throws doubt on any suggestion that the wordings are so carefully chosen that a court should stick literally to whatever might be perceived as their natural meaning [28]. Section 1 of the Employers Liability Compulsory Insurance Act 1969 also points the way to the correct interpretation. This states that every employer shall insure, and maintain insuranceagainst liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment. In order to give proper effect to the protective purpose of that legislation, the Act requires insurance on a causation basis [47]. There is no difficulty in treating the word contracted as looking to the causation of a disease, rather than its development or manifestation. The word contracted used in conjunction with disease looks to the initiating or causative factor of the disease [49]. While the word sustained may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later [50]. In relation to the second issue, the question is whether the EL policies cover employers liability for mesothelioma arising under the special rule in Fairchild/Barker [71]. Under that rule the law accepts a weak or broad causal link between the employers negligence and the employees mesothelioma. When construing the EL policies the concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule [74]. The purpose of the EL policies was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies [88]. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurers obligation to indemnify the employer [74]. Lord Phillips dissents on the second issue. The special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. This conclusion is not affected by section 3 of the Compensation Act 2009, which did not alter the jurisprudential basis of the Fairchild/Barker approach [132] [133].
Mr Thevarajah entered into an agreement with the Appellants, Mr Riordan and Eugene and Barrington Burke, to buy the shares that they owned in Prestige Property Developer UK Ltd (the Company). Having paid 1.572m to the Appellants, Mr Thevarajah sought specific performance of the agreement in proceedings issued in March 2013. On 17 May 2013, Mr Thevarajah obtained a freezing order (the freezing order) which required the Appellants to provide by 24 May 2013 information and documents relating to all their assets, including assets held by the Company, as well as details of bank accounts. The Appellants did not provide the disclosure required by the freezing order by 24 May 2013. Mr Thevarajah subsequently applied for and obtained an unless order from Henderson J, which provided that: (i) the Appellants were required to disclose certain identified assets that they had failed to disclose; and (ii) in default of compliance by 1 July 2013, the Appellants would be debarred from defending the claim. The Appellants failed to comply fully with the unless order. Mr Thevarajah subsequently applied to the Chancery Division of the High Court for an order debarring the Appellants from defending their claim; the Appellants applied for a determination that they had complied with the unless order or, if they had not, for relief from sanctions. On 9 August 2013, Hildyard J heard the applications, made the debarring order sought by Mr Thevarajah and dismissed the Appellants application for relief from sanctions. There was no appeal against Hildyard Js order. The trial of the action was due to start on 3 October 2013. Having instructed fresh solicitors, the Appellants issued a second application for relief from sanctions (the second relief application) on 2 October, accompanied by a lengthy affidavit which provided what the Appellants considered to be full disclosure as required by the freezing order. Mr Andrew Sutcliffe QC, sitting as a Deputy High Court Judge, heard the second relief application and granted the defendants relief against the debarring order, and fixed a fresh date for the trial. Mr Thevarajah appealed to the Court of Appeal. The Court of Appeal allowed the appeal and restored the debarring order imposed by Hildyard J. The Appellants now appeal to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Neuberger gives the only judgment, with which the other Justices agree. The Appellants contended that the Court of Appeal had erred in two respects: (i) in holding that the Appellants needed to establish a material change of circumstances in order to succeed on the second relief application; or, in the alternative (ii) in holding that the Appellants had failed to establish such a material change. The Appellants first ground is rejected. The effect of Henderson Js unless order, coupled with Hildyard Js finding that the Appellants had failed to comply with the disclosure requirements in that order, was that the Appellants were debarred from defending the claim unless they were granted relief from sanctions under CPR 3.9. [11] Hildyard Js reasoning in refusing relief from sanctions is consistent with authoritative guidance subsequently set out by the Court of Appeal in the cases of Mitchell v News Group Newspapers Ltd [2014] 1 WLR 795 and Denton v TH White Ltd [2014] 1 WLR 3926. [13] The Court of Appeals conclusion that the Deputy Judge should not have considered the second relief application on its merits because CPR 3.1(7) required the Appellants to show that there had been a material change of circumstances since the hearing of the first relief application, was correct. [14 19] Even if CPR 3.1(7) did not apply, this was the position as a matter of ordinary principle. [18] The Appellants second ground is also rejected. Where a party has had imposed on it a debarring order for failing to comply with an unless order, its subsequent compliance with that unless order cannot without more amount to a material change of circumstances. [21] In refusing relief from sanctions, a court is effectively saying that it was now too late for that party to comply with the unless order and obtain relief from sanctions. [21] However, that does not mean that late compliance cannot, in certain circumstances, give rise to a successful second application for relief from sanctions, at least where it occurs in the context of some other relevant change in circumstances. [22] On the facts, there were no grounds which justified the Deputy Judge entertaining the second relief application on the merits. [23] The Deputy Judge was not entitled to come to a different conclusion on what where essentially the same facts as were before Hildyard J. [24] Further, the evidence before the Deputy Judge was insufficient to justify his finding that the Appellants former solicitors were partly to blame for the Appellants failure to comply with the unless order. [25] The issue of delay is also relevant. There is considerable force in the Court of Appeals view that the Appellants should have been in difficulties on the second relief application because of their delay in bringing it. The second relief application was made eight weeks after Hildyard J made his order and one day before the trial was due to begin, without any satisfactory explanation. [26]
London suffered from serious rioting from 6 to 9 August 2011. In one incident at 11:40pm on 8 August 2011, a gang of youths broke into the Sony DADC distribution warehouse at the business park on Solar Way in Enfield. They stole goods from the warehouse and threw petrol bombs, starting a fire which destroyed the warehouse and the stock, plant and equipment within. The insurers of Sony DADC (which were the lessees of the warehouse), the insurers of the freehold owner of the warehouse, and companies (which were customers of Sony DADC and whose uninsured stock in the warehouse had been destroyed) made claims for compensation from the appellant, the Mayors Office for Policing and Crime (the MOPC) under s.2 of the Riot (Damages) Act 1886 (the 1886 Act). The MOPC contested those claims on both its liability to pay compensation and the quantification of loss. The High Court and the Court of Appeal decided that the MOPC was liable and that finding is no longer in issue. The remaining issue before the Supreme Court is the quantification of the claims, which raises a question of statutory construction: whether persons who suffer loss when rioters destroy their property can in principle obtain compensation for consequential losses, including loss of profits and loss of rent, under s.2 of the 1886 Act. The High Court held that s.2 provided compensation only for physical damage and not for consequential losses, but the Court of Appeal reversed that decision, holding that s.2 provided a right to compensation for all heads of loss, including consequential loss, proximately caused by physical damage to property for which the trespassing rioter is liable at common law. The Supreme Court unanimously allows the MOPCs appeal. Lord Hodge gives the lead judgment, with which the other Justices agree. The wording of the 1886 Act by itself does not provide a clear cut answer to the issue. In particular, s.2(1) does not clarify whether the loss for which a claimant may claim compensation is simply the physical damage to his property, or extends to consequential losses [14 15, 17]. The 1886 Act does not expressly provide compensation for either (a) personal injury caused by rioters, or (b) damage to property in the streets (e.g. a parked car) and there is no jurisprudence to support the view that such losses could be claimed. On any view, therefore, the Act provides only partial compensation for damage caused by rioters [16]. Legislative history The 1886 Act must be construed in the light of the prior legislative history [13]. Parliament first provided for compensation for riot damage in the Riot Act 1714 (the 1714 Act). Section 6 provided that when rioters had demolished certain buildings, the inhabitants of the hundred (an historical administrative subdivision of a county or shire) were liable to pay damages to the injured party [18 19]. The 1714 Act did not specify the scope of the damages to be paid by the hundred, so guidance was provided by the courts, which extended the right to compensation for loss occasioned to furniture and household goods [20 23]. However, this case law does not support a general principle that the hundred stood as sureties for the wrongdoer [24]. This is because: (1) While the 1714 Act imposed on the hundred the obligation to compensate only for loss occasioned by the destruction of, or damage to, buildings, the prior laws governing the hundreds liability for a failure to raise hue and cry imposed no such restriction [25]. (2) While under the 1714 Act the hundred incurred strict liability for the riot, the prior hue and cry legislation allowed the community to escape liability if hue and cry were raised and the offenders caught: the hundred were not sureties for the offender unless they failed to apprehend him [26]. (3) Most importantly, the legislative history after the 1714 Act shows there was no broad principle of compensation. In particular, the wording of the Remedies against the Hundred (England) Act 1827 (which amended and consolidated the prior legislation and remained in force until the 1886 Act) makes it clear that the statutory compensation was confined to physical damage to property [27 30]. The 1886 Act made certain changes to the statutory scheme, including transferring the liability to pay compensation from the hundred to the local police authority, and directing the police authority to have regard to the claimants conduct when deciding what compensation was due. None of these changes suggest an intention to extend the measure of compensation beyond physical damage to property [31 32]. When regard is had to the words of the 1886 Act in the context of its legislative history, there is no reason to think that Parliament ever intended that the statutory compensation scheme should mirror the rioters liability in tort, or should develop as the law of damages for tort developed [33]. The Act, like its predecessors, sets out a self contained statutory compensation scheme which does not extend to cover consequential losses [34].
This appeal concerns the circumstances in which an employer is vicariously liable for wrongs committed by its employees, and also whether vicarious liability may arise for breaches by an employee of duties imposed by the Data Protection Act 1998 (DPA). The appellant operates a chain of supermarkets and employed Andrew Skelton on its internal audit team. In July 2013, Skelton received a verbal warning after disciplinary proceedings for minor misconduct and bore a grievance against the appellant thereafter. In November 2013, Skelton was tasked with transmitting payroll data for the appellants entire workforce to its external auditors, as he had done the previous year. Skelton did so, but also made and kept a personal copy of the data. In early 2014, he used this to upload a file containing the data to a publicly accessible filesharing website. Skelton later also sent the file anonymously to three UK newspapers, purporting to be a concerned member of the public who had found it online. The newspapers did not publish the information. Instead, one alerted the appellant, which took immediate steps to have the data removed from the internet and to protect its employees, including by alerting police. Skelton was soon arrested and has since been prosecuted and imprisoned. The respondents, some of the affected employees, brought proceedings against the appellant personally and on the basis of its vicarious liability for Skeltons acts. Their claims were for breach of statutory duty under the DPA, misuse of private information, and breach of confidence. At trial, the judge concluded that the appellant bore no primary responsibility but was vicariously liable on each basis claimed. The judge rejected the appellants argument that vicarious liability was inapplicable given the DPAs content and its foundation in an EU Directive. The judge also held that Skelton had acted in the course of his employment, on the basis of Lord Toulsons judgment in Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 (Mohamud). The appellants subsequent appeal to the Court of Appeal was dismissed. The Supreme Court unanimously allows the appeal. Lord Reed gives the only judgment, with which Lady Hale, Lord Kerr, Lord Hodge and Lord Lloyd Jones agree. The primary issue before the Court is whether the appellant is vicariously liable for Skeltons conduct. The starting point is Lord Toulsons judgment in Mohamud, which was not intended to change the law of vicarious liability but rather to follow existing precedents [16 21]. One such authority was the House of Lords decision in Dubai Aluminium Co Ltd v Salaam [2003] 2 AC 366 (Dubai Aluminium), where Lord Nicholls explained the existing close connection test of whether the wrongful conduct was so closely connected with acts the employee was authorised to do that for the purposes of the liability of the employer to third parties, it may fairly and properly be regarded as done by the employee while acting in the ordinary course of his employment. The test had to be applied having regard to the circumstances of the case and previous court decisions, following Dubai Aluminium [22 23]. Having explained the close connection test, Lord Toulson summarised the law in the simplest terms. The first question was what functions or field of activities the employer had entrusted to the employee. Next, the court must decide whether there was sufficient connection between the position in which he was employed and his wrongful conduct to make it right for the employer to be held liable under the principle of social justice which goes back to Holt CJ. This had been more fully explained in Dubai Aluminium by Lord Nicholls as set out above [25]. Lord Toulson was not suggesting any departure from Lord Nicholls approach [26]. Further, read in context, Lord Toulsons comments that on the facts of Mohamud there was an unbroken sequence of events and a seamless episode referred to the capacity in which the employee had been purporting to act when the wrongful conduct took place, namely about his employers business [28]. Lord Toulsons comment, in relation to the facts of Mohamud, that motive is irrelevant should not be taken out of context: whether the employee was acting on his employers business or for personal reasons was important, but, on the facts of Mohamud, the reason why he had committed the tort could not make a material difference to the outcome [29 30]. The Court concludes that the judge and the Court of Appeal misunderstood the principles governing vicarious liability in a number of respects. First, the online disclosure of the data was not part of Skeltons field of activities, as it was not an act which he was authorised to do. Secondly, the satisfaction of the factors referred to by Lord Phillips in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 was not to the point: those factors were relevant to whether, where the wrongdoer was not an employee, the relationship between wrongdoer and defendant was sufficiently akin to employment for vicarious liability to subsist. They were not concerned with whether employees wrongdoing was so closely connected with their employment that vicarious liability ought to be imposed. Thirdly, a temporal or causal connection alone does not satisfy the close connection test. Finally, it was highly material whether Skelton was acting on his employers business or for purely personal reasons [31]. Considering the question afresh, no vicarious liability arises in the present case. Skelton was authorised to transmit the payroll data to the auditors. His wrongful disclosure of the data was not so closely connected with that task that it can fairly and properly be regarded as made by Skelton while acting in the ordinary course of his employment. On long established principles, the fact that his employment gave him the opportunity to commit the wrongful act is not sufficient to warrant the imposition of vicarious liability. An employer is not normally vicariously liable where the employee was not engaged in furthering his employers business, but rather was pursuing a personal vendetta. The close connection test elucidated by Lord Nicholls in Dubai Aluminium, in light of the cases that have applied it and on the particular facts of the present appeal, is not satisfied [32 47]. The second major issue before the Court is whether the DPA excludes imposition of vicarious liability for either statutory or common law wrongs. It is not strictly necessary to consider this in light of the above conclusion, but as full argument was heard, it is desirable that the Court expresses a view [48]. Ultimately the Court finds the appellants argument that liability is excluded unpersuasive. Imposing statutory liability on a data controller like Skelton is not inconsistent with the co existence of vicarious liability at common law, whether for breach of the DPA or for a common law or equitable wrong, as the DPA says nothing about a data controllers employer. It is irrelevant that a data controllers statutory liability under the DPA is based on a lack of reasonable care, while vicarious liability for an employees conduct requires no proof of fault. The same contrast exists at common law between, for example, an employees liability in negligence and an employers vicarious liability. It makes no difference that an employees liability may arise under statute instead [54 55]. The appeal is therefore allowed [56].
This appeal concerns the assessment of claimants for personal independence payment (PIP), a non means tested allowance paid to certain people with long term health problems or disability. The appeals focus is on one of the markers used to determine the extent to which the ability of claimants to carry out daily living activities is limited by their physical or mental condition. The particular activity in question is engaging with other people face to face and the issue is the interpretation of descriptor 9c found in Part 2 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (the Regulations). The Regulations are made under Part 4 of the Welfare Reform Act 2012 (the Act). Descriptor 9c reads: Needs social support to be able to engage with other people. The respondent is a man in his forties. He made a claim for PIP in February 2015. His entitlement to the daily living component of the allowance at the standard rate depended on whether he satisfied descriptor 9c, which would give him 4 points towards the required score of at least 8 points overall under regulation 5. His claim was rejected on the ground that his ability to engage with other people face to face only satisfied descriptor 9b, Needs prompting to be able to engage with other people, which gave him a score of 2 points. The respondent appealed unsuccessfully to the First tier Tribunal (FTT). His appeal to the Upper Tribunal was allowed on the ground that the FTT had given an inadequate explanation of why he satisfied descriptor 9b rather than 9c. The case was remitted to the FTT for rehearing and directions were given as to the interpretation of descriptor 9c. The appellant Secretary of State appealed to the Inner House of the Court of Session in relation to the directions. The Inner House refused the appeal while modifying some of the directions. The Secretary of State appealed to the Supreme Court. Before the Supreme Court the Secretary of State accepted that the social support required for descriptor 9c may consist of prompting, as with 9b, but for this descriptor the support had to be from a person trained or experienced in assisting people to engage in social situations. Whilst he accepted that a friend or family member who knows the claimant well could have the relevant training or experience, he argued that a need for help simply from someone familiar or trusted was not sufficient (the qualitative issue). He also argued that the social support needed to be contemporaneous with the face to face engagement, ie that the person offering the social support had to be physically present (the timing issue). The Supreme Court unanimously allows the appeal in the limited sense of interpreting the relevant legal provisions differently from the Inner House. The respondents claim will now return to the FTT for determination in accordance with this interpretation. The judgment is given by Lady Black. The qualitative issue The activity of engaging with people face to face can take many differing forms, as can the form of the assistance that is needed for the claimants engagement to occur [29 30]. A narrow and technical approach to the words social support in descriptor 9c is unwarranted; it is inconsistent with the governments objective of creating a benefit which is easier to understand and reaches those who need extra support to live independently and participate in everyday life [32]. What brings the claimant within descriptor 9c rather than 9b is that, to be able to engage with others, he or she needs the support to come from someone trained or experienced in assisting people to engage in social situations i.e. the support will only be effective if delivered by someone who is not just familiar with the claimant, but also trained/experienced in assisting engagement in social situations [34 35]. Careful scrutiny of the facts will sometimes be necessary in order to determine whether descriptor 9c applies, including probing the information provided by sensitive questions [38] and, where support is already being provided by family/friends, exploring how they have come to know what to do, whether that help could come from any well meaning friend or family member, and what additional help (if any) is required [37]. The timing issue It is helpful to consider examples of practical ways in which a person can be helped to engage face to face with others. For instance, preparation prior to the engagement might avoid overwhelming psychological distress, and, during the engagement, a supporter might be able to give the claimant reminders, direct the conversation away from topics that trigger anxiety, give private signs of reassurance, or recognise the need to remove the claimant from the meeting [40]. The Secretary of States insistence on it being necessary for the supporter to be present at the engagement would stand in the way of means of support which do not involve physical presence and would be likely to impede attempts to improve the claimants abilities to handle matters in future with less support [41]. It would be undesirable to construe descriptor 9c in a way that runs counter to these considerations, and there is nothing in the wording of the descriptor to require that. The word needs indicates a continuing need, to be found as respects every time over the 12 month period made relevant by s 81 of the Act, but it does not, of itself, exclude the possibility of assistance outside the confines of the engagement [43] and nor is there anything else to dictate such an interpretation [45]. Given that social support is likely to take many different forms, depending on the individual needs of the claimant, it is undesirable to attempt to prescribe in the abstract which other forms of support will be sufficient. It will be a question of fact and degree [46], addressed with close attention to the words of the descriptor and the required period condition [48]. The Inner Houses acceptance that a temporal or causal link was required between the help given and the activity should not be adopted. It is difficult to see how support which is linked in time to a face to face engagement but has no causal link to what occurs could have any relevance [47].
When she was 13 Ms Jackson, the pursuer, was hit by a car driven by the defender. She appeals to the Supreme Court from the Inner House of Sessions assessment of her contributory negligence at 70%. Section 1(1) of the Law Reform (Contributory Negligence) Act 1945 states: Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimants share in the responsibility for the damage. The collision took place on 12 January 2004 on the A98 road between Banff and Fraserburgh, near its junction with a private road leading to the farm where the pursuer lived with her family. There was a 60mph speed limit, and no street lighting. The pursuer alighted from her school bus, which had just parked on the opposite side of the road from the entrance to the farm road. It was about 40 minutes after sunset and light was fading. The respondent was driving home in the opposite direction, travelling at about 50mph. His lights were on. The pursuer passed between the rear of the bus, which was still stationary, and the car behind it. She paused briefly at the offside rear of the bus, took one or two steps into the road into the path of the defenders oncoming car, before breaking into a run. While running she was struck by the defenders car, still travelling at about 50mph. She was projected into the air, the car passed beneath her and she landed on the road. The pursuer sustained serious injuries. The Lord Ordinary found that the defender had failed to drive with reasonable care and was negligent. If he had been travelling at a reasonable speed the pursuer would have made it safely past him, so the accident would not have occurred. The Lord Ordinary also considered that the principal cause of the accident was the reckless folly of the pursuer: either she did not look to the left before crossing or, having looked, she failed to identify and react sensibly to the presence of the car in close proximity. On either scenario the greater cause of the accident was her movement into the path of the defenders car at a time when it was impossible for him to avoid a collision. The Lord Ordinary assessed the pursuers contributory negligence at 90%. On appeal the Extra Division of the Inner House allowed the pursuers appeal and assessed her contributory negligence instead at 70%. The Supreme Court allows Ms Jacksons appeal by a majority of 3 2 (Lord Hodge and Lord Wilson dissenting) and awards her 50% of the agreed damages. Lord Reed (with whom Lady Hale and Lord Carnwath agree) gives the lead judgment allowing the appeal. Lord Hodge (with whom Lord Wilson agrees) would have dismissed the appeal. Lord Reed did not accept the appellants contention that there was no basis for a finding of contributory negligence at all on the findings made by the Lord Ordinary. [17 18] Section 1(1) of the 1945 Act does not specify how responsibility is to be apportioned. Decided cases show two aspects to apportionment: the respective causative potency of the parties acts and their respective blameworthiness. The court consistently imposed a high burden on drivers to reflect the potentially dangerous nature of driving. [20 26] There is no demonstrably correct apportionment. Since different judges may legitimately take different views of what is just and equitable in particular circumstances, those differing views should be respected, within the limits of reasonable disagreement. [27 28] The lower court must have gone wrong: in the absence of an identifiable error, only a difference of view as to apportionment that exceeds the ambit of reasonable disagreement will warrant that conclusion. [35] Apportionments are not altered because of disagreement as to the precise figure. However, appellate courts have intervened on the basis of disagreement as to whether one party bore much greater responsibility than the other: there is a qualitative difference between a finding of 60% contribution and a finding of 40%. [38] The Extra Division provided only a very brief explanation of their apportionment of 70%. Given their conclusion that the causative potency of the defenders conduct was greater than that of the pursuer, the result can only be explained on the basis that they considered the pursuer far more blameworthy. They rightly considered that she did not take reasonable care for her own safety, but regard has to be had to her circumstances. She was only 13. An assessment of the defenders speed in the circumstances was far from easy. Attempting to cross a relatively major road with a 60mph speed limit, after dusk and without street lighting, is not straightforward, even for an adult. The Extra Division considered that the defenders behaviour was culpable to a substantial degree, with which Lord Reed agrees. Overall the Extra Divisions reasoning does not provide a satisfactory explanation of their conclusion that the pursuer bore the major share of responsibility. Lord Reed considered the defenders conduct played at least an equal role to that of the pursuer in causing the damage and was at least equally blameworthy. He therefore allows the appeal and awards 50% of the agreed damages to the pursuer. [39 44] Lord Hodge would have dismissed the appeal. He agrees on the facts and the legal principles set out in Lord Reeds judgment. [45] The Lord Ordinarys assessment of 90% appears to have been influenced by eyewitnesses impressions, however the defenders prior failure to reduce his speed was a potent cause of the accident, which put a different perspective on the matter. The Extra Division was entitled to conclude the Lord Ordinary had gone wrong. The Extra Divisions assessment is not open to the same criticism, given the Lord Ordinarys findings. [47 49] Not to look or to knowingly run into the path of the car displayed a very high degree of carelessness. The Extra Division were entitled, because of the extent of her blameworthiness, to attribute to the pursuer the major share of responsibility. [57]
The issue in this appeal is whether the conditions of entitlement to State Pension Credit (SPC) are compatible with a rule of EU law which prohibits discrimination between nationals of different Member States. State Pension Credit is a means tested non contributory benefit. Section 1(2)(a) of the State Pension Credit Act 2002 provides that a claimant is entitled to SPC if he or she is in Great Britain. The State Pension Credit Regulations 2002 (the Regulations) provide when someone is or is not to be treated as being in Great Britain. This is not just a matter of where the person is. In outline, a person is treated as not in Great Britain if he or she is not habitually resident in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland (the Common Travel Area). And no person is to be treated as habitually resident in the Common Travel Area if that person does not have a right to reside in the Common Travel Area. (Cumulatively, these are the conditions.) Regulation 1408/71 (EC) (the EU Regulation) provided for the application of social security schemes to employed persons and their families moving within the European Community. (It has now been replaced by other EU legislation.) The Regulation applies to SPC. One of the categories of person to which it applies is employed person. This includes EU nationals who have retired from employment but who remain insured by the social security system of a Member State because of contributions paid during their working life. The dispute in this case relates to the effect of Regulation 3. It provides that persons to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as nationals of that State. This prohibits both direct discrimination (in broad terms, where people are treated differently because of their nationality) and indirect discrimination (broadly, where an apparently neutral test is applied to nationals and non nationals and places non nationals at a particular disadvantage). Mrs Patmalniece is Latvian pensioner, now 72 years of age and in receipt of a Latvian retirement pension. She came to the UK in June 2000. Her asylum claim was unsuccessful, but she was not removed from the UK. She has never worked in the UK. Latvia joined the EU on 1 May 2004. In August 2005, Mrs Patmalniece claimed SPC. But her claim was refused on the ground that she was not in Great Britain because she did not have a right to reside in the UK. She appealed against the refusal of SPC, arguing that the requirement that she have a right to reside in the UK was directly discriminatory on the grounds of her nationality, in breach of Regulation 3 of the EU Regulation. The Social Security Appeal Tribunal allowed her appeal. However, the Social Security Commissioner allowed the Secretary of States appeal and held the conditions to be indirectly discriminatory but justified. The Court of Appeal upheld that decision. Mrs Patmalniece appealed to the Supreme Court. The Supreme Court, by a majority, dismisses the appeal. It holds unanimously that the conditions are indirectly discriminatory. But the majority (Lord Walker dissenting) hold that this discrimination is justified because the Regulations are a proportionate response to the legitimate aim of protecting the UK public purse and that this justification is independent of the claimants nationality. The court also holds unanimously that the different treatment afforded to Irish nationals is protected by the Protocol on the Common Travel Area. Lord Hope gives the main judgment, with which Lord Rodger agrees. Lady Hale gives a separate judgment. Lord Brown agrees with both Lord Hopes and Lady Hales judgments. Lord Walker gives a dissenting judgment. The court considers three issues: (1) do the conditions of entitlement for SPC give rise to direct discrimination? (2) If they give rise only to indirect discrimination, is that discrimination justified? (3) Is that conclusion undermined by the favourable treatment that the Regulation gives to Irish nationals? Direct/indirect discrimination All UK nationals would automatically satisfy the right to reside element of the test, whereas nationals of other Member States would not automatically do so. However, UK nationals still had to satisfy the requirement of habitual residence. The result is that the in Great Britain test would be satisfied by some, but not all, UK nationals, and some, but not all, nationals of other Member States. It was more likely to be satisfied by UK nationals than nationals of other member states: [25] [28]. The court applies the decision of the Grand Chamber of the European Court of Justice in Bressol v Gouvernement de la Communaut Franaise (Case C 73/08). In Bressol the ECJ had considered a Belgian law which set down eligibility criteria to study in Belgium which were similarly structured to the entitlement conditions for SPC. Although Advocate General Sharpston in Bressol had proposed that the ECJ treat the provisions of the Belgian law as directly discriminatory on the grounds of nationality, the ECJ did not follow her approach. Although the reasons for the ECJs position were not fully explained in its judgment, the court has decided that it should follow its conclusion and hold that the entitlement conditions for SPC were only indirectly discriminatory: [30] [35], [73], [89] [92]. Justification A difference in treatment which amounts to indirect discrimination can be justified only if it is based on objective considerations independent of the nationality of the persons concerned and is proportionate to a legitimate aim: [36], [94]. The parties were agreed that the measures here were proportionate. The issues were whether the conditions pursued a legitimate aim and whether it was independent of the nationality of the persons affected. The majority holds that both tests are satisfied. The aim was to ensure that claimants were economically or socially integrated in the UK, or elsewhere in the Common Travel Area, thereby protecting the social security system against the risk of benefit or social tourism: [38], [46], [51] [52], [96] This justification was independent of nationality. Lady Hale notes, additionally, that the Governments aims in introducing the right to reside test were consistent with the aims of Regulation 1408/72 and that it is logical that if a person does not have a right under EU law to reside in a particular state, that state should not have the responsibility under EU law for ensuring their minimum level of subsistence: [103]. Lord Walker dissents on the issue of justification. He would have held that the provisions were probably aimed at discriminating against economically inactive foreign nationals on the grounds of their nationality: [79]. The relevance of the treatment of Irish nationals The Appellant argued that, as entitlement to SPC was extended to Irish nationals, it was discriminatory not to extend it to nationals of other Member States. The court rejects that argument. The provision for Irish nationals in the conditions is protected by Article 2 of the Protocol on the Common Travel Area, which provides that the UK and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories: [54] [60], [80].
Mr Renford Braganza disappeared between 1am and 7am on 11 May 2009 while working as the Chief Engineer on an oil tanker in the mid North Atlantic managed by the respondents (collectively BP). BP formed the opinion that the most likely explanation for his disappearance was that he had committed suicide by throwing himself overboard. As a result his widow was not entitled to death benefits under his contract of employment, which provided that compensation would not be payable if in the opinion of the Company or its insurers, the deathresulted fromthe Officers wilful act, default or misconduct. The question arising in this appeal is the proper test for the court to apply when deciding whether BP was entitled to reach the opinion it did. BP set up its own inquiry team into Mr Braganzas disappearance, to examine whether its systems could be improved, and it reported on 17 September 2009. The report identified six factors supportive of suicide and concluded that the most likely scenario was that Mr Braganza had jumped overboard deliberately. The report was forwarded to Mr Sullivan, the General Manager of the BP company which employed the officers on board the vessel. Mr Sullivan made no further inquiries of his own and on the basis of the report concluded that there had been wilful default within the meaning of Mr Braganzas employment contract so that death in service benefits were not payable to his widow. Mrs Braganza brought a claim in contract against BP for death benefits and damages for negligence under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934. In the High Court the judge was unable to make a finding as to the cause of Mr Braganzas death on the evidence. He upheld the contractual claim, finding that the opinion formed by BP was not reasonable because Mr Sullivan did not direct himself that cogent evidence commensurate with the seriousness of a finding of suicide was necessary and he had failed to take into account the real possibility that Mr Braganza had suffered an accident. The judge rejected the claim for negligence and Mrs Braganza did not appeal against this. BPs appeal in relation to the contractual claim was allowed by the Court of Appeal, which held that the employer did not have to approach the matter the way required by the judge, and that the conclusion of suicide was a reasonable one for BP to reach in all the circumstances. The Supreme Court by a majority of 3 to 2 allows Mrs Braganzas appeal. In the majority, Lady Hale gives the lead judgment and Lord Hodge gives a concurring judgment. Lord Kerr agrees with Lady Hale and Lord Hodge. Lord Neuberger gives a dissenting judgment, with which Lord Wilson agrees. The appeal raises two inter linked questions of principle: (i) the meaning of the general requirement that the decision of a contractual fact finder must be a reasonable one and (ii) the proper approach of a contractual fact finder who is considering whether a person may have committed suicide [17]. The court is not the primary decision maker but will seek to ensure that where there is a conflict of interest for the party charged with making a decision under the contract (which is heightened where there is a significant imbalance of power between the contracting parties), such contractual powers are not abused. The standard of review of contractual decisions is akin to that adopted for judicial review of administrative action [19]. That test involves two limbs: the first focusing on the decision making process and the second focused on its outcome [24]. The court will imply a term into the contract that the decision making process be lawful and rational in the public law sense, ie that the decision is made rationally, in good faith and consistently with its contractual purpose [30], but much depends on the context of the particular contract involved. This case involved an employment contract which has an implied obligation of trust and confidence, in accordance with which any fact finding function entrusted to the employer concerning whether a person has committed suicide must be exercised [32]. It would have been open to BP to conclude that it was unable to form an opinion as to the cause of Mr Braganzas death but instead it made a positive finding of suicide and the question was what was required for this conclusion [33]. As to this, it is not the consequences of a finding of suicide which demands that there be cogent evidence to support it but its inherent improbability [35]. A decision that an employee has committed suicide is not a rational or reasonable decision unless the employer has had it clearly in mind that suicide is such an improbability that cogent evidence is required to form a positive opinion that it has taken place [36]. On the facts of this case, Mr Sullivan should not simply have accepted the view of the inquiry, which was conducted for a different purpose, that suicide was the most likely explanation for Mr Braganzas disappearance. In order to make a positive finding of suicide he had to direct himself that cogent evidence was required sufficient to overcome its inherent improbability [39]. In this case there were no positive indications of suicide and the six factors relied on in the report were straws in the wind [40]. They should have been set against the evidence of his normal behaviour immediately before his disappearance, his concern about the weather and the fact that he was a Roman Catholic, which increased the inherent improbability of suicide in his case [41]. The lack of evidence supporting the hypothesis of an accident was still consistent with Mr Braganza having sustained an accident through carelessness [59]. Thus the judge had been right to find that the decision was unreasonable in the public law sense of having been formed without taking relevant matters into account [42, 63]. Lord Neuberger agrees with the majority that where a contract allocates power to a party to make decisions which have an effect on both parties the court should review the decision in the same way as it reviews administrative decisions [103]. BP had to carry out the investigation with honesty, good faith and genuineness, and avoid arbitrariness, capriciousness, perversity and irrationality. The courts approach when reviewing this decision should be similar to that of an appellate court reviewing a trial judges decision. In the present case, Lord Neuberger would have held that there was a combination of reasons which could fairly be said to be sufficiently cogent to justify the finding that Mr Braganza had taken the unusual and tragic course of committing suicide [114 125].
This appeal arises out of a joint venture between Apex Global Management Ltd (Apex), a Seychelles company owned by Mr Almhairat, and Global Torch Ltd (Global), a British Virgin Islands company owned by Prince Abdulaziz (the Prince), Mr Abu Ayshih and Mr Sabha. Apex and Global set up an English company Fi Call Ltd (Fi Call), and then fell out badly. In December 2011, Global issued a petition under sections 994 996 of the Companies Act 2006 against Apex, Mr Almhairat and Fi Call seeking share purchase orders, and pecuniary and declaratory relief. Ten days later, Apex issued a very similar cross petition against the Prince, the Princes father Prince Mishal, Global, Mr Abu Ayshih, and Fi Call. Allegations and counter allegations of seriously unlawful misconduct are involved, including money laundering, financial misappropriation, and funding of terrorism. The two petitions were ordered to be heard together. The relief sought by Apex included a claim for just under US$6 million plus interest, which it contended was owing to Apex by the Prince. The Prince denied that the $6m was owing on the ground that he had paid it into the bank account of certain companies. In July 2013 Vos J made a number of directions, including that each party file and serve a disclosure statement certified by a Statement of Truth signed personally. The Prince, who had objected to the order, failed to comply. This was on the basis that, as a member of the Saudi Royal Family, he was bound by a protocol which prevented him from taking part in litigation personally or from signing court documents. Apex applied to Norris J for, and obtained, an order that unless the Prince complied with the order, and in particular signed a Statement of Truth, his Defence be struck out and judgment be entered against him (an Unless Order). The Prince maintained his position and Apex applied to Norris J for, and obtained, judgment in its favour under Civil Procedure Rules (CPR) r.3.5(2). The Prince applied under CPR 3.1(7) for a variation of the Vos Js order and for relief from sanctions. Mann J refused to vary Vos Js order and rejected the application for relief from sanctions under CPR 3.9. In July 2014, Hildyard J refused an application for summary judgment in relation to the question of whether the $6m had in fact been repaid. The Prince unsuccessfully appealed the decisions of Vos J, Norris J and Mann J to the Court of Appeal, and was given permission to appeal to the Supreme Court on terms that he paid $6m to his solicitors to abide the order of the Court. The issue in this appeal is therefore whether The Prince is entitled to the relief he seeks. The Supreme Court dismisses the appeal by a majority of 4 1. Lord Neuberger (with whom Lord Sumption, Lord Hughes and Lord Hodge agree) gives the main judgment. Lord Clarke gives a dissenting judgment. The language of the CPR and of the relevant Practice Direction suggests that the standard form of disclosure by a party does require personal signing by the party and such an order reflected the normal practice [12 13]. Vos Js decision to make the order was well within the margin accorded to case management decisions [15]. Similarly, the approaches taken by Norris J to making an Unless Order and of Mann J to refusing relief from sanctions each represented a correct approach in principle and a careful consideration of the competing arguments, and Norris Js second decision was almost administrative in nature [18]. The decisions of Vos J, Norris J and Mann J are individually unassailable [20 21]. The contention that the consequence of these orders is disproportionate is difficult to maintain; the importance of litigants obeying court orders is self evident and if the disobedience continues notwithstanding the imposition of a sanction, the enforcement of the sanction is almost inevitable [23]. There are no special factors which justify reconsidering the original orders, and the Prince had two very clear opportunities to comply with the simple obligation to give disclosure in an appropriate fashion. [24 25]. The strength of a partys case on the ultimate merits of the proceedings is generally irrelevant when it comes to case management issues of this sort, though there may be an exception where a party has a case the strength of which would entitle him to summary judgment. A trial involves directions and case management decisions, and it is hard to see why the strength of either partys case should, at least normally, affect the nature or the enforcement of those directions and decisions [29 31]. The Prince would have a good prospect of establishing that the $6m was paid as he contends in his defence, but his prospects cannot be said to be any higher [33]. It is true that the question of whether the Prince has paid may be determined in the very proceedings which he would have been debarred from defending. However, it is inherent in orders such as default judgment that the claimants will obtain judgment for relief to which it may subsequently be shown they were not entitled. [36 37]. The Supreme Court should be very diffident about interfering with the guidance given or principles laid down by the Court of Appeal when it comes to case management and application the CPR [39]. Lord Clarke would have allowed the appeal on the basis that justice requires that the Prince should be allowed to challenge the claim against him, and all parties would be protected because the court would be able to resolve all the issues between the parties [46]. Lord Clarke would not limit the relevance of the merits to a case where the strength of a partys case would entitle him to summary judgment. [75]. Nobody had suggested that it will not be possible to have a fair trial because of the Princes breach of the orders which led to judgment being entered against him [77]. Lord Clarke agrees with Lord Neubergers comments on the role of the Supreme Court in relation to case management and the CPR [79]. Postscript After the oral argument on this appeal had been concluded and the Court had notified the parties of its conclusion, but before judgment was handed down, the Court was advised of recent judgments of Hildyard J in the principal action, given on 3 and 5 November, when he reluctantly adjourned the trial to 2015 on the application of Mr Almhairat. It would not be right for this Court to address the question whether to reconsider its decision to dismiss the Princes appeal in the light of these developments, and in particular in the light of any breaches of the CPR or any orders by any of the Apex parties. If, in the light of events which have occurred since the Court heard and decided the Princes appeal, reconsideration, revocation or modification of any of the orders is appropriate then that is a matter which should be raised before a Judge of the Chancery Division, who should also be responsible for deciding how the $6m should be dealt with [42 44].
Mr and Mrs Hickin became the joint tenants of a three bedroom terraced house in Chelmsley Wood, Solihull in 1967 [2]. The Appellant, Elaine Hickin, is their daughter who has lived in the house since the beginning of the tenancy. The Respondent, Solihull Metropolitan Borough Council, became the freehold owner and landlord in 1980 [2]. On 3 October 1980, the tenancy became a secure tenancy pursuant to Part II of the Housing Act 1980 [2]. The Housing Act 1980 was later consolidated into the Housing Act 1985. Mr and Mrs Hickin both lived in the house until some time after 1980 when Mr Hickin left. The tenancy remained a joint tenancy in the names of Mr and Mrs Hickin [2]. Mrs Hickin continued to live there with the Appellant until her death on 8 August 2007 [2]. Shortly after Mrs Hickins death, the Respondent served noticed on Mr Hickin to quit the property as it considered that he had become the sole tenant and since he no longer resided there the tenancy was no longer secure. It also commenced proceedings against the Appellant for possession of the house [3]. The Appellant resisted the possession proceedings on the basis that on her mothers death the secure tenancy had vested in her, rather than her father, as a result of section 89 of Housing Act 1985 [3]. At the trial, on agreed facts, Deputy District Judge Hammersley ordered possession. HHJ Oliver Jones QC, sitting in the High Court, allowed the appeal and declared that the tenancy vested in the Appellant. The Court of Appeal allowed the Respondent councils appeal and restored the order of the Deputy District Judge [3]. The Appellant appealed to the Supreme Court. The issue in the appeal is whether the common law rights of Mr Hickin as joint tenant of the secure tenancy had been displaced by the Housing Act 1985 statutory scheme in favour of the Appellant upon the death of Mrs Hickin [3]. The Supreme Court dismisses the appeal by a 3 2 majority, Lord Mance and Lord Clarke dissenting. Lord Sumption gives the leading judgment (with whom Lord Walker agrees) restoring the order of the Deputy District Judge. Lord Hope, Deputy President, gives a short concurring judgment. A secure tenancy under the Housing Act 1985 is not just a personal right of occupation, but is also an estate in land [6]. At common law, upon the death of a joint tenant, the tenancy is vested in the surviving joint tenant or in all of the survivors if there is more than one [1]. There is no transmission of the tenancy upon death, rather the interest of the deceased person is extinguished [8]. Sections 87 to 91 of the Housing Act 1985 operate to determine the transmission of a secure tenancy [6]. Subject to limited exceptions, a secure tenancy cannot be passed on to a third person with the benefit of the statutory security, either during the lifetime of the tenant or in the course of the administration of their estate after their death, except if that person is qualified to succeed under section 87 [6]. A person is qualified to succeed if he or she is the deceased tenants spouse or civil partner or any other member of the deceaseds family, within a broad definition contained in section 113 [6]. Section 89 of the Housing Act 1985 vests a tenancy in a qualified person if (i) a secure tenant has died; (ii) the tenancy was a periodic tenancy; (iii) the qualified person occupies the house as her only or principal home for the period of twelve months proceeding the death and (iv) the tenant was not herself a successor within the meaning of Section 88 [5]. The Housing Act 1985 does not, however, wholly displace the common law. The Act necessarily operates by reference to basic principles of the law of property and does not modify the common law governing the transmission of tenancies; rather it merely affects the statutory security of the tenure available when the tenancy has been transferred [7]. At common law and by virtue of section 8 of the Housing Act 1985, Mr and Mrs Hickin were joint secure tenants for as long as one of them occupied the property as an only or principal home [8]. Upon Mrs Hickins death, Mr Hickin remained the sole tenant under the agreement with the Respondent, to which he remained party, but since he was not occupying the property the tenancy ceased to be secure [8]. Mr Hickin could have made the tenancy secure again by moving back to the property at any time before the local authority served a notice to quit [8]. The provisions of the Housing Act 1985 do not affect this result. For the purposes of section 89(1), a secure tenant dies only when a sole tenant dies; if the tenancy is a joint tenancy a secure tenant has not died if there remains at least one living joint tenant [11]. The provisions of the Housing Act 1985 concern the transmission of the tenancy to a person other than the previous tenant on account of the latters death. Where there is a surviving joint tenant, the whole statutory basis for disposing of the succession to the tenancy is absent [11]. It is only necessary to provide for the transmission of a tenancy on death if there is a vacancy but where a joint tenant remains living there is none [11, 25]. The surviving tenant has the same contractual rights as he always did [11]. If Parliament had intended the section to operate to exclude the common law rights of a joint tenant it would have done so expressly [12]. Lord Hope notes that such express provision was made in the Housing (Scotland) Act 2001 [21 23] and whilst that Act could not be an aid to the construction of the relevant provisions of the Housing Act 1985, it indicates the kind of statutory language that can be used if the policy is to override the common law right of survivorship [23]. Lord Mance would have allowed the appeal on the grounds that where the surviving joint tenant is not in occupation, the secure tenancy cannot continue in the surviving tenant who cannot be a secure tenant [47]. In this situation, nothing in the Housing Act 1985 recognises or permits any right of survivorship to oust the mandatory statutory provisions contained in section 89 [47]. The tenancy vested in the Appellant upon Mrs Hickins death [47]. Lord Clarke would also have allowed the appeal on the ground that transmission under the Housing Act 1985 to a qualified person occurs when any individual joint tenant dies, and in this case the person qualified to succeed Mrs Hickin was the Appellant [60].
The appellant, Michael Mark Junior Darnley, was struck on the head on 17 May 2010. A friend, Robert Tubman, drove the appellant to the Accident and Emergency (A&E) Department at Mayday Hospital, Croydon which was managed by the respondent, NHS Trust. He attended at 20:26. The trial judge found that at the A&E reception, the appellant informed the receptionist that he thought he had a head injury and that he was feeling very unwell. The appellant and Mr Tubman both told the receptionist that the appellant was really unwell and needed urgent attention. The receptionist told the appellant that he would have to wait up to four to five hours before he could be seen by a clinician. The appellant told the receptionist he could not wait that long as he felt he was about to collapse. The receptionist replied that if he did collapse then he would be treated as an emergency. The identity of the A&E receptionist is unknown, save that it must have been one of the two receptionists on duty, neither of which had any recollection of the conversation. However, each described her usual practice when a person with a head injury asked about waiting times. One would say that they could expect to be seen by a triage nurse within 30 minutes of arrival. The other would say that the triage nurse would be informed and that they would be seen as soon as possible. The appellant left after 19 minutes because he felt too unwell to remain and went to his mothers home. The appellant became distressed at 21:30 and an ambulance was called. He was taken back to Mayday Hospital and a CT scan identified a large extradural haematoma with a marked midline shift. He was transferred to St Georges Hospital and underwent an operation at 01:00. Unfortunately, the appellant suffered permanent brain damage in the form of a severe and very disabling left hemiplegia. The appellant brought proceedings against the respondent alleging a breach of duty by the reception staff concerning the information he was given about the time he would have to wait and the failure to assess the appellant for priority triage. The High Court dismissed the claim. The appellant appealed to the Court of Appeal. The appeal was dismissed by a majority on the grounds that neither the receptionist nor the health trust acting by the receptionist owed any duty to advise about waiting times, the damage was outside the scope of any duty owed, and there was no causal link between any breach of duty and the injury. The appellant appealed to the Supreme Court. The Supreme Court unanimously allows the appeal and remits the case to the Queens Bench Division for assessment of damages. Lord Lloyd Jones gives the sole judgment with which the other Justices agree. Duty of care First, the present case falls squarely within an established category of duty of care: it has long been established that such a duty is owed by those who provide and run a casualty department to persons presenting themselves complaining of illness or injury and before they are treated or received into care in the hospitals wards. The duty is to take reasonable care not to cause physical injury to the patient. In the present case, as soon as the appellant was booked in at reception he entered into a relationship with the respondent of patient and health care provider. The scope of this duty of care extends to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury [16]. Secondly, the duty of care is owed by the respondent and it is not appropriate to distinguish, in this regard, between medical and non medical staff. The respondent had charged its non medically qualified staff with the role of being the first point of contact for persons seeking medical assistance and, as a result, with the responsibility for providing accurate information as to its availability [17]. Thirdly, the judgments of the majority in the Court of Appeal elide issues of the existence of a duty of care and negligent breach of duty. [21] Fourthly, observations on the social cost of imposing such a duty of care are misplaced as this is not a new head of liability for NHS health trusts and, in any event, the undesirable consequences of imposing the duty in question were considerably overstated. The Court did, however, acknowledge that the very difficult circumstances under which A&E departments operate may well prove highly influential in many cases when assessing whether there has been a negligent breach of duty [22]. Negligent breach of duty A receptionist in an A&E department is expected to take reasonable care not to provide misleading advice as to the availability of medical assistance. The standard required is that of an averagely competent and well informed person performing the function of a receptionist at a department providing emergency medical care [25]. Moreover, responding to requests for information as to the usual system of operation of the A&E department is well within the area of responsibility of receptionists [26]. The two receptionists on duty were aware of the standard procedure, but the appellant was told to sit down to wait for up to four to five hours. That information was incomplete and misleading. The trial judge made the finding that it was reasonably foreseeable that a person who believes it may be four to five hours before he will be seen may decide to leave. In light of that finding, the provision of such misleading information by a receptionist as to the time within which medical assistance might be available was negligent [27]. Causation The appellants decision to leave was reasonably foreseeable and was made, at least in part, on the basis of the misleading information [29]. The trial judge made further findings of fact that, (1) had the appellant been told he would be seen within 30 minutes he would have waited, been seen by a doctor and admitted, and (2) had the appellant suffered the collapse at 21:30 whilst at the Mayday Hospital, he would have undergone surgery earlier and he would have made a nearly full recovery [30]. Thus, the appellants departure did not break the chain of causation.
During her marriage, Mrs Staveley and her husband set up a company. She had a pension fund with the companys occupational scheme, and this fund was transferred to another pension scheme (the pension scheme) for her when she and her husband divorced. In December 2006, Mrs Staveley died. Shortly before her death, she transferred funds from the pension scheme into a personal pension plan (PPP). The transfer was motivated by Mrs Staveleys desire to ensure that her ex husband did not benefit from the return to the company of any surplus in the fund. She did not take any pension benefits during her life and, in those circumstances, death benefit was payable under the PPP. Mrs Staveley nominated her two sons as beneficiaries of the death benefit, subject to the discretion of the pension scheme administrator. After her death, the death benefit was paid to them. Her Majestys Revenue and Customs (HMRC) determined that inheritance tax was due on the death benefit, on the basis that both the transfer of funds from the pension scheme into the PPP, and Mrs Staveleys omission to draw any benefits from the plan before her death, were lifetime transfers of value within section 3 of the Inheritance Tax Act 1984 (IHTA). The issue in this appeal is whether HMRC were right to take that view. The appellants are the three executors of Mrs Staveleys estate (her two sons and a solicitor, Mr Parry). They argue that inheritance tax is not payable, either on the transfer of funds into the PPP (the transfer) or on Mrs Staveleys omission to draw pension benefits from the PPP (the omission). The issue has divided the courts below. The First tier Tribunal (Tax Chamber) held that inheritance tax was due on the omission but not the transfer. The Upper Tribunal (Tax and Chancery Chamber) disagreed, finding that no inheritance tax was payable on either transaction. The Court of Appeal held that both the transfer and the omission gave rise to a charge to inheritance tax. By a majority, the Supreme Court partially allows the appeal, holding that the omission gave rise to a charge to inheritance tax, but the transfer did not. Lady Black gives the lead judgment, with which Lord Reed and Lord Kitchin agree. Lord Hodge gives a separate judgment, dissenting in part, with which Lord Sales agrees. Inheritance tax is chargeable on the value transferred by a disposition which is a transfer of value under the IHTA. Section 3(3) IHTA extends the meaning of disposition to include deliberate omissions by which the disponors estate is diminished and the value of another persons estate is increased. Section 10(1) IHTA provides that a disposition that was not intended, and was not made in a transaction intended, to confer any gratuitous benefit on any person is not a transfer of value and so does not give rise to a charge to inheritance tax. Section 10(3) IHTA provides that a transaction for section 10(1) purposes includes a series of transactions and any associated operations [6 13]. In the lead judgment, Lady Black sets out the three issues that arise on the appeal: (1) whether section 10 IHTA applies to the transfer as a disposition viewed on its own, i.e. whether the transfer was not intended to confer any gratuitous benefit on any person (Transfer Issue 1); (2) whether section 10 IHTA applies to the transfer looked at in its wider context, i.e. whether the transfer was not made in a transaction intended to confer any gratuitous benefit on any person (Transfer Issue 2); and (3) whether the terms of section 3(3) are satisfied in respect of the omission, i.e. whether, by her omission to draw pension benefits from the PPP, the value of Mrs Staveleys estate was diminished and the values of her sons estates were increased (Omission Issue) [17 20]. Transfer Issue 1 (transfer on its own) Section 10 IHTA applies where the overall effect of the disposition is not intended by the disponor to confer a gratuitous benefit. In the present case, the transfer had not been motivated by any intention to improve the sons position. Mrs Staveleys sole intention in transferring the funds was to eliminate any risk that any part of the funds might be returned to her ex husband. The mere fact that the sons inheritance was intended to be enjoyed in a different legal form after the transfer did not mean that Mrs Staveley intended to confer a gratuitous benefit her sons. When viewed on its own, section 10 IHTA applied to the transfer [65, 66]. Transfer Issue 2 (transfer and omission as associated operations) The parties accepted that, in omitting to draw lifetime benefits under the PPP, part of Mrs Staveleys intention was to benefit her sons. The question for the Supreme Court was whether this intention coloured the transfer with an intention to confer gratuitous benefit which the transfer would not have on its own. The majority of the Supreme Court did not accept, as the Court of Appeal had found, that the omission and the transfer together formed part of a scheme (a series of transactions and any associated operations) intended to confer a gratuitous benefit. The present case could be distinguished from Inland Revenue Comrs v Macpherson [1989] AC 159, where the House of Lords had found that a series of operations formed part of a such a scheme and so gave rise to tax. In Macpherson, the operations under consideration had been clearly linked by a common intention. In contrast, in the present case, Mrs Staveleys essential scheme had been her omission to draw a lifetime pension in order to benefit her sons by leaving them her death benefits. That could have been achieved without the transfer. Accordingly, the transfer and the omission were not linked by a common intention and did not form part of a single scheme intended confer a gratuitous benefit on any person. Section 10 IHTA therefore applied to the transfer, even when viewed in its wider context. It followed that the transfer did not give rise to a charge to inheritance tax [67, 88]. The Omission Issue The limited discretion of the pension scheme administrator did not break the chain connecting the omission and the payment of the death benefit. The omission was the operative cause of the increase in the sons estates and therefore gave rise to a charge to inheritance tax under section 3(3) IHTA [94]. Lord Hodge would have dismissed the appeal in relation to the transfer and the omission. He agrees with Lady Black on Transfer Issue 1 and the Omission Issue but reaches a different conclusion on Transfer Issue 2. The transfer, when taken with the omission and the nomination of the sons as beneficiaries of the death benefit, formed a contributory part of a scheme to confer a gratuitous benefit. Mrs Staveleys intention to benefit her sons pre dated the transfer and was reflected in her nomination in the PPP. Therefore, he concludes, section 10 does not apply and tax ought to be payable [104, 109].
These appeals concern the legality of the Secretary of States Employment, Skills and Enterprise Scheme (ESES), which was designed to assist claimants of job seekers allowance (JSA) to obtain employment or self employment. The Jobseekers Act 1995 (the 1995 Act) provides for JSA to be paid to certain categories of unemployed persons. Section 17A of the 1995 Act provided that the Secretary of State could make regulations requiring JSA claimants in prescribed circumstances to participate in work or work related schemes of a prescribed description for a prescribed period. By section 35, prescribed means specified in or determined in accordance with regulations. Purportedly acting under section 17A of the 1995 Act, the Secretary of State made the Jobseekers Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011 (the 2011 Regulations:). These set up the ESES, defined by Regulation 2 as a scheme under section 17A to assist JSA claimants to obtain employment, which could include work related activity. By Regulation 3, the Secretary of State could select a JSA claimant for participation in the Scheme. Regulations 4 provided that such a claimant was required to participate once the Secretary of State had provided a notice in writing specifying (among other things) details of what participation involved, and Regulations 4 8 provided that failing to participate without good cause would lead to benefits sanctions. A number of work for your benefit programmes were created under ESES including the sector based work academy scheme (SBWA scheme), a short term scheme aimed at clearly employable individuals, and the Community Action Programme (CAP) aimed at the very long term unemployed. The first Respondent unwillingly participated for four weeks in the SBWA scheme having been informed, wrongly, that her participation was mandatory. She received no written notice. The second Respondent was selected to participate in the CAP. He was informed orally that he would be required to work for 30 hours/week for 26 weeks or until he found employment. He repeatedly refused to participate, and was subject to benefits sanctions with the effect that he received no JSA for 6 months. The Respondents brought judicial review claims. They argued that (i) the 2011 Regulations are unlawful, since they did not fulfil the requirements of section 17A of the 1995 Act in prescribing the programmes, the circumstances by which individuals are selected, or the period of participation (lawfulness), (ii) the Respondents did not receive the information required by Regulation 4 of the 2011 Regulations (notification), (iii) the Government was required to have a published policy setting out the details of the relevant schemes (publication), and (iv) that the first Respondent had been subject to forced or compulsory labour contrary to Article 4 ECHR (forced labour). The High Court found for the Respondents on ground (ii) only: the Secretary of State had accepted that the first Respondents notice did not satisfy Regulation 4, and the Court held that the second Respondents notice also failed to comply. The Court of Appeal upheld the High Courts decision on ground (ii), but also allowed the appeal on ground (i), and thereby quashed the 2011 Regulations. The Secretary of State appeals to the Supreme Court against the Court of Appeals decision on grounds (i) and (ii). The Respondents cross appeal against the Court of Appeals decision on grounds (iii) and (iv). Following the Court of Appeals decision, the Government passed the Jobseekers Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013 (the 2013 Regulations) and the Jobseekers (Back to Work Schemes) Act 2013 (the 2013 Act). The effect of these was retrospectively to validate the 2011 Regulations and to set out fuller details of seven schemes, including the SBWA scheme and the successors of the CAP, pursuant to section 17A of the 1995 Act. Lord Neuberger and Lord Toulson give the unanimous judgment of the Court. On ground (i) lawfulness, the Supreme Court dismisses the Secretary of States appeal, holding that the 2011 Regulations are invalid, since they did not contain a sufficiently detailed prescribed description of the SBWA or CAP schemes. On ground (ii) notification, the Court dismisses the Secretary of States appeal, holding that the notice given to the second Respondent was insufficiently detailed. On ground (iii) publication, the Supreme Court holds that the Secretary of State had failed to provide sufficient information about the schemes to the Respondents. On ground, (iv) forced labour, the Court dismisses the Respondents cross appeal: the Regulations do not constitute forced or compulsory labour. Given the existence of the 2013 Act and 2013 Regulations, however, the appropriate form of the order would require submissions from counsel. (i) Lawfulness: The SBWA and CAP are schemes falling within the 2011 Regulations. However, Regulation 2 contains no prescribed description of the ESES, SBWA scheme or CAP [45]. Even taking into account the need for flexibility in the detail of schemes, where a statute allows the making of regulations with a significant impact on peoples lives, the need for legal certainty is of crucial importance [46 47]. To be meaningful, the prescribed description must add something to what is said in the 1995 Act, and the description of ESES in the 2011 Regulations added nothing to the words of section 17A [48 50]. Therefore the 2011 Regulations were unlawful. However, the prescribed circumstances were sufficiently set out in Regulations 3 and 4 together, given the obvious need for flexibility [51]. Likewise, it was legitimate for the prescribed period to be an open ended one [52]. (ii) Notification: The notice served on the second Respondent simply informed him that he had to perform any activities requested by the private company operating the CAP, without any indication of the nature of the likely tasks, hours or places of work. This was insufficient to satisfy Regulation 4(2)(c), which required that the notice give the second Respondent details of what [the second Respondent] is required to do by way of participation in the Scheme [54 55]. However, the letter was sufficiently detailed with regard to the consequences of failure to participate: while there might have been imperfections, the second Respondent was not significantly prejudiced or misled [56 57]. (iii) Publication: The Regulations invoked a statutory power which involved a requirement to work on pain of loss of benefits. Therefore fairness required that the claimants should have sufficient information about the scheme to be able to make freely informed representations before a decision was made [64 66], which the Secretary of State failed to do [67 73, 76]. (iv) Forced labour: Article 4 ECHR requires that no one shall be required to perform forced or compulsory labour. However, this does not include work forming part of normal civic obligations. The latter provision delimits the ambit of the former [78, 81 82]. Therefore it was wrong to say that any work done under threat of penalty constituted forced labour unless it was required by lawfully imposed civic obligations [79 80]. JSA is a benefit for work seekers, and the 2011 Regulations impose a condition on that benefit directly linked to its purpose. This comes nowhere close to the type of exploitative conduct at which article 4 is aimed [83, 90]. The fact that, as a matter of domestic law, the first Respondents notice was unlawful made no difference [91].
The Information Commissioner ordered the disclosure of information held by Ofcom concerning the precise location of mobile phone masts. On appeal, the Information Tribunal found that the public interest in public security, and in the protection of intellectual property rights, were both engaged but that under each separate exception the public interest in disclosure outweighed the interest alleged by Ofcom. It dismissed the argument of Ofcom that under the Environmental Information Regulations 2004 the Tribunal should conduct a third balancing test weighing all the interests in favour of disclosure against all the public interests in refusing disclosure. The High Court upheld the Information Tribunal. On appeal, the Court of Appeal overturned the Tribunal. It held that the Regulations must be construed in the light of European Directive 2003/4/EC, which they implement. The language of both documents supported an aggregate weighing exercise to assess the overall public interest. The Supreme Court unanimously holds that the appeal raises an issue of general principle and that the answer is not obvious. Different members of the Court hold different views on the correct construction of Environmental Information Regulations 2004, and Directive 2003/4/EC which they implement. Consequently, the Supreme Court is under a duty to refer the question in the appeal to the European Court of Justice (paras [3], [10], [14]). The question referred to the European Court under Article 267 of the Treaty on the Functioning of the European Union is: Under Council Directive 2003/4/EC, where a public authority holds environmental information, disclosure of which would have some adverse effects on the separate interests served by more than one exception (in casu, the interests of public security served by article 4(2(b) and those of intellectual property rights served by article 4(2)(e)), but it would not do so, in the case of either exception viewed separately, to any extent sufficient to outweigh the public interest in disclosure, does the Directive require a further exercise involving the cumulation of the separate interests served by the two exceptions and their weighing together against the public interest in disclosure? (para [15]) A majority of the Court would have upheld the judgment of the Court of Appeal. The majority consider that there are certain linguistic clues in the Directive which favour an aggregate weighing exercise which considers the overall public interest. The diversity of reasons is a positive reason to accumulate them, and certain heads already involve more than one public interest (paras [10], [12]). The minority of the Court also finds linguistic clues in the Directive to suggest that no cumulation of factors is possible given the disparate public interests involved which considered together would produce incongruities and be impractical (para [13]).
The respondent, Mr Perry, is a retired miner. By the time he stopped working, he was suffering from a condition known as Vibration White Finger (VWF). Common symptoms include a reduction in grip strength and manual dexterity, often leading to an inability to carry out routine domestic tasks unaided. In the late 1990s, a group of test cases established that the National Coal Board (later British Coal) had been negligent in failing to take reasonable steps to limit the exposure of its miners to VWF from the excessive use of vibratory tools. In 1999, the Department for Trade and Industry (DTI) set up a scheme (the Scheme) to provide tariff based compensation (i.e. based on the severity of the injury) to miners suffering from VWF following exposure to excessive vibration. The Scheme was administered under a Claims Handling Arrangement dated 22 January 1999 made between the DTI and solicitors firms representing miners. The Scheme contemplated the making of two main types of compensatory award to such miners, which broadly reflected general and special damages for personal injuries. Pursuant to a Services Agreement dated 9 May 2000, special damages could include a Services Award to qualifying miners. This depended on establishing what became known as the factual matrix. In summary: (1) prior ability to undertake one or more of six defined routine domestic tasks (the six tasks) without assistance; (2) current inability to undertake those tasks without assistance because of VWF; and (3) current receipt of the necessary assistance with those tasks from others. The six tasks were gardening, window cleaning, DIY, decorating, car washing, and car maintenance. Qualification for a general damages award required affected miners to undertake a medical interview and examination designed to assess the severity of their VWF. Sufferers at certain high levels of severity also became entitled to a rebuttable presumption that they qualified for a Services Award. The Scheme provided for relatively light touch checks of Services Award claims. Compensation was payable to qualifying claimants according to an index linked tariff. Proportionate deductions could be made if a further medical examination showed that there were other contributing medical conditions. Mr Perry engaged the appellant law firm, Raleys, to pursue a VWF claim in October 1996. His claim ultimately fell within the Scheme. In October 1997, he was given medical ratings (stagings) sufficient both for him to obtain general damages and for a Services Award to be presumed. However, Mr Perry settled his claim in November 1999 for the payment of general damages only (11,600) and made no claim for a Services Award within the specified time. He made a professional negligence claim against Raleys in February 2009, claiming that the firms negligent failure to give him competent legal advice deprived him of the chance to claim a Services Award. His estimated loss was 17,300.17 plus interest. At trial in the County Court, Raleys ultimately admitted breach of duty, but denied causation of loss. It also alleged that his claim was time barred. The trial judge, Judge Saffman, rejected the limitation defence, but held that Mr Perry had not proved that Raleys breach of duty had caused him any loss. This conclusion was based on the finding that Mr Perrys VWF had not caused him any significant disability in performing any of the six tasks without assistance, such that he could not have been able to make an honest claim for a Services Award. The judge dismissed the claim, but nonetheless proceeded to make findings on the assessment of damages. The Court of Appeal reversed the finding on causation and concluded that the alternative findings on quantum meant a re trial was unnecessary. It granted Mr Perry loss of chance damages of 14,556.15 plus interest. Raleys appealed to the Supreme Court, seeking restoration of Judge Saffmans order. The Supreme Court allows the appeal and restores the order of the County Court judge. Lord Briggs gives the sole judgment, with which all members of the Court agree. Loss of chance damages have been developed by the courts to deal with the difficulties arising from the assessment of counter factual and future events [16]. In both types of situation, the courts at times depart from the ordinary burden on a claimant to prove the facts required for a successful claim on the balance of probabilities (i.e. more likely than not) standard [17 18]. However, this does not mean that the basic requirement that a negligence claim requires proof that loss has been caused by the breach of duty is abandoned [19]. The correct approach, following Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 (CA), is to require a claimant to prove what he or she would have done on the balance of probabilities, while what others would have done (if relevant) depends on a loss of chance evaluation [20 21]. These principles apply equally to negligence claims based on loss of the opportunity to achieve a better outcome in a negotiated transaction and ones, as in this case, based on loss of the chance to bring a legal claim [22]. It is not unfair to subject medical and oral evidence as to facts within the claimants own knowledge to forensic analysis on the balance of probabilities standard [30]. The case law only establishes that, where the question for the court is one which turns on the assessment of a lost chance, it is generally inappropriate to conduct a trial within a trial [31]. It does not establish a principle that it is always wrong to try an issue relevant to causation in a professional negligence case, merely because that issue would have fallen for determination in the underlying claim (lost due to alleged negligence) [35 37]. Whether an issue should be tried to the usual standard depends on whether it concerns the claimants conduct (where it should be) or third party conduct (only requiring a real and substantial chance) [37]. Applying this approach, Mr Perry needed to prove that, properly advised by Raleys, he would have made a claim to a Services Award under the Scheme within time [25]. Further, the judge was correct to impose the additional requirement of the claim having to be an honest claim [25]. A concession in the courts below had been rightly made as to the honest claim requirement, because: (1) a claimant giving an honest description of his or her condition to a solicitor would not be advised to bring a claim if the facts were insufficient; (2) a court may fairly presume that the client would only make honest claims; and (3) it is not the proper role of the courts to reward dishonest claimants [25 27]. On the facts, Mr Perry had to believe the following to bring an honest claim: (1) before developing VWF, he had carried out all or some of the six tasks without assistance; (2) after developing VWF, he needed assistance in carrying out all or some of those tasks; and (3) the need for assistance was due to complications from VWF [28]. Question (3) might require expert medical opinion, but all the other necessary elements fell within his own knowledge [29]. Such facts do not raise issues of counter factuality or futurity which engage loss of chance principles [30]. Accordingly, Judge Saffman had made no legal error in conducting a trial of the issue whether Mr Perry would (or could) have brought an honest claim for a Services Award [41]. Further, the judge did not (wrongly) apply a second causation hurdle requiring Mr Perry to prove that his claim would have been successful (not merely honest) [42 48]. In addition, the Court of Appeal wrongly interfered with the judges factual determination the very stringent test for appellate court interference was not met in this case [49 66].
The Respondent (B) has been in the UK since 1993. He was originally detained under section 21 of the Anti Terrorism, Crime and Security Act 2001 and was subsequently subject to a control order under the Prevention of Terrorism Act 2005. On 11 August 2005, he was notified of the Secretary of States intention to make a deportation order against him on national security grounds. He was detained under Schedule 3 of the Immigration Act 1971 (the 1971 Act) pending deportation. He appealed, using a false identity, to the Special Immigration Appeals Commission (SIAC) against his deportation. The UK Government sought assurances from the Algerian authorities that, if returned to Algeria, B would not be subject to treatment incompatible with Article 3 of the European Convention on Human Rights (ECHR). On 10 July 2006, the Algerian authorities confirmed that the details of his identity given by B were those of an individual present in Algeria. On 19 July 2007, SIAC ordered B to provide details of his true identity. On 30 July 2008, SIAC held that the Secretary of States case against B on the risk to national security had been made out. On 26 November 2010, SIAC held that B had disobeyed its earlier order of 19 July 2007 and imposed a prison sentence on B of four months. Following his eventual release from prison, bail conditions were imposed on B. On 13 February 2014, SIAC held that there was no reasonable prospect of removing B to Algeria and the ordinary legal basis for justified detention under the Immigration Acts therefore fell away. Thereafter, the Secretary of State did not authorise Bs further detention and his bail conditions were relaxed. Bs appeal against the notice of decision to deport him was struck out by SIAC in light of his continuing contempt of court. SIAC also rejected Bs submission that, following SIACs findings of 13 February 2014, it no longer had jurisdiction to grant bail to B or to impose bail conditions. This decision was upheld by the High Court. B appealed to the Court of Appeal, which allowed his appeal on the ground that SIAC had no jurisdiction to impose bail conditions on B if his detention would be unlawful. On 12 December 2016, SIAC allowed Bs substantive deportation appeal. As a result, Bs bail fell away and it is common ground that the immigration power is now unavailable. The Supreme Court granted the Secretary of State permission to appeal against the decision of the Court of Appeal on the issue of SIACs bail jurisdiction. The Supreme Court unanimously dismisses the appeal. Lord Lloyd Jones gives the lead judgment with which the other Justices agree. The so called Hardial Singh principles concerning the operation of the detention power contained in paragraph 2 of Schedule 3 to the 1971 Act form an important part of the background to this appeal. These principles are that (i) the Secretary of State must intend to deport the person and can only use the detention power for that purpose; (ii) the deportee may only be detained for a reasonable period; (iii) if it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period then he should not seek to exercise the power of detention; and (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal [24 25]. At the heart of the case is a dispute about what the correct approach to the availability of immigration bail is when the Hardial Singh limit on actual detention is reached. The Secretary of State suggested that a purposive interpretation of the legislation should apply so that bail is available regardless of whether the individual is lawfully detained or would hypothetically be lawfully detained [28]. The Court saw no basis for such an approach. It is a fundamental principle of the common law that Parliament is presumed not to intend to interfere with the liberty of the subject without making such an intention clear. This was a situation where the principle of legality was in play. Accordingly, the Court was required to interpret the statutory provisions strictly and restrictively [29]. It was common ground that being detained was a condition precedent to the exercise of the power to grant bail conferred by paragraphs 22 and 29 of Schedule 2 to the 1971 Act. Applying the strict approach to interpretation, the Court found that the reference to detained means lawful detention [30 31]. Furthermore, detained does not only refer to the state of affairs which must exist at the time when the power is first exercised. Unless there is a continuing power to detain, the system of bail would encounter substantial difficulties in operation [32]. Where it ceases to be lawful to detain a person pending deportation there is no longer a power of detention under paragraph 16 of Schedule 2, and there is therefore no longer a power to grant bail under paragraphs 22 or 29 [33]. The Secretary of State submitted that as both bail and temporary admission or temporary release are ameliorating possibilities of alternatives to detention, it is sensible for both powers to persist for some duration beyond the point at which actual detention can no longer continue. Temporary admission or release is covered by paragraph 21 of Schedule 2. However, unlike paragraphs 22 and 29, it refers to a person liable to be detained and not detention which is a material difference. Accordingly, the comparison does not assist the Secretary of State [34 39]. The Court did not agree with the Secretary of States submission that the interpretation of paragraphs 22 and 29 favoured by the Court of Appeal would lead to impracticability in their application. In any event, if administrative inconvenience is a consequence the remedy lies with Parliament [40 45]. The Court found considerable modern authority which supported the Court of Appeals statement of principle that the power to grant bail presupposes the existence of and the ability to exercise the power to detain lawfully. [47 51]. However, this is not necessarily a principle of universal application. While the clearest possible words would be required to achieve a contrary result, Parliament could do so [53]. In the circumstances it was not necessary to address the arguments under Article 5 ECHR which added nothing to the resolution of the issues on appeal [56].
This appeal concerns the defence of illegality. The Supreme Court is asked to decide whether a firm of solicitors, Stoffel & Co, can escape liability to Ms Grondona for their negligent failure to register documents effecting a transfer of property because the transfer formed part of an illegal mortgage fraud. Ms Grondona had a business relationship with Mr Mitchell. In or about July 2002, Mr Mitchell purchased a 125 year lease of the rear ground floor flat at 73b Beulah Rd, Thornton Heath (the property). Shortly afterwards, he borrowed 45,000 from BM Samuels Finance Group Plc. The loan was secured by a legal charge over the property (the BM Samuels charge). In October 2002, Ms Grondona bought the property from Mr Mitchell, with the assistance of a mortgage advance of 76,475 from Birmingham Midshires. The plan was that the mortgage advance would be secured by a charge over the property, which Ms Grondona entered into on 31 October 2002 (the Birmingham Midshires charge). Ms Grondona procured the mortgage advance by fraud. According to the trial judge, the purpose of the fraud was to raise capital for Mr Mitchell from a high street lender, which he would not otherwise have been able to obtain. Ms Grondona and Mr Mitchell had previously entered into an agreement which confirmed that Mr Mitchell would be responsible for the mortgage payments. Stoffel & Co solicitors acted for Ms Grondona, Mr Mitchell and Birmingham Midshires in connection with the transaction. Stoffel & Co negligently failed to register at the Land Registry the form TR1 transferring the property from Mr Mitchell to Ms Grondona, the form DS1 releasing the BM Samuels charge, and the Birmingham Midshires charge. This meant that Mr Mitchell remained the registered owner of the property, which continued to be subject to the BM Samuels charge. Mr Mitchell subsequently received further advances from BM Samuels on the basis of that charge. In 2006, Ms Grondona defaulted on payments under the Birmingham Midshires charge. Birmingham Midshires brought proceedings against her. Ms Grondona, in turn, sought damages from Stoffel & Co. Stoffel & Co admitted that their failure to register the forms with the Land Registry constituted negligence or a breach of retainer. However, they argued that they were entitled to rely on the illegality defence, because Ms Grondona had only instructed them to further the illegal mortgage fraud. The trial judge held that Ms Grondonas claim was not barred by the illegality defence. The Court of Appeal dismissed Stoffel & Cos appeal. Stoffel & Co appealed to the Supreme Court. The Supreme Court unanimously dismisses Stoffel & Cos appeal, and holds that Ms Grondonas claim is not barred by the illegality defence. Lord Lloyd Jones gives the judgment, with which all members of the Court agree. The Supreme Court decision in Patel v Mirza [2016] UKSC 42 set out a new policy based approach to the illegality defence at common law. In that case, the majority held that, when a claim is tainted by illegality, the court should ask itself whether enforcing the claim would lead to inconsistency that is damaging to the integrity of the legal system. In making this assessment, the court should consider: (a) the underlying purpose of the illegality in question, and whether that purpose would be enhanced by denying the claim; (b) any other relevant public policy on which denying the claim may have an impact; and (c) whether denying the claim would be a proportionate response to the illegality [22 23]. The application of this trio of considerations should not be a mechanistic process. Accordingly, the court will identify the policy considerations at stages (a) and (b) of the trio at a relatively general level. The courts task is to establish whether enforcing a claim that is tainted with illegality would be inconsistent with the policies to which the law gives effect or, where the policies compete, to decide where the balance lies. The court is not required to evaluate the underlying policies themselves. In contrast, when considering proportionality at stage (c), it is likely that the court will need to look closely at the case before it. However, it is not necessary for the court to consider proportionality in every case. If, after it has examined the policy considerations at stages (a) and (b), the court determines that the claim should not be barred by the illegality defence, there will be no need for it to go on to consider proportionality. This is because the claim will be allowed, so there is no risk of disproportionate harm to the claimant by refusing relief to which he or she would otherwise be entitled [26]. In considering stage (a), Lord Lloyd Jones observes that Ms Grondona was engaged in mortgage fraud, which is a serious criminal offence. However, denying her claim would not enhance the underlying purpose of the prohibition on mortgage fraud. Fraudsters are unlikely to be deterred by the risk that they will be left without a civil remedy if their solicitors prove to be negligent [29]. On the other hand, allowing Ms Grondonas claim would enhance the protection that the law provides to mortgagees and other members of the public, which is a further underlying purpose of the prohibition on mortgage fraud. By the time of Stoffel & Cos negligence, it was in the interests of both Ms Grondona and Birmingham Midshires that the transfer should be registered [30 31]. Turning to stage (b), denying Ms Grondonas claim would run counter to a number of important public policies. In particular, it would be inconsistent with the policy that solicitors should perform their duties to their clients diligently and without negligence, as well as with the policy that the victims of solicitors negligence should be compensated for the loss they have suffered [32]. Denying the claim would also result in an incoherent contradiction in the law, because the law accepts that an equitable interest in the property passed to Ms Grondona, even though she was engaged in mortgage fraud [33 34]. The balancing of the policy considerations at stages (a) and (b) indicate that Ms Grondonas claim should not be barred by the illegality defence. There is, consequently, no need to consider proportionality, but Lord Lloyd Jones does so nevertheless [35]. He concludes that it would not be proportionate to deny Ms Grondonas claim because it is conceptually entirely separate from the mortgage fraud [43]. Enforcing the claim would not allow Ms Grondona to profit from her wrongdoing [44 45]. In any case, following Patel v Mirza, the courts focus should be on the need to avoid inconsistency that is damaging to the integrity of the legal system. The question of whether the claimant will profit from the illegality remains a relevant consideration, but it is no longer the true focus of the courts inquiry [46].
In Cadder v HM Advocate [2010] UKSC 43, the Supreme Court held, having regard to the decision of the European Court of Human Rights in Salduz v Turkey (2008) 49 EHRR 421, that the Crowns reliance on admissions made by an accused who had no access to a lawyer while he was being questioned as a detainee at a police station was a violation of his rights under Article 6(3)(c), read with Article 6(1) of the European Convention on Human Rights. The issues in these cases are whether the right of access to a lawyer prior to police questioning, which was established by Salduz, applies only to questioning which takes place when the person has been taken into police custody; and, if the rule applies at some earlier stage, from what moment does it apply. The accused in the first case, John Paul Ambrose, was prosecuted on a charge of contravening section 5(1)(b) of the Road Traffic Act 1988 as being in charge of a motor vehicle while over the alcohol limit. He was questioned by two police officers by the roadside, who cautioned him but did not give him any specification about the offence he was suspected of having committed. In response to their questions, he confirmed that he was in possession of the car keys, and that he might be intending to drive the car. Breath tests indicated that he was substantially over the prescribed limit. In his trial the Crown led evidence of the questions and answers at the roadside. In M, the accused was charged with assault to severe injury, permanent disfigurement and permanent impairment. A few days after the incident, the police visited him at his home, cautioned him, and asked him a number of questions, in response to which he confirmed his attendance at the locus on the night in question and his involvement in the fight. He was detained the following day, and questioned further while he was in custody. At trial, he objected to the Crowns reliance upon the admissions he had made in his home, on the basis that he had not had access to legal advice prior to interview. In G, the accused was indicted with offences including the possession of controlled drugs under the Misuse of Drugs Act 1971 and possession of prohibited firearms and ammunition under the Firearms Act 1968. The police had obtained a warrant to search the accuseds flat. They forced entry and found him there. He struggled, and was handcuffed and cautioned. He admitted to having drugs in his pocket, and responded to a number of questions about items found in the flat. He was subsequently arrested and taken to a police station where he answered further questions. He objected to the Crowns reliance at trial on the statements he made during the course of the search of the flat. In each of the three cases, the Appeal Court of the High Court of Justiciary referred to this Court the question whether the act of the Lord Advocate in leading and relying on the evidence in question would be incompatible with the appellants rights under Article 6(1) and (3)(c) of the European Convention on Human Rights. The Supreme Court, by a majority of 4 to 1, finds that, in the cases of Ambrose and M, the act of the Lord Advocate in leading and relying at the trial on the evidence that was obtained from them in response to police questioning without having had access to legal advice was not incompatible with the Article 6(1) and (3)(c) right; and in the case of G that it was incompatible. In Ambrose and M, the question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for decision by the Appeal Court and Sheriff Court respectively. Lord Hope gives the leading judgment. Lord Kerr gives a separate dissenting judgment finding in all three cases that the evidence would be inadmissible. In each of these three cases, the circumstances differ from those before the Supreme Court in Cadder and before the Grand Chamber in Salduz, in that the evidence in question was obtained through police questioning before the individuals were detained at a police station. The Supreme Court notes, firstly, that the jurisdiction of this court is limited to a consideration of the devolution issue which is raised by each of these references, and does not extend to ruling on how the circumstances referred to in each case would fall to be dealt with under domestic law. Secondly, it notes that a decision by this court that there is a rule that a person who is suspected of an offence but is not yet in custody has a right of access to a lawyer before being questioned by the police would have far reaching consequences for the investigation of crime by the authorities. Therefore, if Strasbourg has not yet spoken clearly on this issue, the court would be wise to wait until it has done so [14 15]. The duty of the domestic court in interpreting the Convention is to keep pace with the Strasbourg case law as it evolves over time. There is no obligation upon domestic courts to do more than that (R (Ullah) v Special Adjudicator [2004] UKHL 26, para 20 per Lord Bingham of Cornhill) [17]. The courts task in this case is to identify where the Strasbourg court stands on this issue. It is not for this court to expand the scope of the Convention right further than the jurisprudence of the Strasbourg court justifies [20]. In domestic law, where an individual has not yet been detained under section 14 of the Criminal Procedure (Scotland) Act 1995, the test for the admissibility of answers given to questions put by police is whether or not there was unfairness on the part of the police. The fact that the person did not have access to legal advice when being questioned is a circumstance to which the court may have regard in applying the test of fairness, but it carries no more weight than that. There is no rule in domestic law that provides that police questioning of a person without access to legal advice who is suspected of an offence but is not in police custody must always be regarded as unfair. The question is whether a rule to that effect is to be clearly found in the jurisprudence of the Strasbourg court [25]. The Grand Chamber in Salduz had in mind the need to protect an accused against abusive coercion while in custody. The judgment appears to have been concerned only with establishing a rule that there was a right of access to a lawyer where the person being interrogated was in police custody [33]. That assessment is supported by subsequent Strasbourg case law, in particular Zaichenko v Russia (Application no.39660/02), the only case to date in which the complaint was of lack of legal assistance during police questioning when the applicant was not in custody [46]. If the Salduz judgment were to apply to statements made by a person in response to police questioning before being taken into custody, the court would have had to have said so expressly. It did not do so [35]. The privilege against self incrimination is not an absolute right (Murray v United Kingdom (1996) 22 EHRR 29, para 47). It is primarily concerned with respecting the will of the person to remain silent (Saunders v United Kingdom (1996) 23 EHRR 313, para 68), and a person is free to confess if he is willing to do so. Police custody or its equivalent creates a need for protection of the accused against abusive coercion. The same is not the case for questioning at the locus or in a persons home [54]. In principle, the line as to when access to legal advice must be provided before the person is questioned should be drawn as from the moment that he has been taken into police custody, or his freedom of action has been significantly curtailed [55]. The correct starting point when considering whether the persons Convention rights have been breached is to identify the moment at which he is charged for the purposes of Article 6(1); that is whether his situation is substantially affected (Deweer v Belgium (1980) 2 EHRR 439, para 46; Eckle v Germany (1982) 5 EHRR 1, para 73). That will be the case as soon as the suspicion against him is being seriously investigated and the prosecution case compiled [62]. The fact that a person who has become a suspect and is not in custody is questioned without access to legal advice will be a relevant factor in the assessment whether the accused was deprived of a fair hearing, but it will be no more than that. In Ambrose and M, the question is whether the act of the Lord Advocate in leading and relying on evidence obtained in response to police questioning, conducted under common law at the roadside or at the accuseds home, without the accused having had access to legal advice, was incompatible with Article 6(1) and (3)(c). This is answered in the negative. Ambrose was charged for the purposes of Article 6 when he was cautioned. Suspicion that he was committing an offence fell on him as soon as he told the police that the keys were in his pocket [67]. M was charged when he was cautioned by the police officer at his home [69]. But it would be to go further than Strasbourg has gone to hold that the appellants are entitled to a finding that this evidence is inadmissible because, as a rule, access to a lawyer should have been provided to him when he was being subjected to questioning at the roadside [68 & 70]. The question whether, taking all the circumstances into account, it would be fair to admit this evidence, is left open for the Appeal Court and Sheriff Court respectively. In G, the question whether it is incompatible with his Convention rights for the Lord Advocate to lead evidence of his statements made during the course of the search is answered in the affirmative. He was charged for the purposes of Article 6 by the time the police began their search. The difference with this case was that there was a significant curtailment of Gs freedom of action. He was detained and had been handcuffed, and was, in effect, in police custody from that moment onwards. The circumstances were, therefore, sufficiently coercive for the incriminating answers that he gave to the questions that were put to him without access to legal advice to be inadmissible [71]. The same result need not, however, follow in every case where questions are put during a police search to a person who is to be take to have been charged for the purposes of Article 6; that, again, would be going further than Strasbourg has gone [72]. Lord Kerr would have found the evidence in question to be inadmissible in all three cases. It is not open to courts of this country to refrain from recognising a claim to a Convention right simply because Strasbourg has not spoken clearly on the matter [128]. In practice, it is inevitable that many claims to Convention rights will have to be determined by the UK courts without the benefit of unequivocal jurisprudence from Strasbourg. It is the duty of every domestic court to resolve the question of whether a claim to a Convention right is viable or not, even where the jurisprudence of the Strasbourg court does not disclose a clear current view [129]. As regards the right of access to a lawyer, the selection of the moment of being taken into custody as the first occasion on which legal representation becomes necessary is both arbitrary and illogical. The judgment in Salduz indicates that the need to have a lawyer is not to be determined on a geographical or temporal basis but according to the significance of what is taking place when the admissions in question are made [136]. The essential question is: when the questioning is taking place, is the suspect in a position where the advice of a lawyer is essential if a fair trial is to occur. If he is liable to incriminate himself at that time, a lawyers presence is required [145]. The judgment in Zaichenko is not clear, but does not indicate that formal arrest and interrogation in custody are essential prerequisites to the invocation of the right to legal assistance [158].
Mrs Hewage was born in Sri Lanka, and has been a British citizen since 1998. On 1 December 1993 she commenced employment with Grampian Health Board (the Board) at Aberdeen Royal Infirmary as a consultant orthodontist. In 1996 she became Head of Service for the Orthodontic Department. She resigned from that position on 30 November 2003. On 24 December 2004 she resigned from her employment with the Board with effect from 31 March 2005. In September 2005 she commenced proceedings against the Board in which she claimed under section 94(1) of the Employment Rights Act 1996 that she had been unfairly dismissed from that employment. She also claimed under the Sex Discrimination Act 1975 and the Race Relations Act 1976 that she had been discriminated against on the grounds of her sex and race. At a hearing before an employment tribunal, the Board conceded that Mrs Hewage had been constructively and unfairly dismissed. The tribunal held on 4 December 2007 that she had been unlawfully discriminated against on a number of grounds of both sex and race. On 15 April 2009 the Employment Appeal Tribunal (the EAT) upheld an appeal by the Board and dismissed Mrs Hewages claims of discrimination. She appealed to the Inner House of the Court of Session, and on 14 January 2011 the Second Division allowed her appeal and quashed the decision of the EAT. It remitted the case to the employment tribunal to decide whether, if it had had regard to the only issues which the court considered to be relevant to the claims of discrimination, it would have come to the same or a different conclusion. The Board appeals against that decision. The complaints have their source in allegations by Mrs Hewage that she was bullied and harassed by employees of the Board. In her position as Head of Service she attended monthly management meetings of the department. She claimed that at one of the meetings, two colleagues (Mrs Helen Strachan, the service manager for surgical specialities, and Mrs Edith Munro, the clinical nurse manager) were verbally abusive, hostile and aggressive towards her. An occupational health doctor wrote on her behalf to the Boards Chief Executive, and Mrs Hewage met with the Chief Executive to discuss the matter. But she was not satisfied by his response and resigned from her position as Head of the Department. The conduct of Mrs Strachan had previously been brought to the attention of the Boards senior management by Professor John Forrester, Head of Service for the Department of Opthalmology, who had resigned as a result of her behaviour towards him. In response to his resignation, the department was reorganised, Mrs Strachan was removed from the position of service manager, and Professor Forrester was re appointed. When Mrs Hewage resigned as Head of Service in November 2009, Mr Colin Larmour, a consultant orthodontist, took over from her, initially on a temporary basis. On his appointment to a permanent role, the Boards General Manager and Associate Medical Director assured him of their support, especially in relation to Mrs Strachan. In meetings regarding the appointment of dental nurses, Mrs Edith Munro and Sister Moira Munro willingly agreed to a proposal by Mr Larmour which they had fiercely resisted when it was proposed by Mrs Hewage. Mrs Hewage complained that the formal investigation undertaken by a panel under the Boards Dignity at Work Policy resulted in a report that was full of inaccuracies and omissions, and did not reach any conclusions or make any recommendations. She repeatedly explained her concerns about the inadequacy of the report to the Boards Medical Director, but he took no further action. So she raised discrimination proceedings against the Board on the basis that other white male consultants, such as Professor Forrester and Mr Larmour, were not subject to the same bullying and harassing treatment that she suffered and that she would not have been treated in the way in which she was were it not for her sex and race. The Supreme Court unanimously dismisses the Boards appeal, and affirms that part of the Second Divisions interlocutor in which it allowed the appeal to the Inner House and quashed the decision of the Employment Appeal Tribunal. The judgment is given by Lord Hope, with whom the other Justices agree. The employment tribunal was entitled to hold that Professor Forrester and Mr Larmour were appropriate comparators, despite the fact that the situations which were being compared in each case were not precisely the same. The question whether the situations were comparable is a question of fact and degree, and there was a good deal of evidence to indicate that they were indeed comparable [21 22]. Previous case law is clear on how cases should be approached under section 63A(2) of the Sex Discrimination Act 1975 and section 54A(2) of the Race Relations Act 1976. The employment tribunals approach to the two stage test set out in those provisions was correct. At stage one, the complainant must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the complainant which is unlawful. So the prima facie case must be proved, and it is for the claimant to discharge that burden. In considering at that stage what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. The purpose of that assumption is to shift the burden of proof onto the respondent at the second stage. It does not diminish in any way the burden of proof at the first stage, when the tribunal is looking at the primary facts that must be established. But it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. They have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other. That was the position in this case [25 & 32]. It is clear that the tribunal addressed whether the situations of Professor Forrester and Mr Larmour were like for like comparisons. Having done that, it found that difference of treatment had been proved for which, in its judgment, there appeared to be no adequate explanation. It was entitled in these circumstances to draw a prima facie inference of sex and race discrimination in Mrs Hewages favour, which it was for the Board to rebut and it failed to do. There is no substance in the suggestion that the tribunal misdirected itself or that it considered only part of the evidence that it was required to examine at the first stage [26]. It was not necessary for the question remitted to the employment tribunal by the Inner House to be remitted to a differently constituted tribunal. There was an obvious advantage in remitting the matter to the original tribunal as it had already heard and been able to assess the evidence. This was pre eminently a matter for the Inner House, and there are no grounds for thinking that it made the wrong choice [33].
The respondents to these appeals (Mrs Gallagher, P, G and W) have all been convicted or received cautions or reprimands in respect of relatively minor offending. The disclosure of their criminal records to potential employers has made, or may in future make, it more difficult for them to obtain employment. In each case, the relevant convictions and cautions were spent under the legislation designed for the rehabilitation of ex offenders, set out below. Nonetheless, criminal records had to be disclosed if they applied for employment involving contact with children or vulnerable adults. In 1996, Mrs Gallagher was convicted of one count of driving without wearing a seatbelt, for which she was fined 10, and three counts of carrying a child under fourteen years old without a seatbelt, for which she was fined 25 on each count. In 1998, she was again convicted of two counts of the latter offence and fined 40 on each count. Mrs Gallagher has no other convictions. In 2013, having qualified as a social carer, she was admitted to the Northern Ireland Social Care Council Register of Social Care Workers. In 2014, she applied for a permanent position at a day centre for adults with learning difficulties and received a conditional offer of employment. On a disclosure request, she only disclosed the 1996 convictions regarding her children, but not the 1996 conviction as to herself, nor the 1998 convictions. Her job offer was withdrawn after the Enhanced Criminal Record Certificate disclosed all her previous convictions. In 1999, P received a caution for the theft of a sandwich from a shop. In the same year, P was convicted of the theft of a book worth 99p and of failing to surrender to the bail granted to her after her arrest for that offence. She received a conditional discharge for both offences. At the time of the offences, P was 28 years old, homeless and suffering from undiagnosed schizophrenia which is now under control. She has committed no further offences. P is qualified to work as a teaching assistant but has not been able to find employment. She believes this is the result of her disclosure obligations. In 1982, W was convicted of assault occasioning actual bodily harm. He was 16 years old at the time when the assault occurred during a fight between a number of boys on their way home from school. He received a conditional discharge, and has not offended since. In 2013, aged 47, he began a course to obtain a certificate in teaching English to adults. He believes that his chances of obtaining teaching employment will be prejudiced by the need to obtain a criminal record certificate for a job as a teacher. In 2006, G, aged 13, was arrested for sexually assaulting two younger boys. The offences involved sexual touching and attempted anal intercourse. There was exceptional mitigation. The police record indicates that the sexual activity was consensual and seems to have been in the form of dares and is believed to have been a case of sexual curiosity and experimentation on the part of all three boys. The Crown Prosecution Service decided it was not in the public interest to prosecute but suggested a reprimand. G received two police reprimands in September 2006. He has not offended since. In 2011, when working as a library assistant in a local college, he was required to apply for an enhanced criminal record check because his work involved contact with children. The police proposed to disclose the reprimand, with an account of the mitigation. As a result, G withdrew the application and lost his job. He has since felt unable to apply for any job requiring an enhanced criminal record check. In all four of the appeals, the respondents challenge two related statutory disclosure schemes as being incompatible with Article 8 of the European Convention on Human Rights 1950 (ECHR), protecting the right to respect for private and family life. This raises two separate questions, namely whether any interference with Article 8 ECHR is: (1) in accordance with the law (the legality test) and (2) necessary in a democratic society (the proportionality test). The first scheme, governing disclosure by the ex offender, is that under the Rehabilitation of Offenders Act 1974 (the 1974 Act) in England and Wales and the corresponding provisions of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (SI 1978/1908) in Northern Ireland, which are materially the same. By sections 4(2) (3) of the 1974 Act, where a question is put to an ex offender about previous convictions, offences, conduct or circumstances, there is no duty of disclosure. However, for any of thirteen specified purposes in the Rehabilitation of Offenders Act 1974 (Exceptions) Order (SI 1975/1023) (1975 Order) and the Rehabilitation of Offenders (Exceptions) Order (Northern Ireland) (SR(NI) 1979/195) (1979 Order), there is a duty of disclosure. The second scheme, governing disclosure by the Disclosure and Barring Service in England and Wales or Access NI in Northern Ireland, is governed by Part V of the Police Act 1997, as amended (the 1997 Act). Sections 113A and 113B deal with Criminal Record Certificates and Enhanced Criminal Record Certificates. These provisions create a system of mandatory disclosure of all convictions and cautions on a persons record if the conditions for the issue of a certificate were satisfied. In 2014, a more selective system for disclosure was introduced under the second scheme by the Disclosure and Barring Service the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (England and Wales) Order (SI 2013/1200) and the Police Act 1997 (Criminal Record Certificates: Relevant Matters) (Amendment) (Northern Ireland) Order (SI 2014/100). Broadly corresponding limitations were imposed in relation to the first scheme by the Rehabilitation Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order (SI 2013/1198) and the Rehabilitation Act 1974 (Exceptions) (Amendment) Order (Northern Ireland) Order (SI 2014/27). The Court of Appeal in England and in Northern Ireland (EWCA and NICA), affirming the decisions of the Divisional Court or High Court (except in Ws case), upheld the respondents case. First, the statutory schemes were considered incompatible with Article 8 ECHR for failing the legality test because of the breadth of the categories in the legislation. Secondly, the statutory schemes were considered disproportionate for failing to sufficiently distinguish between convictions and cautions of varying degrees of relevance. The appellants now appeal to the Supreme Court. Ps cross appeal concerns the refusal to quash article 2A(3)(c) of the 1975 Order for breach of Article 8 ECHR. The Supreme Court dismisses the appeals (except in Ws case), but varies parts of the orders below. A majority of the Court (Lord Sumption, Lord Carnwath, Lord Hughes and Lady Hale) reach that result based on a partial breach of the proportionality test. Lord Sumption (with whom Lord Carnwath and Lord Hughes agree) gives the lead judgment. Lady Hale (with whom Lord Carnwath also agrees) gives a concurring judgment. On the cross appeal, the Court varies the order of the Divisional Court by adding a declaration that article 2A(3)(c) of the 1975 Order is incompatible with Article 8 ECHR. Lord Kerr gives a separate judgment, disagreeing with the majoritys approach to the legality test and its application of the proportionality test. Lord Kerr would have dismissed the appeals (including in Ws case) and affirmed the declarations of incompatibility made by the EWCA and NICA. All members of the Supreme Court agree that Article 8 ECHR is engaged and that two conditions thus apply, namely satisfaction of: (1) the legality test and (2) the proportionality test [12], [73], [153]. They also all agree that the legality test requires, at least, accessibility and foreseeability [16], [73], [182]. Majority judgments (Lord Sumption and Lady Hale): Lord Sumption considers that the legality test, whether under Article 8 ECHR or otherwise, does not involve questions of degree [14]. For him, accessibility requires that it must be possible to discover what the provisions of a legal measure are, while foreseeability requires that a measure does not confer an unconstrained discretion [17], [31]. However, if the issue is how much discretion is too much (i.e. a question of degree), only the proportionality test can be used for review [17]. In the ECHR case law, in particular MM v United Kingdom (App. no. 24029/07), the Strasbourg Court has treated the need for safeguards as part of the foreseeability requirement and applied it as part of the legality test in cases where a discretionary power would otherwise be unconstrained and lack certainty of application [24]. There must be sufficient safeguards, exercised on known legal principles, against the arbitrary exercise of a discretion, so as to make its application reasonably foreseeable [31]. Lord Sumption disagrees with the EWCA and NICA as to the effect of the Supreme Courts decision in R (T) v Chief Constable of Greater Manchester Police [2014] UKSC 35, concerning the regime governing disclosure of criminal records in England before the changes introduced in March 2014 [15], [35 41]. He does not accept that R (T) decided that a measure may breach the legality test even where there is no relevant discretion and the relevant rules are precise and entirely clear [37]. For Lord Sumption, the rules governing the disclosure of criminal records under both the 1974 Act and the 1997 Act are highly prescriptive, mandatory and leave no discretion [42]. There is thus no real difficulty in assessing the proportionality of the two statutory schemes, so the legality test is satisfied both schemes are in accordance with the law for the purposes of Article 8 ECHR [42 45]. As to proportionality, Lord Sumption considers that two questions arise: (1) whether the legislation can legitimately require disclosure by reference to pre defined categories at all and (2), if so, whether the current boundaries of these categories are acceptable [46]. As to the first question, Lord Sumption considers that legislation by reference to pre defined categories is justified [50]. This is because: (1) the final decision about the relevance of a conviction should be that of the employer, who is best placed to assess the individual circumstances; (2) there is limited evidence that employers cannot be trusted to take an objective view; (3) the 1997 Act scheme is carefully aligned with the disclosure scheme under the 1974 Act, necessitating a category based approach; and (4) it would be impracticable to require a system of individual assessment [51 54]. On the second question, Lord Sumption considers that, with two exceptions, the carefully drawn categories in the legislation are not disproportionate [61 62]. The first exception is the multiple convictions rule, which does not achieve its purpose of indicating propensity as it applies irrespective of the nature, similarity, number or time intervals of offences [63]. The second exception concerns warnings and reprimands for younger offenders, the purpose of which is instructive and specifically designed to avoid damaging effects later in life through disclosure [64]. In Ps case, the disclosure was based on the multiple convictions rule under the 1997 Act, so the appeal against the declaration of incompatibility falls to be dismissed on that limited ground [65]. However, as to Ps cross appeal, article 2A(3)(c) of the 1975 Order is only to be declared incompatible with Article 8 ECHR (rather than quashed) [66]. As Mrs Gallaghers case also concerns the multiple convictions rule, she is also entitled to a declaration of incompatibility both as to the 1997 Act and the 1979 Order [67]. In Gs case, concerning a reprimand against a younger offender, the declaration of incompatibility as to the mandatory disclosure requirement under the 1997 Act is affirmed [68]. In Ws case, the High Courts order is restored since assault occasioning actual bodily harm may be a serious offence and it was appropriate to include it within the category of offences requiring disclosure [69]. Lady Hale agrees with Lord Sumption that, given the changes to the statutory schemes in 2014, the legality test is satisfied [72 73]. She considers that the law in question does not have to contain an individual review mechanism in every case. The requirement is only that it is possible to test, both the law itself and the decisions made under it, for proportionality [73]. The present schemes are not indiscriminate in nature and have been carefully devised to balance the competing public interests in (1) rehabilitation, (2) safeguarding and (3) practicability [75]. Given the need for a practicable and proportionate scheme, bright line rules are necessary [76 77]. She agrees with Lord Sumption that the categories used are proportionate, save as to the two exceptions above, and accordingly agrees with him on the disposal of each appeal and the cross appeal [78 79]. Lord Kerrs minority judgment: Lord Kerr would have dismissed the appeals (including in Ws case) and affirmed the declarations of incompatibility made by the EWCA and NICA. Lord Kerr disagrees with the majority on compliance with the legality test and the proportionality test. He illustrates the issues with the current statutory schemes by reference to a fuller account of the circumstances of each of the respondents [80 100]. He also reviews in detail the operation of the two statutory schemes before and after the 2014 amendments [101 146]. Lord Kerr considers that two important points follow from the Supreme Courts decision in R (T). These are: (1) that there must be adequate safeguards built into a disclosure scheme which allow for a proper evaluation of proportionality and (2) that the provisions then in force were condemned for the lack of any mechanism for independent review [149]. Lord Kerr identifies five central precepts that are relevant to the legality test [153, 158], but adds that not all of these must necessarily be satisfied [159]. He considers that the fundamental requirement is that the operation of the safeguards must permit a proper assessment of the proportionality of the interference with the Article 8 ECHR right [159]. He also clarifies that his approach to the legality test goes beyond only satisfying the two requirements of accessibility and foreseeability, contrary to Lord Sumptions approach [182 187]. Lord Kerr would have found the scheme in England and Wales to fail the legality test since the cases show that there is at least the potential for widespread disproportionate outcomes in disclosure [162]. Therefore, it cannot be said that there are safeguards adequately to examine proportionality [162]. He suggests two potential modifications: (1) a provision which linked the relevance of the data to be disclosed to the nature of the employment sought [165 173] and (2) an individual review mechanism in some cases, such as that introduced in Northern Ireland in 2016 [174 175]. Further, Lord Kerr would have found the scheme disproportionate [188 190].
This appeal arises from an unsuccessful management buyout of Evo Medical Solutions (Evo) made through Evo Medical Solutions Ltd (EMSL) in 2006. The buyout was funded by an interest bearing loan of 15m to EMSL by Swynson Ltd (Swynson), a company owned and controlled by Mr Hunt, a wealthy investor. Prior to the buyout, Swynson instructed an accountancy firm formerly known as Hurst, Morrison Thomson, now Lowick Rose LLP (in liquidation) (HMT), to carry out due diligence on Evo. It is common ground that HMT was negligent in failing to draw attention to fundamental problems about Evos finances, and that the transaction would not have gone ahead but for that failure. By July 2007, Evo was at risk of financial collapse. As a result, Mr Hunt caused Swynson to lend EMSL a further 1.75m in July 2007 and 3m in June 2008. At or about the same time, Mr Hunt acquired the majority beneficial ownership of EMSL. In December 2008, the 2006 and 2007 loans were refinanced. Mr Hunt and EMSL entered into a loan agreement under which Mr Hunt personally made a short term non interest bearing loan of 18.663m to EMSL. This was for the specific purpose of enabling EMSL to repay Swynson the original loan, with the aim of cleaning up Swynsons balance sheet and reducing its liability to tax. EMSL duly repaid the loan, but eventually ceased business and was unable to meet its liabilities. Swynson and Mr Hunt brought proceedings against HMT seeking to recover damages for losses resulting from the buyout and the making of all three loans in 2006, 2007 and 2008. HMT contends that they have no liability for damages on the basis that Swynson has suffered no loss, because EMSL repaid Swynson the whole of the original loan in December 2008. The Court of Appeal by a majority upheld the judges award of damages of 15m. This was because they held that the judge had been right to regard the December 2008 refinancing as res inter alios acta. It did not therefore affect the amount of Swynsons recoverable loss. The Supreme Court unanimously allows HMT (Lowick Rose LLP)s appeal. Lord Sumption gives the lead judgment, with which Lord Neuberger, Lord Clarke and Lord Hodge agree. Lord Neuberger and Lord Mance give concurring judgments. Res inter alios acta The general rule that loss which has been avoided is not recoverable as damages is subject to an exception in respect of collateral payments (res inter alios acta), where these are received independently of the circumstances giving rise to the loss [11]. The payments made by Mr Hunt to EMSL and by EMSL to Swynson to pay off the 2006 and 2007 loans cannot be regarded as collateral. First, the transaction discharged the very liability whose existence represented Swynsons loss [13]. Secondly, the money Mr Hunt lent to EMSL in December 2008 was not an indirect payment to Swynson, even though it ultimately reached them. Mr Hunts agreement to make that loan and the earlier agreements of Swynson to lend money to EMSL were distinct transactions between different parties, each made for valuable consideration [13]. Thirdly, the consequences of refinancing could not be recoverable as the cost of mitigation, because the loan to EMSL was not an act of Swynson and was not attributable to HMTs breach of duty [13; 45; 97]. Transferred loss The judge and Court of Appeal were correct to reject Swynsons second argument, based on the principle of transferred loss. This principle is a limited exception to the general rule that a claimant can recover only loss which he has himself suffered [14 15; 52 53; 102 105]. It does not arise here because it was no part of the object of the engagement of HMT, or any other aspect of the 2006 transaction, to benefit Mr Hunt [17; 54; 108]. Unjust enrichment HMT was not unjustly enriched by Mr Hunts provision of funds to EMSL to repay Swynson, with the result that Mr Hunt may not be subrogated to Swynsons claims against them: i. Lord Sumption is prepared to assume for the sake of argument that HMT was enriched [20], while Lord Neuberger and Lord Mance consider that HMT has undoubtedly been enriched in economic terms as a result of the discharge by EMSL of the loan due to Swynson [113; 57]. ii. Lord Sumption is again prepared to assume that if HMT was enriched, it was at Mr Hunts expense [20]. Lord Neuberger considers that HMTs enrichment was not sufficiently directly effected by Mr Hunts advance of the new loan [114 115], while Lord Mance notes that the questions whether a benefit was obtained at the expense of the claimant and whether it would be unjust for the defendant to retain it are difficult to separate in the present case [58 68]. iii. Mr Hunts case is that the enrichment of HMT was unjust because he made a mistake in assuming that the December 2008 refinancing would not affect the claim he and/or Swynson had against HMT [21; 78]. But the purpose of the law of unjust enrichment is to correct normatively defective transfers of value [22; 117]. The role of equitable subrogation in this context is to replicate as far as possible the element of the transaction whose absence made it defective [31; 86]. The December 2008 refinancing was not a defective transaction: Mr Hunt got precisely what he intended to get, namely the discharge of EMSLs debt to Swynson and a right to recover the new loan from EMSL [32 35; 119; 87]. As Lord Neuberger and Lord Mance also note, the fact that HMT received a benefit as an unforeseen and incidental consequence of Mr Hunts pursuit of those objectives does not establish any normative or basic defect in the arrangements made [117; 87 89].
This case concerns jurisdiction over claims relating to thefts from two cargo containers. The first container was allegedly hi jacked in Belgium in September 2011. 756 of an original 1,386 cigarette cartons disappeared from the second container while it was parked overnight near Copenhagen. The consignors of these containers, and respondents in both appeals, are two companies in the British American Tobacco Group. The consignors are claiming against the English main contractors, Exel Europe Ltd (Exel), who undertook responsibility for the carriage and also against the sub contractors, the appellants, in whose hands the containers were when the alleged losses occurred. Exel has played no part in the appeals. In the appeal concerning the first container the appellants are H Essers Security Logistics BV and H Essers Transport Company Nederland BV (collectively, Essers) and in the appeal concerning the second container the appellant is Kazemier Transport BV (Kazemier). In both cases the carriage of containers was subject to the Convention on the Contract for the International Carriage of Goods by Road 1956 (CMR), which is given the force of law in the United Kingdom by the Carriage of Goods by Road Act 1965. Article 31 CMR sets out certain bases on which courts and tribunals can have jurisdiction over disputes arising from contracts of carriage. Article 34 CMR provides that where a contract of carriage is performed by successive carriers, each is responsible for the performance of the whole operation. Under article 36 CMR, claims under the contract may be brought against the first and last carriers and the carrier in possession of the goods when the loss, damage or delay occurred. The issue in the appeals is whether the consignors can found jurisdiction in England against Essers and Kazemeir as successive carriers within the meaning of CMR by relying on the presence in England of, and the proceedings brought against, Exel and/or upon a provision in the main contract for English jurisdiction. The High Court set aside the service of claim forms on Essers and Kazemeir. The Court of Appeal reached the opposite conclusion. Essers and Kazemeir appealed to the Supreme Court. The Supreme Court allows the appeals by Essers and Kazemeir and restores the High Courts order setting aside the service of claim forms. Lord Mance writes the lead judgment, with which Lord Neuberger and Lord Reed agree. Lord Sumption and Lord Clarke write concurring judgments. Does Article 31 apply to successive carriers? Article 31 CMR applies to disputes where a successive carrier is involved [19 20, 61]. Article 31 CMR confers jurisdiction only on the courts or tribunals of the jurisdiction (i) as agreed by the parties, (ii) where the defendant is ordinarily resident, or has his principal place of business, or the branch through which the contract was made, or (iii) the place of consignment or delivery [33, 62]. In order to found jurisdiction in England, the respondents must bring their claim under one of these heads. It is common ground that England was not the place of consignment or delivery for either container [31, 64]. Did Essers and Kazemeir agree to English jurisdiction? The appellants became party to the respective contracts made between the respondents and Exel but article 34 CMR qualifies this position by adding that a successive carrier becomes party to the contract of carriage under the terms of the consignment note [23]. It would be contrary to the general principle that contract depends on agreement to hold a successive carrier bound by a choice of court clause, or any other clause not evidenced by the consignment note and of which he had no express notice. On that basis neither Essers nor Kazemeir were bound by an English jurisdiction clause in the original contracts [26]. Can a claimant bring subsequent carriers into the jurisdiction where it is already suing one carrier? The first, last and performing carriers under article 36 CMR hold joint and several liability, rather than alternative liability [34 42]. CMR reflects a considered decision as to the balance of interests between all potential claimants and defendants and ought not to be interpreted to include an additional head of jurisdiction allowing for a defendant domiciled in one member state to be sued in the courts of the place where a co defendant was domiciled, unlike the article 6.1 of the Regulation on Civil Jurisdiction and Judgments, Council Regulation (EC) No 44/2001 of 22 December 2000 (the Brussels Regulation) [46 47]. Was England the location of the branch or agency through which the relevant contract of carriage was made? Article 31 CMR refers to the original contract between the consignor and the primary carrier, rather than that through which any successive carrier acceded. Therefore England is not the relevant location of such branch or agency [32, 66]. Does the Brussels Regulation provide any other basis for jurisdiction or aid the interpretation of the CMR? The Brussels Regulation does not provide any other basis for jurisdiction over Essers or Kazemeir or otherwise act as an aid to the interpretation of the CMR. The CMR represents a balanced regime adopted across 55 states, only half of which are in the EU. It does not impinge on any of the principles of EU law which the Court of Justice has, in other cases, held to prevail over such international agreements [48 57]. Lord Clarke and Lord Sumption both consider that the commercial logic of articles 34 and 36 points towards the recognition of a jurisdiction to receive claims against all three carriers in one set of proceedings but agree with Lord Mance that the language of the CMR clearly provides otherwise [60, 69].
Gaming duty is an excise duty that is charged in accordance with the provisions of the Finance Act 1997 (the FA) on any premises where dutiable gaming takes place. Non negotiable gaming chips and free bet vouchers (collectively referred to as Non Negs for the purposes of this appeal) are promotional tools provided free of charge by some casino operators to selected gamblers to encourage them to gamble in their casinos. Non Negs may typically only be used to place bets at the gaming tables for their face value and cannot be used to buy goods or services, nor encashed. This appeal is about whether Non Negs should be taken into account as part of the bankers profits for the purposes of computing gaming duty in accordance with section 11(8)(b) read with section 11(10) of the FA. Bankers profits are defined by section 11(10) as the value, in money or moneys worth, of the stakes staked with the banker in any such gaming (section 11(10)(a)) less the value of the prizes provided by the banker to those taking part in such gaming otherwise than on behalf of a provider of the premises (section 11(10)(b)). The valuation of prizes for the purposes of section 11(10)(b) is governed by section 11(10A) of the FA which incorporates by reference, with any necessary modifications, certain provisions of the Betting and Gaming Duties Act 1981 (the BGDA). From October 2008 until September 2012, London Clubs Management (LCM) included the face value of all the Non Negs played by gamblers and retained by its casinos in the calculation of its bankers profits for the purposes of computing its liability for gaming duty. It subsequently considered that this approach was incorrect and that it had overpaid gaming duty by over 1.97 million. Her Majestys Revenue and Customs (HMRC) rejected LCMs claim for repayment of the alleged overpayment and LCM appealed that decision. The First tier Tribunal dismissed LCMs appeal. The Upper Tribunal allowed LCMs appeal. The Court of Appeal dismissed HMRCs further appeal. HMRC appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. The leading judgment is given by Lord Kitchin, with whom Lord Carnwath and Lady Black agree. Lady Arden gives a separate judgment, agreeing that the appeal should be dismissed but for materially different reasons. Lord Sales gives a separate judgment agreeing with the majority on the decisive issues in the appeal but reaching a different conclusion on a related issue. Lord Kitchin holds that Non Negs are neither stakes staked, nor have any value in money or moneys worth within the meaning of section 11(10)(a) of the FA [31 48]. First, the assessment of the gross gaming yield from any premises requires a focus on the activity of gaming and not the provision of other goods or services [36]. Second, the assessment required by section 11(10) must be carried out from the bankers perspective, for it is the bankers profits which must be brought into account in calculating the gross gaming yield [37]. Third, the reference to money or moneys worth in section 11(10)(a) emphasises that it is the real world value of the stakes in the hands of the banker which matters [38]. A gambler who plays with cash chips in a casino is not staking the chips as such but the money those chips represent, which the gambler has deposited with the casino [31 35]. That is not the case when a gambler places a bet using a Non Neg, which essentially amounts to a free bet. Therefore, a Non Neg holds no real world value to the casino when a gambler loses it in a bet, save that it eliminates the chance that the casino may have to pay out the winnings corresponding to that bet. However, that does not impart a value, in money or moneys worth to the Non Neg, nor mean that it is a stake staked within the meaning of section 11(10)(a) of the FA [44]. Lord Sales agrees with Lord Kitchins reasoning in this regard and provides further reasons in support of the conclusion [88 92]. Lady Arden adopts different reasoning for dismissing the appeal [61 78]. She holds that the value of a stake for the purposes of section 11(10)(a) is what a person would pay for it in the open market [62]. The objective valuation of the stake means that it can be taken into account at an appropriate value if it has generated gaming activity, which is what gaming duty is charged upon [70]. A Non Neg is a stake for the purposes of assessing the bankers profits under section 11(10)(a) of the FA [75]. However, the appeal fails on the facts of this case as no evidence was adduced to support any objective valuation [68]. The Supreme Court also considers the related issue of what value, if any, should be given to Non Negs for the purposes of section 11(10)(b) of the FA. Lord Kitchin expresses the view that, as with section 11(10)(a), it is the real world cost to the banker of providing the prizes that must be brought into account for the purposes of assessing the value of the prizes provided by the banker, subject to the relevant provisions of the BDGA [38]. Under the BGDA, the cost to the banker of awarding a voucher as a prize is taken to be its face value if, among other things, it may be used in place of money as whole or partial payment for benefits of a specified kind obtained from a specified person. Non Negs do not satisfy this condition and must therefore be treated as having no value for the purposes of section 11(10)(b) of the FA [54]. Lord Kitchin is confirmed in his views by the consideration that the result is a coherent scheme for the treatment of Non Negs, whether used by gamblers to place bets or when returned to gamblers as prizes [56]. Lord Sales reaches a different conclusion from the majority in this regard. When a Non Neg is awarded as a prize, it represents a real cost to the banker which ought to be brought into account [93]. A Non Neg given as a prize satisfies the relevant conditions under the BDGA 1981, such that it should normally be treated as having its face value for the purposes of section 11(10)(b) of the FA [95 104]. Lady Arden agrees with Lord Saless conclusion in this regard [82 84].
The appellant, Ms Samuels, was an assured shorthold tenant of a property in West Bromwich, Birmingham, where she lived with four children. In July 2011, having fallen into rent arrears, she was given notice to leave. She later applied to the respondent council to be treated as homeless under Part VII of the Housing Act 1996 (the 1996 Act). A local housing authority becomes under a duty to secure accommodation to a person found homeless if certain conditions are satisfied. One condition is that they are not satisfied that the person became homeless intentionally. That depends on whether she deliberately did or failed to do anything which caused her to leave accommodation that was available and would have been reasonable for her to continue to occupy. Article 2 of the Homelessness (Suitability of Accommodation) Order 1996 provided that, in determining whether it would be reasonable for a person to continue to occupy accommodation, the local authority will take into account whether that accommodation is affordable. That includes consideration of the financial resources available to that person, including social security benefits, and consideration of the persons other reasonable living expenses. The local authority is required to have regard to guidance given by the Secretary of State, which at the time was the Homelessness Code of Guidance for Local Authorities (the Code) issued in 2006. Paragraph 17.40 of the Code stated: In considering an applicants residual income after meeting the costs of the accommodation, the Secretary of State recommends that housing authorities regard accommodation as not being affordable if the applicant would be left with a residual income which would be less than the level of income support or income based jobseekers allowance that is applicable in respect of the applicant, or would be applicable if he or she was entitled to claim such benefit. [] The council decided that Ms Samuels was intentionally homeless, on the grounds that the accommodation in West Bromwich was affordable and reasonable for her to continue to occupy, and that its loss was the result of her deliberate act in failing to pay the rent. In concluding that the accommodation was affordable, the council found that the shortfall in rent could have been met by greater flexibility in the household budgeting. Ms Samuelss appeal to the County Court against the councils decision was dismissed and her further appeal was dismissed by the Court of Appeal. The central issue in her appeal to the Supreme Court is whether the council adopted the correct approach in determining that the accommodation was affordable for the purposes of the 1996 Act. The Supreme Court unanimously allows the appeal and quashes the councils decision. Lord Carnwath gives the judgment of the court. The 1996 Order requires the authority to take into account all sources of income, including all social security benefits. There is nothing in it to require or justify the exclusion of non housing benefits of any kind. It also requires consideration of the applicants reasonable living expenses, which necessitates an objective assessment, not simply the subjective view of the case officer [34]. Even if the recommendation in paragraph 17.40 of the Code in respect of income support is not interpreted as extending to benefits for children, the lack of a specific reference does not make the level of those benefits irrelevant. Benefit levels are not generally designed to provide a surplus above subsistence needs for the family. If comparison with relevant benefit levels is material to the assessment of the applicant, it should not be any less material in assessing what is reasonable by way of living expenses in relation to other members of the household. The duty to promote and safeguard the welfare of children under the Children Act 1989 is also relevant [35]. As one would expect, the guidance makes clear that the amount of an applicable benefit will vary according to the circumstances and composition of the applicants household. It also refers to the current tariffin respect of such benefits (plural), implying that the tariff may be looked at in respect of benefits other than income support, and is at least a good starting point for assessing reasonable living expenses [35]. The review officer in Ms Samuels case asked whether there was sufficient flexibility to enable her to cope with the shortfall between her rent and her housing benefit. But the question ought to have been what her reasonable living expenses were (other than rent), to be determined having regard to both her needs and those of the children. The total expenses shown in the schedule provided by her solicitors (1,234.99) was well within the amount regarded as appropriate by way of welfare benefits (1,349.33). It is difficult to see by what standard those expenses could be regarded as unreasonable [36]. The appeal is therefore allowed, and the review decision quashed. In light of the information available to the Court, Lord Carnwath finds it hard to see on what basis the finding of intentional homelessness could be properly upheld. He therefore hopes that on reconsideration the council will be able to accept full responsibility under Part VII of the 1996 Act for Ms Samuels and her family [37].
This appeal is concerned with the roles of the case investigator and the case manager when handling concerns about a doctors performance under the disciplinary procedures introduced over eight years ago for doctors and dentists in the National Health Service. The national policy framework is known as Maintaining High Professional Standards in the Modern NHS (MHPS), which the Trust has implemented through its own policies D4 and D4A. Dr Chhabra was employed by the Trust as a consultant forensic psychiatrist at Broadmoor Hospital, which is a high security unit, on 3 September 2009. Following concerns about Dr Chhabras performance, Dr Nicholas Broughton, the Trusts medical director and case manager for these concerns, appointed Dr Amanda Taylor, a consultant forensic psychiatrist from another trust, as case investigator on 15 December 2010. He instructed Dr Taylor to investigate the following: (1) an allegation that Dr Chhabra, travelling on a busy train, discussed an incident involving a patient and read a medical report on a patient whose name and personal details could be clearly seen; (2) an allegation that Dr Chhabra had dictated patient reports when travelling on a train; (3) concerns about Dr Chhabras working relationship with her clinical team; and (4) a complaint from one of Dr Chhabras patients, made through a solicitor. Dr Taylor found, in her report of June 2011, that Dr Chhabra had breached, and admitted breaching, patient confidentiality (1) by having patient documents clearly visible and (2) by dictating sensitive reports on the train. She also found that there were difficulties within Dr Chhabras clinical team which were issues of capability that needed to be addressed; and that the solicitors complaint did not have merit. Her report also recorded Dr Chhabras unchallenged account that she had not appreciated at the time that her practice compromised patient confidentiality and that she believed that she had ensured that no other passengers were close by when she dictated the reports. Dr Taylor also reported on an allegation by Dr Chhabras former secretary, which had not been expressly included in her terms of reference, that she had made telephone calls when travelling by train to work in which she had discussed patient information. Dr Taylor did not make any finding on the veracity of this allegation. In response to a concern raised by Dr Chhabra, the Trust had undertaken that Mr Wishart, its associate human resources director, could take no part in the investigation. But, unknown to Dr Chhabra, Dr Taylor had communicated with Mr Wishart during the investigation. Most significantly, Dr Taylor had sent Mr Wishart a draft of her report and Mr Wishart prepared suggested amendments to the draft. The extensive amendments had stiffened the criticism of Dr Chhabra. Dr Taylor had accepted some of the suggested amendments but not others. Among those she had accepted was the characterisation as serious of breaches of confidentiality she had described in her report. On 12 August 2011 Dr Broughton wrote two letters to Dr Chhabras solicitors. One informed her that he regarded the concerns about her team working to be matters of capability. The other stated that he proposed to put to a disciplinary panel not only the admitted breaches of confidentiality but also (i) the allegation, on which Dr Taylor had noted there had been a conflict of opinion, that Dr Chhabra, while travelling by train, had telephoned her secretary to discuss patient related information, and (ii) an allegation, which was not within Dr Taylors remit and on which she had not reported, that Dr Chhabra had breached patient confidentiality by disclosing information via email to her medical protection society and legal advisers. Dr Broughton expressed the view that the charges were potential gross misconduct and that dismissal was a possible outcome of the hearing before the disciplinary panel. Dr Chhabras solicitors objected to the charge of breach of patient confidentiality by disclosing information to her protection society and her legal advisers, which had not been the subject of Dr Taylors investigation. At their request the Trust agreed to instruct Dr Taylor to investigate that allegation. Dr Taylor carried out this further investigation and reported that there was no complaint to answer. As a result, on 17 January 2012 Dr Broughton informed Dr Chhabra by letter that that charge would not be pursued at the disciplinary hearing. On 1 June 2012 Judge McMullen QC granted Dr Chhabra a declaration and injunctive relief preventing the disciplinary panel from investigating the confidentiality concerns, including those not grounded in Dr Taylors report, as matters of gross misconduct. On 25 January 2013 the Court of Appeal upheld the Trusts appeal. The case manager was not confined to the findings of fact of the case investigator but could consider complaints supported by evidence reported by the case investigator, even if denied by the practitioner. The conduct panel would resolve issues of disputed fact. Dr Broughton was entitled to regard the breach of confidentiality as a potentially serious offence and as a result was justified in deciding to convene the conduct panel. Dr Chhabra appeals to this court. The Supreme Court unanimously allows Dr Chhabras appeal and orders the Trust not to pursue any of the confidentiality concerns contained in the Trusts letter of 12 August 2011 as matters of gross misconduct; and not to pursue any confidentiality concerns without first re starting and completing an investigation under its policy D4A. The first and most significant issue is the roles of the case investigator and the case manager. The procedures do not allow the case investigator to determine the facts. Their aim is to have someone, who can act in an objective and impartial way, investigate the complaints identified by the case manager to discover if there is a prima facie case of a capability issue or misconduct. It would introduce an unhelpful inflexibility into the procedures if (i) the case investigator were not able to report evidence of misconduct which was closely related to but not precisely within the terms of reference (as in the former secretarys allegations) or (ii) the case manager were to be limited to considering only the case investigators findings of fact when deciding on further procedure. Similarly, it would be unduly restrictive to require the case manager to formulate the complaint for consideration by a conduct panel precisely in the terms of the case investigators report. Neither MHPS or the Trusts policies in D4 and D4A are so inflexible or restrictive. But the procedure does not envisage that the case manager can send to a conduct panel complaints not considered by the case investigator or for which the case investigator has gathered no evidence. The Trust was therefore correct in acceding to Dr Chhabras request for a second report from Dr Taylor in relation to the new allegation of breach of confidentiality in her communications with the protection society and her solicitors. There were number of irregularities in the proceedings against Dr Chhabra that cumulatively render the convening of the conduct panel unlawful as a material breach of her contract of employment. First, Dr Taylors findings were not capable, taken at their highest, of supporting a charge of gross misconduct, defined in the policy as so serious as to potentially make any further relationship and trust between the Trust and the employee impossible. The breaches of confidentiality she recorded, including the former secretarys allegations, were qualitatively different from a deliberate breach of confidentiality such as speaking to the media about a patient. Secondly, in reaching the view that Dr Chhabras behaviour could amount to gross misconduct, Dr Broughton founded on the words added to para 13.4.1 with effect from 28 March 2011, after the incidents in this case. The list of misconduct in para 13.4.1 comprised only typical examples of what the Trust saw as amounting to gross misconduct and was not a comprehensive statement of the concept. But Dr Broughton relied on the amended provision in support of his view that the complaints might amount to gross misconduct and quoted it in his letter of 12 August 2011 relating to the disciplinary procedure. Thirdly, the Trust breached its contract with Dr Chhabra when Mr Wishart continued to take part in the investigatory process in breach of the undertaking the Trust had given. In particular, when Mr Wishart proposed extensive amendments to Dr Taylors draft report and Dr Taylor accepted some of them, which strengthened her criticism of Dr Chhabra, the Trust went outside the agreed procedures which had contractual effect in ways going beyond clarifying its conclusions. The report had to be the product of the case investigator. It was not. Further, the disregard for the undertaking amounted to a breach of the obligation of good faith in the contract of employment. It was also contrary to policy D4s principle that managers act in a way that an objective observer would consider reasonable: Dr Chhabra had an implied contractual right to a fair process, which Mr Wisharts involvement undermined. Fourthly, Dr Broughton did not re assess the decision in his letter of 12 August 2011 that the matters were considered as potential gross misconduct after he departed from the additional complaint once he had received Dr Taylors second report. He was obliged to do so under para 3.1 of policy D4: an objective observer would not consider it reasonable to fail to do so. The cumulative effect of those irregularities is that it would be unlawful for the Trust to proceed with the disciplinary procedure and that the Court should grant relief. The categorisation of Dr Chhabras conduct as gross misconduct is itself a sufficient ground for injunction.
This case concerns an aspect of the Supreme Court's jurisdiction to hear appeals in Scottish civil cases. Mr and Mrs Politakis are the directors and the only shareholders of Apollo Engineering Ltd (Apollo). They wish to appeal against two orders that were made in a case stated for the opinion of the Inner House of the Court of Session under section 3 of the Administration of Justice (Scotland) Act 1972. The stated case arose from an arbitration between Apollo and James Scott Ltd in relation to a contractual dispute [2]. Apollo ran out of funds and could no longer afford legal representation. On 18 January 2012 the Inner House made an order refusing Mr Politakis request that he represent Apollo, on the basis that as a matter of Scots law, a company requires to be legally represented. On 27 November 2012 the Inner House made a further order in which, among other things, it (1) refused Mr Politakis leave to appeal to the Supreme Court against the order of 18 January 2012; (2) refused to allow Mr Politakis to be joined as a party either to replace or in addition to Apollo; and (3) dismissed the stated case [3, 4]. Section 40 of the Court of Session Act 1988 (the 1988 Act) regulates appeals to the Supreme Court in Scottish civil cases. It provides that it is competent to appeal from the Inner House to the Supreme Court without the leave of the Inner House, against: (1) a judgment on the whole merits of the cause; (2) an interlocutory judgment where there is a difference of opinion among the judges; or (3) where the interlocutory judgment is one sustaining a dilatory defence and dismissing the action. It is also competent to appeal to the Supreme Court with the leave of the Inner House against any other type of interlocutory judgment of the Inner House [6]. The House of Lords had decided in the case of John G McGregor (Contractors) Ltd v Grampian Regional Council 1991 SC (HL) 1 that an opinion of the court in a stated case did not constitute a judgment within the meaning of section 40 of the 1988 Act. In the present case, an opinion on the legal issues in the stated case had not been given [7]. Two issues are before the Supreme Court: (1) whether the McGregor principle applies in the present case so that an appeal against the order of 27 November 2012 is incompetent; and (2) if not, whether the part of the order of 27 November 2012 which dismissed the stated case can competently be appealed to the Supreme Court under section 40 of the 1988 Act without the leave of the Inner House. The Supreme Court directed that these two issues should be the subject of an oral hearing [8]. There is no self standing right of appeal to the Supreme Court against the order of 18 January 2012, because it was an interlocutory judgment under section 40 of the 1988 Act and the Inner House has refused leave to appeal against it [9]. Apollo can competently appeal to the Supreme Court without the leave of the Inner House against the part of the order of 27 November 2012 which dismissed the stated case, as long as the appeal raises a question which can be responsibly be certified by counsel as reasonable [16, 28, 29]. Lord Hope gives the judgment of the Court. On issue (1), the Court holds that none of the cases in this area, including the McGregor case, offer direct assistance on the question that is to be resolved, and none deals with the situation where the court has declined to do what the statute provides for, which is to give an opinion [10 14]. The ordinary use of language indicates that an appeal to the Supreme Court against an opinion of the Inner House under section 3 of the 1972 Act is excluded by necessary implication because it is for the opinion of that court only that the case has been stated. But the 1972 Act makes no provision for the course of action that the Inner House felt obliged to take in this case: dismissing the stated case without giving its opinion on the questions that were before it at all [15]. On issue (2), the Court holds that the order dismissing the stated case cannot be regarded as an interlocutory judgment of the kind which is appealable only with leave under section 40 of the 1988 Act. All the issues that were in controversy before the Inner House were disposed of when the stated case was dismissed. In dismissing the stated case, the court exhausted its functions under the statute, save as to resolving any outstanding issues about expenses. The effect of the order was to end the proceedings completely, in just the same way as if it had encompassed the courts opinion on the questions that were before it [22, 23]. It is not easy to characterise the order dismissing the stated case as one sustaining a dilatory defence and dismissing the action. The order gave effect to a motion by James Scott Ltd based on Apollos inability to fulfil the courts rules of practice about representation. It would be stretching the language of the statute to say that this objection was a defence, especially as the procedure under section 3 was not one that could, in the ordinary sense of the word, be defended [27]. It may not matter much whether the order is to be regarded as a judgment on the whole merits of the cause or as one sustaining a dilatory defence, as both are appealable without the leave of the Inner House. On balance, however, it would be more correct to regard it as a judgment on the whole merits of the cause within the meaning of section 40 of the 1988 Act, even though the Inner House did not address itself to the issues raised in the stated case [27]. As is the case with all other orders that are appealable without leave however, Apollos petition of appeal must be certified by two counsel as reasonable the test for which is whether the appeal raises arguable points of law which are of general public importance. The only question which the Supreme Court can consider is whether the order of the Inner House to dismiss the stated case was one which was open to it to make under the jurisdiction given to it by the statute. Unless something has gone seriously wrong, however, this was an exercise of judgment on a matter of procedure with which this court would not normally wish to interfere [29]. The question whether there was any way in which Apollos interests could have been represented which might have avoided the situation in which the Inner House felt obliged to dismiss the stated case is not before the Court. But it is a troublesome aspect of this case, and there may be grounds for thinking that the rule which disables a company from being represented other than by counsel or a solicitor with a right of audience needs to be re examined [30].
The Appellant is a practising barrister and is black. She alleges that the Respondent discriminated against her on grounds of her race by bringing disciplinary proceedings which ended in her acquittal on appeal. On 9 June 2010, the Respondents Complaints Committee brought 6 disciplinary charges against the Appellant. On 23 May 2011, the Disciplinary Tribunal found 5 of these charges proved. The Appellant appealed to the Visitors of the Inns of Court (the Visitors). On 17 August 2012, her appeal was allowed on the basis that none of the alleged conduct involved any breach of the Bar Code of Conduct. On 21 February 2013, the Appellant issued the present proceedings, which included an allegation of violation of Article 14 of the European Convention on Human Rights (ECHR) read in conjunction with Article 6 ECHR, contrary to section 6 of the Human Rights Act 1998 (the 1998 Act). In its defence, the Respondent maintained that this claim was time barred under section 7(5)(a) of the 1998 Act which provides that proceedings must be brought before the end of the period of one year beginning with the date on which the act complained of took place. On 3 January 2014, the Respondent issued an application seeking an order that the statement of case be struck out on the basis that none of the Appellants claims had a real prospect of success and, in any event, there was a complete defence under section 7(5)(a). On 2 April 2014, the Respondents application for strike out was granted. The Appellant appealed. On 18 December 2014, Warby J held that there was a sufficiently pleaded case that the Respondent indirectly discriminated against the Appellant. However, he also held that the claim was time barred under section 7(5)(a) of the 1998 Act. The Appellant appealed to the Court of Appeal. The Court of Appeal held that the limitation period under section 7(5)(a) had started to run when the Disciplinary Tribunal had found the charges against the Appellant proved and so had expired before she had issued her claim. The Appellant was granted permission to appeal to the Supreme Court on the time limit issue under section 7(5)(a). The issues arising before the Supreme Court were: (i) whether the disciplinary proceedings against the Appellant were to be considered a series of discrete acts or a single continuing act and (ii) if the latter, did that act end with the verdict of the Disciplinary Tribunal or with the verdict of the Visitors? The Supreme Court unanimously allows the appeal. Lord Lloyd Jones gives the lead judgment with which the other Justices agree. As a preliminary issue, the Court was required to determine the precise nature of the discrimination claim which the Appellant wished to make [15]. In this regard, the Court concluded that the Appellants challenge was to the conduct of the Respondent in bringing and pursuing disciplinary proceedings against her, not to an alleged state of affairs in which BME lawyers were more likely to be the subject of such proceedings. Therefore, the bringing and pursuit of the disciplinary proceedings must be the focus of the investigation in terms of section 7(5)(a) of the 1998 Act [16 21]. The question which then arose in relation to the application of section 7(5)(a) was whether the bringing of disciplinary proceedings by the Respondent was to be considered a series of discrete acts or a single continuous act [22]. Section 7(5)(a) should not be read narrowly and must be capable of providing an effective and workable rule for situations where the infringement of a Convention right arises from a course of conduct. Leaving a claimant to have recourse only to the discretionary remedy in section 7(5)(b) is inappropriate [23]. The alleged infringement of Convention rights in this case arose from a single continuous course of conduct. The essence of the complaint made by the Appellant was the initiation and pursuit of the proceedings to their conclusion. It cannot have been the intention of Parliament that each step should be an act to which the one year limitation period should apply [29]. Under section 7(5)(a) time begins to run from the date when the continuing act ceased, not when it began [30]. In determining when the continuing act ceased, it was necessary to consider whether the Respondents conduct in proceedings before the Visitors should be considered as forming part of the same continuing act as its conduct in proceedings before the Disciplinary Tribunal. In order to answer this question, it was necessary to consider the nature of the regulatory scheme and the precise features of the Respondents conduct [32 34]. Several features of the regulatory scheme and the Visitors jurisdiction, as applicable to the disciplinary proceedings against the Appellant, led to the conclusion that the Respondents part in the proceedings before the Disciplinary Tribunal and those before the Visitors should be regarded as part of a single continuing act [35]. Therefore, the single continuing act in this case continued until the Visitors allowed the Appellants appeal on 17 August 2012. The Appellant commenced the present proceedings on 21 February 2013, within the period of one year beginning with the date on which the act complained of took place, as required by section 7(5)(a) and the appeal should accordingly be allowed [39]. The Respondent asked the Court to uphold the Court of Appeals decision on the alternative ground that Warby J was wrong to hold that the Article 14 ECHR claim of indirect discrimination had real prospects of success. The Respondent argued that this claim could have no real prospect of success without statistics sufficient to raise a potential case of discrimination, general statements of disproportionate impact being unlikely to be sufficient [41]. The Court observed that it was adventitious that this point was before the Court [42]. However, the Appellant was entitled to rely upon a 2013 report into the Respondents complaint system which analysed data from 2007 11, in conjunction with the unhappy history of the proceedings against her, as supporting her case that she had been the victim of indirect discrimination. The European Court of Human Rights had made clear that indirect discrimination can be proved without statistical evidence [43].
This appeal concerns the application of Article 3 of the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). Under Article 3 it is unlawful to remove or retain a child in breach of rights of custody attributed to a person under the law of the state in which the child was habitually resident immediately before removal or retention. This case concerns two small children, born and raised in France, who were brought to Scotland by their mother in July 2013 with the consent of their father, who remained in France. The mother and children were to live in Scotland for the period of about a year. In November 2013 the relationship between the parents ended. On 20 November 2013 the mother commenced proceedings in which she sought a residence order in respect of the children and an interdict against the father removing them from Scotland. The father argued that the initiation of those proceedings was a wrongful retention within the meaning of the Convention on the basis that the children were habitually resident in France immediately before proceedings commenced. The Outer House of the Court of Session concluded that the children were still habitually resident in France on 20 November 2013. This judgment was based on the fact that the move to Scotland had not been intended by both parents to be permanent. The Inner House of the Court of Session reversed the Outer Houses decision on the basis that shared parental intention to move permanently to Scotland was not an essential element in any alteration of the childrens habitual residence. The Inner House concluded that the children were habitually resident in Scotland at the material time. The father appealed to the Supreme Court on the basis that the Outer House had been correct, and that the Inner House had in any event erred in its approach. The mother argued that there had in any event been no wrongful retention. The Supreme Court unanimously dismisses the appeal. The Court considers that, for the purposes of habitual residence, the stability of residence, rather than its degree of permanence, is important. There is no requirement that the child should have been resident in the country in question for a particular period of time or that one or both parents intend to reside there permanently or indefinitely. As the Court has previously held in a series of cases, habitual residence is a question of fact which requires an evaluation of all relevant circumstances [16]. In determining habitual residence, the focus is upon the situation of the child, with the intentions of the parents being merely one of the relevant factors. It is necessary to assess the degree of the integration of the child (or, in the case of an infant or young child, the degree of integration of those on whom the child is dependent) into a social and family environment in the country in question. There is no rule that one parent cannot unilaterally change the habitual residence of a child [17]. In the present case, the children were habitually resident in Scotland within the meaning of the Convention. The absence of a joint parental intention to live permanently in Scotland was not decisive, nor was an intention to live in a country for a limited period inconsistent with becoming habitually resident there. The important question is whether the residence has the necessary quality of stability, not whether it is necessarily intended to be permanent [21]. Following the childrens move with their mother to Scotland, their life there had the necessary quality of stability. Their home was Scotland for the time being, their social life and much of their family life was there. The longer time went on, the more integrated they became into their environment in Scotland [23]. Given this conclusion, the question of wrongful retention did not arise [25].
The appellant, KM, is a profoundly disabled man aged 26, who lives with his mother, brother and sister [1]. He was born without eyes and has a range of serious mental and physical medical conditions [8]. He is intelligent and articulate with many achievements including GCSE passes in French and music [8]. He needs substantial support in feeding, self care and other aspects of daily living [9]. The respondent, Cambridgeshire County Council, is the appellants local authority. Under section 2 of the Chronically Sick and Disabled Persons Act 1970 [the Act] a local authority owes a duty to a disabled person, if it is necessary in order to meet his needs, to make arrangements for the provision of a number of specified services including practical assistance in the home, recreational facilities inside and outside the home and assistance with adaptations to the home [11 13]. In fulfilling its duty, a local authority must act according to the guidance of the Secretary of State for Health, but in place of directly providing services it can, and in some cases must, make a direct payment to the disabled person to enable him to arrange his own support [22]. To determine the appropriate direct payment, the respondent applied its Resource Allocation System, which calculates the payment due based on the average funding for people with specific needs in the local authority area; with additional sums calculated in severe cases by reference to an Upper Banding Calculator. An independent social worker had produced a report apparently estimating the total annual cost of supporting the appellant as c. 157,000. The respondent did not expressly contest this assessment and classified his needs as being critical, but disputed the proposed required level of funding. The appellant challenges by way of judicial review a decision by the respondent, communicated at the latest by a letter dated 3 June 2010, to pay him roughly 85,000 annually. The sum reflected the maximum 61,000 calculated by reference to the Resource Allocation System and an additional amount calculated by reference to the Upper Banding Calculator. The appellant contends that the decision is unlawful either because it was not adequately supported by reasons or because it was irrational [2]. As part of his challenge, the appellant invited the Supreme Court to reconsider the decision of the House of Lords in R v Gloucestershire County Council, Ex parte Barry [1997] AC 584 on the extent to which the resources of a local authority may be taken into account in making decisions under section 2 of the Act. Consequently, a court of seven justices was convened; and four charities and the Secretary of State for Health intervened. At the hearing, however, it became clear that the issue did not arise on the facts since the respondent did not rely on resource constraints to justify its decision. The Court therefore did not hear full argument on Barry, which is not reconsidered in its judgments [4 7; 40 41]. The Supreme Court unanimously dismisses the appeal. Lord Wilson gives the leading judgment, with which the other justices agree. Lady Hale gives a separate concurring judgment. When a local authority is required to consider whether it is necessary, in order to meet the needs of a disabled person, for that authority to make arrangements for the provision of any of the relevant services, then it must ask itself three questions: (i) what are the needs of the disabled person; (ii) in order to meet these needs is it necessary for the authority to make arrangements for the provision of any of the listed services; and (iii) if so, what are the nature and extent of the services for which it is necessary for the local authority to make arrangements? [15]. The guidance produced by the Secretary of State for Health in respect of the duties under section 2 of the Act reflects these stages of inquiry [16 18]. In considering the question of eligibility, at the second stage, the local authority can ask whether the needs of the disabled person can reasonably be met by family or friends, by institutions such as the NHS or charities, or out of the persons own resources [19]. The decision in R v Gloucestershire County Council, Ex parte Barry [1997] AC 584 established that the availability of its resources is also relevant [19]. If the needs of a disabled person are deemed eligible, the duty of a local authority to meet those needs is then absolute, and the Court of Appeal erred in holding otherwise [19]. Under regulations made pursuant to the Health and Social Care Act 2001, if a local authority is satisfied that a disabled persons need for the relevant service can be met by the provision of a direct payment to the disabled person then it can, and in some cases must, with the disabled persons consent, make a direct payment to enable him to purchase the relevant service [22]. In that case, a fourth stage of enquiry arises: (iv) what is the reasonable cost of securing provision of the services for which it is necessary for the authority to make arrangements? In answering that question, it is unduly laborious for a local authority at first to cost each service for every disabled person [24]. Local authorities therefore use resource allocation systems to provide a ball park figure of the appropriate payment, subject to adjustment. The systems generally work by allocating points to eligible needs and then ascribing a cost to each point. A realistic connection between needs and points, and then between points and costs, is crucial [25]. The systems are a lawful tool to provide an approximate indicative sum [26]. Once the indicative sum has been identified, the requisite services should be costed in a reasonable degree of detail to permit a judgement on whether the sum is correct [28]. Adequate reasons can be achieved with reasonable brevity and it will often be sufficient for a local authority to list the required services, and the suggested timings and hourly costs [37]. By reference to its resource allocation system the respondent ascribed points to the appellant in excess of the maximum, which equated to 61,000 [25]. It had developed a second indicative tool, an upper banding calculator, for persons who scored points in excess of the maximum: this brought the figure up to 85,000 [27]. The costing of individual services should then have been carried out, preferably in conjunction with the disabled person, by the making of a support plan [28]. The respondent accepted all of the appellants presenting needs as eligible [29]. It did not accept his mothers representations that the family would not offer support but, unfortunately, it did not expressly say so [29 30]. Had an adjustment been made for a reasonable amount of such support, the indicative figure would have been only c. 46,000 [30]. The jointly instructed social worker uncritically reported the appellants familys wishes, failing to make an expert assessment of the costs [32 33]. The respondent considered the report to be manifestly excessive but, again, failed expressly to say so in proposing the annual sum of c. 85,000 [34]. The respondent broadly explained how this annual sum might be deployed, but not how it had been computed [35]. The appellants solicitors pressed for an explanation and the respondent accepts that it should have provided it earlier than its letter of 3 June 2010 [35]. The challenge to the rationality of the decision fails, since it was entirely rational for the respondent to use its resource allocation system and upper banding calculator and it appears that any flaw in the computation is likely to have been in the appellants favour [38]. The respondent should have made a more detailed presentation of its assessment of the reasonable cost of the necessary services in the appellants case. Nevertheless, in the light of the subsequent amplification of its reasoning during the litigation, it would be a pointless exercise of discretion to quash the decision so that his entitlement might be considered again, perhaps even to his disadvantage [38].
This appeal considers the scope of what is known in public procurement law as the Teckal exemption. It considers whether a local authority was entitled to enter into contracts of insurance with a mutual insurer, established in co operation with other local authorities, without first putting those contracts out to tender in accordance with the Public Contracts Regulations 2006 (the UK Regulations) In 2006 and 2007 various London local authorities co operated and entered arrangements for mutual insurance. The aim was to reduce the cost of insurance premiums, by removing the element of profit built in to an ordinary commercial insurance premium, and to increase the standard of risk management. London Authorities Mutual Limited (LAML) was established in order to provide insurance to participating London authorities and their affiliates. Brent London Borough Council (Brent) was one of ten authorities involved. It became a member of LAML, made a payment in order to capitalise LAML and also provided a guarantee, undertaking to pay further sums to LAML on demand. Once LAML was established, it contracted to provide Brent with insurance. Brent did not conduct a tendering process for the award of the contract of insurance which it entered into with LAML. Risk Management Partners (RMP), a commercial insurer, claimed that there should have been a tendering process complying with the UK Regulations and that, had one been carried out, it might have obtained the insurance which was placed with LAML. RMP claimed damages from Brent. Although that claim has now been settled, the Courts decision will determine other damages claims against various other London authorities and will clarify for the future whether the UK Regulations apply to contracts which a public body proposes to award to an organisation such as LAML. The UK Regulations apply whenever a contracting authority seeks offers in relation to the award of certain public contracts. They give effect in domestic law to an EU Directive, Council Directive 2004/18/EC on the co ordination of procedures for the award of public work contracts, public supply contracts and public service contracts (the Directive). It applies to the award of public contracts. Case law of the European Court of Justice has developed an exception, known as the Teckal exemption. It provides that, in certain circumstances, the award of a contract by one public body to another separate legal person will not fall within the definition of public contract in the Directive, with the result that the Directive will not apply to it and EU law will not require the contract to be put out to tender. The Teckal exemption comprises both a control test and a function test. (1) The local authority must exercise over the person to whom the contract is proposed to be awarded a control which is similar to that which it exercises over its own departments, and (2) that person must carry out the essential part of its activities with the controlling local authority or authorities. This appeal concerned three questions of principle. (1) Does the Teckal exemption apply to the UK Regulations at all? (2) Does the Teckal exemption apply to contracts of insurance? (3) In order for the Teckal exemption to apply, must the control which the contracting authority exercises over the contractor be exercised by that authority individually or is it sufficient that it could be exercised collectively, together with other local authorities? The High Court and the Court of Appeal held that the Teckal exemption did apply to the UK Regulations and that it was available in respect of contracts of insurance. However, they concluded that the control test was not satisfied because LAML was too independent from the local authorities which made up its membership. The claim between RMP and Brent having settled, Harrow was given permission to continue the appeal so as to have the issues of principle decided. The Supreme Court unanimously allows the appeal. It holds that the Teckal exemption does apply to the UK Regulations, that it is available in respect of insurance contracts and that it is sufficient for it to apply that the co operating public authorities together exercise collective control over the party to whom contracts are awarded. The requirements of the Teckal exemption were satisfied. Lord Hope and Lord Rodger both give judgments; Lord Walker, Lord Brown and Lord Dyson agree with both. The Teckal exemption applies to the UK Regulations. Although the definitions in the UK Regulations differ in some respects from the Directive, the purpose of the UK Regulations was to give effect in domestic law to the Directive. There is nothing to indicate that the UK Regulations intended to depart from the European Court of Justices case law: [22] [26], [92]. The Teckal exemption is available in respect of contracts of insurance. It did not matter that insurance was not a service that the local authority could provide for itself. What matters is whether the arrangement satisfies the control test: [27] [30]. Both Lord Hope and Lord Rodger review the ECJ case law to consider the purpose and scope of the Teckal exemption. The Directive is not intended to protect the commercial sector by forcing public authorities to obtain the services which they need on the commercial market. Rather, its purpose is to ensure that, if public authorities do decide to obtain the services which they need from outside bodies, proper procedures are followed to ensure that potential providers have an opportunity to compete for the work. The Directive therefore does not apply where a public authority obtains the product or services from its own resources. Nor, in light of Teckal, does it apply where an authority obtains services from a separate body which is so closely connected with it that the authority should still be regarded as, in substance, obtaining the services in house. There is no reason in principle to distinguish between a situation where the body from which services are obtained exists to serve the interests of a single local authority and where it exists to serve the interests of several local authorities: [67] [73]. The Teckal control test requires that the public authority exercise a power of decisive influence over both the strategic objectives and significant decisions of the other body: [40]. That need not be exercised individually. It is sufficient that the public authority could exercise control over the contractor alone or together with other public authorities: [41], [45], [47] [49], [52], [80] [85]. There must be no private investment in the contractor: [53] & [75]. No injury will be caused to the policy objectives of the Directive if public authorities are allowed to participate in the collective procurement of goods and services, so long as no private interests are involved and they are acting solely in the public interest in the carrying out of their public service tasks: [53]. The argument that individual control is necessary is simply inconsistent with European Court of Justices thinking: [80]. Here, the participating local authorities did exercise collective control over LAML. Meetings of LAMLs board were not validly constituted unless a majority of those present were directors representing a participating member. Participating local authorities each had one vote at general meetings and retained a power to direct the board by special resolution. The fact that a director could not participate in a board meeting which considered a claim by a member which he or she represented was a matter of detail: [57]. No private interests were involved. The function test was also satisfied. LAML existed only in order to serve the insurance needs of its members: [59]
In September 2006, Mr Davidson (the Second Respondent) entered into a trust deed for the benefit of his creditors. It was a protected trust deed to which provisions of the Bankruptcy (Scotland) Act 1985 (1985 Act) applied. Clause 11 of the deed provided for the deeds termination on the occurrence of one of three events, one of which was a final distribution of the estate. Before he entered into the deed, Mr Davidson had been mis sold payment protection insurance (PPI), for which the bank agreed to pay him compensation of around 56,000 in April 2015. Dooneen Ltd (the First Respondent) was Mr Davidsons agent for the purpose of making the claim and Mr Davidson had assigned 30% of any compensation received to Dooneen. The dispute between the parties was about whether Mr Mond (the Appellant), as trustee, or the Respondents were entitled to the compensation. This turned on whether Mr Mond had made a final distribution when he distributed what he called a first and final dividend of 22.41 pence in the pound to the creditors in November 2010 and was discharged accordingly in circumstances where he did not know at the time that Mr Davidson had been mis sold PPI in respect of which he was entitled to compensation. The Lord Ordinary, Lord Jones, found in favour of the Respondents, and that decision was upheld by the Inner House. Mr Mond now appeals to the Supreme Court on the ground that the courts below had misinterpreted final distribution. The Supreme Court unanimously dismisses the appeal with the result that Dooneen and Mr Davidson are entitled to the payment of compensation. Lord Reed, with whom the rest of the Court agrees, delivers the judgment. Mr Mond argued that, regardless of whether or not the trustee knew of all of the assets, a final distribution can only occur when either all assets are distributed or enough assets are distributed so as to pay all creditors in full. This construction is rejected because it would have consequences which the debtor cannot have intended when granting the deed [12]. First, one could never be certain whether any distribution was in fact final so that the deed would potentially be of indeterminate duration. This would be particularly difficult to reconcile with other parts of the deed that vest in the trustee assets and income acquired by the debtor during the currency of the trust deed [13]. Second, it would make it impossible for the debtor or anyone doing business with him to know whether or not the debtor has been finally discharged [14]. Third, it would undermine the purpose of the public Register of Insolvencies, where certificates are registered under the 1985 Act signifying that a final distribution has been made, as it could no longer be relied on as accurate [15]. Lord Reed observes that the outcome of the case is scarcely satisfactory, and notes that the Court raised with the parties the question whether the relevant acts of the trustee might be reduced (set aside) if they were the result of an error as to the extent of the trust estate. Although the parties were invited to make submissions on this, they declined to do so, and it would accordingly not have been appropriate for the Court to consider these matters on this occasion [23].
The appellants company hired out items of machinery. Following an arson attack orchestrated by the appellant on a competitors premises, the police raided the premises of the appellants company and discovered that a significant proportion of the machinery present had been stolen. The appellant was convicted of handling stolen goods, and sentenced to 15 months imprisonment. Following this conviction, there was a hearing pursuant to section 6 of the Proceeds of Crime Act 2002 (POCA). The appellant conceded he had a criminal lifestyle and thus the judge had to decide whether and to what extent he had benefited from this. Not all of the machinery hired out by the appellants company had been stolen. The judge assessed the benefit obtained by the appellant at 2,275,454.40, comprising 1,960,754.40 from general criminal conduct and a further 314,700. Of this, the 1,960,754.40 was calculated on the basis that the proportion of stolen items to the total stock over the relevant period was 38%, and the companys aggregate turnover for the relevant period was 5,159,880 (inclusive of VAT). A confiscation order was made in the sum of 2,275,454.40. The appellant was given six months (later extended to 12 months) to pay, and was ordered to serve ten years (reduced to eight years by the Court of Appeal) in default of payment. This appeal considers whether the judge was right to make the confiscation order on the basis that the VAT had been obtained by the appellant for the purposes of POCA, in circumstances where the appellants company had already accounted for the VAT to HMRC. Before the Court of Appeal, the appellant argued that to include VAT in the amount of the confiscation order would involve an unacceptable degree of double counting. The Crown argued that a benefit is obtained for the purpose of POCA if it has been received by a defendant, even if he has subsequently had to account to a third party for some, or even all, of it. The Court of Appeal accepted the Crowns case. The Supreme Court allows Mr Harveys appeal by a majority of 3:2. Lord Neuberger and Lord Reed give the leading judgment. Lord Mance writes a concurring judgment. Lord Hughes and Lord Toulson each write dissenting judgments. Lord Neuberger and Lord Reed find that the VAT for which a defendant has accounted to HMRC is in a different category from either income or corporation tax, and from expenses incurred in connection with acquiring money or an asset [24]. First, income and corporation tax are computed on a taxpayers overall or aggregate income. They cannot be invoked to reduce the value of the property or money obtained from criminal activity when assessing what has been obtained for the purposes of POCA. VAT liability on the other hand arises on each taxable supply, and can be directly and precisely related to the obtaining of the property in question. In a case where the VAT on a transaction has been accounted for to HMRC, then the Court of Appeals approach would lead to the UK government enjoying double recovery of the VAT: once under POCA and once through the Value Added Tax Act 1994 [25 26]. Secondly, VAT is intended to be neutral in its impact on taxable persons: where money is paid to a defendant as a result of a transaction which is liable to VAT, the defendant is regarded as collecting the VAT element on behalf of HMRC. It is difficult to regard VAT which has been collected and accounted for to HMRC as forming part of the economic advantage derived from criminal offences [27]. Thirdly, it would be particularly harsh, where a defendant has accounted to HMRC for all the VAT for which he is liable, not to allow him credit for that sum, but this would be the effect of his being rendered liable to a confiscation order in respect of the output tax on his transactions. He would then be treated in the same way regardless of whether he had paid the tax or not [28]. Fourthly, the possibility of double recovery has been recognised, and avoided by extra statutory means, in the context of excise duty: HMRC does not seek to recover the excise duty due in respect of smuggled goods where a confiscation order has been made in the same sum [29]. Lord Neuberger and Lord Reed acknowledge that these factors give rise to a powerful argument that when VAT has been accounted for to HMRC, it has not been obtained by the defendant. However, they reject the appellants submission that this conclusion follows from the wording of POCA, because of the principle enunciated in R v Waya [2012] UKSC 51 that property obtained as a result of or in connection with crime remains the defendants benefit whether or not he retains it [30]. Nonetheless, these factors are relevant to consideration of whether the effect of the Crowns interpretation of POCA breaches Article 1 Protocol 1 of the European Convention on Human Rights (A1P1), the right to peaceful enjoyment of possessions [31]. Although a provision effecting double recovery is not forbidden by A1P1, it is at risk of being found disproportionate, given that sums payable pursuant to POCA are intended to be deterrent and not punitive [32]. Waya made clear that where the proceeds of crime are returned to the loser it would be disproportionate under A1P1 to treat such proceeds as the benefit obtained. That situation is similar to the collection of VAT, and the policy underlying the principle is in part that a defendant who makes good a liability to pay or restore should not be worse off than one who does not [33]. In R v Ahmad [2014] UKSC 36 it was held that it would be disproportionate for the same sum to be recovered from two co conspirators in respect of the same property which had been jointly obtained. The observations made in these cases are applicable in relation to VAT which has been accounted for to HMRC [34]. Although the burden may be on the Crown to establish the gross value of the benefit obtained by the defendant, the burden of establishing any sum which should be deducted to reflect the VAT accounted for to HMRC lies on the defendant. There is nothing disproportionate about a judge taking a broad brush approach where the evidence is confusing, unreliable or incomplete [35]. Thus, where VAT has been accounted for to HMRC, it would be disproportionate under A1P1 to make a confiscation order calculated on the basis that the VAT, or a sum equivalent, was obtained by the defendant for the purposes of POCA. The position in relation to VAT for which a defendant is liable but has not accounted to HMRC is left open [36]. Lord Mance agrees with Lord Neuberger and Lord Reed and writes a concurring judgment [38 48]. Lord Hughes would have dismissed the appeal. He states that POCA is not designed to restore money to the state, which in most cases is not the loser, but is designed to deprive the offender [55]. When the defendant was paid a VAT inclusive sum by his customers, he obtained the VAT element, and this is not affected by his obligation to declare it [66]. It is not disproportionate to confiscate the gross proceeds of offending without giving credit for taxes paid to the state [76]. Lord Toulson would also have dismissed the appeal [102]. He finds that it would not be disproportionate under A1P1 to treat the entirety of the companys receipts from its criminal conduct, ignoring associated outgoings such as tax liabilities, as having been obtained by the appellant [125].
The appellants made false representations in their applications for United Kingdom citizenship. The issue in these appeals is whether those misrepresentations made the subsequent grant of citizenship to them a nullity rather than rendering them liable to be deprived of that citizenship under sections 40 and 40A of the British Nationality Act 1981 (BNA). Mr Hysaj is an Albanian citizen. He claimed asylum in the UK in July 1998, falsely stating he was born in Kosovo, was therefore a citizen of the Federal Republic of Yugoslavia (FRY), and that he was under 18. He was accepted as a refugee and given indefinite leave to remain (ILR). Mr Hysaj was granted naturalisation as a British citizen in 2004. Mr Bakijasi was also born in Albania. He sought asylum under a false name and date of birth, gave a false place of birth in Kosovo and falsely claimed FRY nationality. He was eventually granted ILR under the same false details, and then granted naturalisation as British citizen in 2006. When these frauds came to light the Secretary of State, on the basis of binding Court of Appeal case law, decided that in both cases the grant of citizenship was a nullity, so that the appellants were not and had never been British citizens, albeit that they remained on ILR. The appellants challenged the decisions, submitting that the earlier cases were wrongly decided. The High Court and Court of Appeal, which were also bound by this case law, upheld the Secretary of States decisions. Permission to appeal was granted by the Supreme Court on the ground that the appeals gave rise to an arguable point of law of general public importance. Unusually, the Secretary of State applied pursuant to rule 34(2) of the Supreme Court Rules for the appeals to be allowed by consent, supported with reasons. The Supreme Court unanimously allows the appeals by consent. It agrees with the reasons provided by the Secretary of State and holds that misrepresentations in an application for UK citizenship renders the applicant liable to be deprived of that citizenship pursuant to s 40 BNA. Lady Hale gives the only substantive judgment. S 40 BNA makes provision for the Secretary of State to deprive a person of citizenship if satisfied that the grant was obtained by means of fraud, false representation or concealment of a material fact. There is a right of appeal to the First tier Tribunal against most such deprivations in s 40A [7]. The original decision adopting the nullity approach, rather than a deprivation of citizenship, involved the purported grant of British citizenship to someone who was impersonating another real person (R v Secretary of State for the Home Department ex p Mahmood [1981] QB 58). Subsequent cases, including R v Secretary of State for the Home Department ex p Akhtar [1981] QB 46, Bibi v Entry Clearance Officer, Dhaka [2007] EWCA Civ 740 and the present ones, expanded this approach to persons adopting a false identity through which the characteristics needed to obtain citizenship were acquired [8 14]. The Secretary of State considers that the law took a wrong turning after Mahmood, and the nullity approach should only apply in impersonation cases [15]. The subsequent cases were based on the principle that there is a category of fraud as to identity which is so serious that a purported grant of citizenship is of no effect, but had not articulated a clear definition of such fraud. This uncertainty means the law is difficult to apply in practice and also gives rise to a number of illogical and unsatisfactory consequences. The same principle would also appear to nullify the grant of ILR, but the Secretary of State has never contended for this [16 18]. The Supreme Court agrees with this reasoning. It follows that the decisions of the Court of Appeal in Akhtar and Bibi must be overruled and the present appeals allowed by consent [19].
These appeals concern the circumstances in which a prisoner serving a life sentence or an indeterminate sentence of imprisonment for public protection (IPP), who has served the minimum period specified for the purposes of retribution and deterrence (the tariff), and whose further detention is justified only if it is necessary for the protection of the public, should be awarded damages for delay in reviewing the need for further detention following the expiry of the tariff. They are also concerned with the quantum of such damages. Since 1997, legislation has required judges to impose life sentences on a wider range of offenders than was previously the case. In addition, IPPs were introduced in April 2005. It is for the Parole Board of England and Wales (the Board) to decide whether to direct the release of a life or IPP prisoner whose tariff has expired. The prisoners case must first be referred to the Board by the Secretary of State for Justice (the Secretary of State). The increase in the number of life prisoners and the introduction of IPP sentences resulted in an increase in the Boards workload, but its resources were not increased. This resulted in delay in the consideration of post tariff prisoners cases. That delay has implications under the Human Rights Act 1998 (the 1998 Act), which gives effect to Article 5 of the European Convention on Human Rights (the Convention). Article 5(1) requires that detention must throughout its duration remain causally connected to the objectives of the sentencing court. In relation to post tariff prisoners, that objective is the protection of the public. In order to comply with Article 5(4), the Board has to review the necessity for the continued detention of post tariff prisoners speedily upon the expiry of their tariff and at reasonable intervals thereafter. The 1998 Act also provides that the remedies for a violation of a Convention right include damages. Mr Faulkner was sentenced in 2001 to life imprisonment for a second offence involving grievous bodily harm. Mr Sturnham was convicted of manslaughter in 2007 and given an IPP sentence. In each case, there was a delay in the holding of a hearing before the Board after the tariff had expired, due to administrative errors for which the Secretary of State was responsible. Both men were eventually released following Board hearings, but Mr Faulkner was twice recalled to prison in respect of allegations of which he was acquitted, and remains in custody. Each sought judicial review of the failure by the Board and the Secretary of State to conduct a review of his detention speedily, as required by Article 5(4). Mr Faulkner was unsuccessful in the High Court, but the Court of Appeal held that the Secretary of State had breached Article 5(4), that Mr Faulkner would have been released 10 months earlier than he was but for that breach, and that the Secretary of State should therefore pay him 10,000 in damages. In Mr Sturnhams case, the High Court held that there had been a breach of Article 5(4) due to a delay of 6 months, that he had been caused anxiety and distress by the delay, but that there was no prospect that he would have been released any earlier had the hearing taken place speedily. The Secretary of State was ordered to pay him 300, but that award was quashed by the Court of Appeal. In Mr Faulkners case, the Board appeals to the Supreme Court on the ground that the award of damages was excessive. Mr Faulkner cross appeals on the ground that the award was inadequate and that his imprisonment during the period of delay constituted false imprisonment at common law or a violation of Article 5(1). Mr Sturnham seeks permission to appeal against the Court of Appeals decision to quash the award of damages to him. The Supreme Court allows the Boards appeal in Mr Faulkners case, reduces the damages awarded to him to 6,500, and dismisses his cross appeal. The Court grants Mr Sturnham permission to appeal and allows his appeal. Lord Reed gives the lead judgment, with which Lord Neuberger, Lord Mance and Lord Kerr agree. Lord Carnwath delivers a concurring judgment. Mr Faulkners argument that the detention of a life prisoner constitutes false imprisonment if it continues beyond the point at which the prisoner would have been released if a hearing had been held in accordance with Article 5(4) must be rejected. That detention is still authorised by statute, and is therefore lawful until the Board directs release [16, 86]. Nor was Mr Faulkner the victim of a violation of Article 5(1). Such a violation requires exceptional circumstances warranting the conclusion that continued detention has become arbitrary, which were not present in Mr Faulkners case [17 23, 86]. On the question of the award of damages under the 1998 Act, the courts should be guided primarily by the principles applied by the ECtHR, which may be inferred from any clear and consistent practice of that court. The quantum of such awards should broadly reflect the level of awards made by the ECtHR in comparable cases brought by applicants from the UK or other countries with a similar cost of living [39]. The courts should resolve disputed issues of fact in the usual way even if the ECtHR in similar circumstances, due to the nature of its role, would not do so [39, 82]. Where it is established on the balance of probabilities that a violation of Article 5(4) has prolonged the detention of a prisoner past the point at which he would otherwise have been released, damages should ordinarily be awarded. The amount of such damages will be a matter of judgment, reflecting the facts of the case and having regard to guidance from the ECtHR and the national courts in comparable cases [75]. Pecuniary losses should be compensated in full [53, 70]. Though relevant in some circumstances, it will not ordinarily be appropriate to take into account as a mitigating factor that a claimant was recalled to prison following his eventual release [83]. Nor should damages be awarded merely for the loss of a chance of earlier release [82], or adjusted according to the degree of probability of release if the violation of Article 5(4) had not occurred [84]. Appellate courts do not ordinarily interfere with an award of damages simply because they would have awarded a different figure if they had tried the case. However, as the Court is in this case being asked to give guidance on the appropriate level of awards, and having regard to awards made by the ECtHR in other cases and to the fact that the liberty enjoyed by a person released on licence is precarious and conditional, the Court considers that an award of 6500 would adequately compensate Mr Faulkner [87]. Even where it is not established that an earlier hearing would have resulted in earlier release, there is a strong presumption that delay which violated Article 5(4) has caused the prisoner frustration and anxiety. Where such a presumption is not rebutted, an award of damages should be made, though on a modest scale [53, 67 68]. No such award should be made in cases where the frustration and anxiety were insufficiently severe to warrant an award, although that is unlikely to be the case where the delay was of around three months or more [66]. Following that approach, and having regard to ECtHR authorities, the award of 300 to Mr Sturnham was reasonable in his case [97]. Lord Carnwath concurs with the reasoning and conclusions in Lord Reeds judgment, but suggests a more selective approach to ECtHR authorities. He suggests focusing on those cases which explicitly decide points of principle, and eschewing those which are simply assessments of the facts [104 127].
The issue in this appeal is whether, where there has been a transfer of employees to which the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) apply, the new employer is bound by a term of an employees contract of employment which provides that terms and conditions of employment will be in accordance with collective agreements negotiated from time to time. UK courts have previously held that Regulation 5 TUPE renders such a dynamic clause enforceable against the new employer. This appeal considers whether that approach requires to be modified in light of a decision of the European Court of Justice in Werhof v Freeway Traffic Systems GmbH & Co KG (Case C 499/04) [2006] ECR I 2397 (Werhof). Werhof interpreted Article 3(1) of the Directive which TUPE implements in domestic law (Directive 77/187/EEC on the approximation of the laws in the Member States relating to the safeguarding of employees rights in the event of transfers of undertakings, businesses or parts of businesses, as amended (the Directive). The Appellants are former employees of the London Borough of Lewisham (the council) who worked in the councils leisure department until 2002. The council subscribed to the National Joint Council for Local Government Services (the NJC). The Appellants contracts of employment provided that their terms and conditions of employment will be in accordance with the collective agreements negotiated from time to time by the NJC supplemented by agreements reached locally through the councils negotiating committees. In 2002 the part of the councils undertaking in which the Appellants worked was contracted out to CCL Ltd. In 2004, CCL Ltds undertaking was taken over by the Respondent, another private sector employer. TUPE applied to each of these transfers. The employees therefore first became employees of CCL Ltd and then of the Respondent. At the date of the transfer to CCL Ltd, there were collectively agreed terms setting out pay rates from 1 April 2002 to 31 March 2004. Subsequent NJC settlements provided for further pay increases. The Respondent refused to increase the Appellants pay in line with the NJC settlement with effect from 1 April 2006 and 1 April 2007. The Appellants brought claims for unauthorised deduction from wages. These were dismissed by the Employment Tribunal. The Appellants appeal to the Employment Appeal Tribunal was successful, but the Court of Appeal restored the Tribunals decision. It held that Werhof meant that Article 3(1) of the Directive did not bind the transferee to any collective agreement made after the transfer and that Regulation 5 TUPE did not indicate any intention to provide employees with greater protection. The Appellants appealed to the Supreme Court. The Supreme Court unanimously holds that there should be a reference to the Court of Justice of the European Union for a preliminary ruling to establish whether Article 3(1) of the Directive precludes national courts from giving a dynamic interpretation to Regulation 5 of TUPE in the circumstances of this case. Lord Hope gives the judgment, with which the other members of the court agree. Domestic legislation enacted so as to give effect to the UKs EU obligations must be construed so as to conform to those obligations, so far as possible to do so. Two questions arise: (i) whether Regulations 5(1) and 5(2) TUPE were designed to be more generous than Article 3(1) of the Directive, as interpreted in Werhof; (ii) if not, whether it is open to the national court to construe those Regulations more generously because that is not precluded by Article 3(1) of the Directive: [19] [26]. As to the first question, Parliament must be taken to have intended to do no more in enacting Regulations 5(1) and (2) TUPE than implement Article 3(1) of the Directive. Regulations 5(1) & (2) TUPE provided that contracts of employment to which it applied were to have effect after the TUPE transfer as if originally made between the employee and the transferee. Although in some respects TUPE was more generous to employees that the Directive, there was nothing indicating such an intention in Regulations 5(1) & (2). Although it is the 1981 TUPE Regulations which apply to this case, they were replaced by new regulations in 2006, which contained equivalent provisions to Regulations 5(1) & (2). It was not possible to infer from this that Parliament had intended to endorse the interpretation which had been given to Regulation 5 in the existing domestic case law: [28] [30]. As to the second question, it is open to a national court to extend the scope of national legislation implementing a Directive to areas not included within the scope of the Directive, provided that no other provisions of EU law preclude that: [32]. The scope of Article 3 has now been interpreted by the ECJ in Werhof, which was a preliminary reference from Germany. German law provides that collectively agreed rules become part of the employment contract with the content that they possess at the time when the business is transferred and are not updated after the transfer. It therefore adopts a static approach. The ECJ held such an approach was not precluded by Article 3(1) of the Directive: [37] [42] The question in this case is a different one: whether a member state is precluded from extending the protection afforded to employees on transfer, so as to provide dynamic protection, where that would be the consequence of an application of domestic contract law: [44]. It was not possible to infer from Werhof how the ECJ might have answered that question: [45]. First, the Directives aim was to promote approximation, not harmonisation, of law. It was not to affect the right of member states to introduce laws more favourable to employees: [46]. Secondly, in Werhof the ECJ had taken into account the new employers right not to join an association or union, protected by Article 11 of the European Convention on Human Rights. That had been of relevance there because of the way German employment law deals with collective agreements. It was not a concern in this case, because the matter depended entirely on the domestic law of contract: [47]. The question whether Article 3(1) of the Directive precludes national courts from giving a dynamic interpretation to regulation 5 of TUPE in the circumstances of this case should therefore be referred for a preliminary reference to the Court of Justice: [48].
This judgment is one of three being given simultaneously on the liabilities of the United Kingdom government for allegedly tortious acts done by HM Forces in the course of operations overseas or by foreign governments in which UK officials are alleged to have been complicit. This particular judgment deals with allegations that persons in Iraq and Afghanistan were unlawfully detained in breach of article 5 of the European Convention on Human Rights (ECHR) by HM forces engaged in peacekeeping operations in those countries under mandates from the United Nations Security Council. Serdar Mohammed (SM) was captured by British forces in Afghanistan on 7 April 2010. It is the Governments case that his capture took place in the course of a planned operation involving a ten hour firefight, from which SM was seen fleeing, discarding a rocket propelled grenade launcher and ammunition as he went. Intelligence is said to have identified him as a senior Taliban commander. SM was detained in British facilities until 25 July 2010, when he was transferred to the Afghan authorities. His detention can be divided into three periods: (i) the first 96 hours, (ii) 11 April to 4 May 2010, when he was being interrogated, and (iii) 4 May to 25 July, when he was held pending transfer to the Afghan authorities. Abd Ali Hameed Al Waheed was captured by British forces in Basrah, Iraq on 11 February 2007 at his wifes home. The Government contends that weaponry material for explosives were found on the premises. He was held at a British army detention centre for six and a half weeks, and was then released after an internal review had concluded that a successful prosecution would be unlikely. The relationship between article 5 and international law is one of three preliminary issues in Serdar Mohammed. The High Court held that British forces had no power to detain prisoners for any longer than was required to transfer them to the Afghan authorities, and then for no more than 96 hours. Accordingly, it held that the detention of SM breached article 5(1) and 5(4) of the ECHR. The Court of Appeal reached the same conclusion, albeit for different reasons. In Al Waheed, it was common ground before the High Court that, so far as the claim was based on a breach of article 5(1) of the ECHR, the judge and the Court of Appeal would be bound to dismiss it by virtue of the decision of the House of Lords in Al Jedda. The judge granted a certificate for a leapfrog appeal to the Supreme Court. Lord Toulson sat on all aspects of the appeals other than those involving the scope and procedural requirements of articles 5(1)(c) and/or (f), 5(3) and 5(4) of the Convention in relation to the detention of Serdar Mohammed, in relation to which (following Lord Toulsons retirement) Lord Hodge sat on 26 October 2016. By a majority of 7 to 2, the Supreme Court dismisses Mr Al Waheeds appeal, and allows the Governments appeal in Serdar Mohammed in part. The majority holds that British forces had power to take and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention. Lord Sumption (with whom Lady Hale agrees) gives the lead judgment. Lord Wilson gives a concurring judgment. Lord Mance adds a mainly concurring judgment, as does Lord Hughes (with whom Lord Neuberger agrees). On the issues with which he was involved, Lord Toulson agrees with Lord Mance, Lord Wilson and Lord Sumption. So far as he was involved, Lord Hodge agrees with Lord Sumption. Lord Reed (with whom Lord Kerr agrees) gives a dissenting judgment holding that there was authority to detain prisoners for periods exceeding 96 hours only in circumstances falling within the grounds specified in article 5(1) (which would cover the first and third periods of detention, but not the second). The first issue the Court addresses is whether British forces had legal power to detain SM in excess of 96 hours. The possible sources for such a power are customary international law and/or the authority of the UN Security Council [13]. The majority finds it unnecessary to express a concluded view on whether customary international law sanctions the detention of combatants in a non international armed conflict (NIAC) [14, 113, 148, 224]. Lord Reed concludes that no such rule currently exists as a matter of customary international law [275]. However, the majority holds that authority to capture and detain enemy combatants for imperative reasons of security was implicitly conferred by the relevant Security Council resolutions [30, 119, 164, 224]. These were UNSCR 1546 (2004) in Iraq [20]; and UNSCR 1386 (2001) in respect of Afghanistan [28, 119]. The majority (other than Lord Mance) further concludes that individual states participating in the International Security Assistance Force (ISAF) in Afghanistan were not limited by ISAFs policy of restricting detention to 96 hours, so that the United Kingdom was entitled to adopt its own detention policy [38 39]. Lord Mance considers that the resolutions conferred authority to detain on ISAF, not the contributing states [180], but arrives at the same conclusion as the majority regarding the legitimacy of the United Kingdoms detention policy on the ground that ISAF tacitly accepted of the UKs adoption of this policy [39, 188]. The next question is whether it is possible to reconcile these conclusions under public international law with article 5 ECHR. The European Court of Human Rights in Hassan v UK was able to accommodate the six permitted grounds of detention under article 5 with the power recognised under public international law to detain in the course of an international armed conflict (IAC). The majority holds that the same approach applies to a NIAC, where the source of the power to detain is a resolution of the Security Council [60, 134 6, 164, 224]. The six permitted grounds for detention in article 5(1) ECHR were formulated in relation to peacetime conditions and could not be regarded as exhaustive in conditions of armed conflict. Their object was to protect the individual from arbitrariness. This object was achieved if there was a legal basis for detention and the power to detain was not exercisable on grounds which were unduly broad, opaque or discretionary [63, 93, 164 167, 224]. The procedure governing military arrest in Afghanistan was suitably clear and precise to meet the standards of article 5(1) [93, 113, 165 167, 224]. Article 5(1) did not therefore prevent a Convention state from acting under the authority conferred by a Security Council resolution. A majority (Lord Sumption, Lady Hale, Lord Wilson, Lord Hodge, Lord Reed and Lord Kerr) considers that the detention of SM did not fall within any of the six specified grounds in article 5(1), during the second period of his detention. He was not at any time held pending extradition to the Afghan authorities, because transfer to the civil authorities within Afghanistan did not constitute an extradition within article 5(1)(f) [78, 84, 113, 235, 236, 351]. Any period when he was being detained solely for intelligence exploitation purposes could not be justified under article 5(1)(c) [81, 84, 113, 235, 236, 351], or under the relevant Security Council resolution. Lord Mance, Lord Hughes and Lord Neuberger consider that whether SMs detention during any period fell within article 5(1)(f), as modified if necessary under Hassan, should be remitted for trial [202 203, 230]. Lord Mance would also have remitted for trial the question whether article 5(1)(c) justified detention during the second period [202 203]. However, a majority (Lord Sumption, Lady Hale, Lord Wilson, Lord Mance, Lord Hughes, Lord Neuberger and Lord Toulson) holds that there should be remitted for trial issues as to: whether intelligence exploitation was in fact the sole ground for detention during the second period or whether imperative reasons of security were not also a concurrent reason, justifying detention under article 5 read with and modified as necessary under Hassan having regard to the relevant Security Council resolution [89, 113, 191 200 and 223, 224], and whether SMs detention during the third period fell within article 5(1)(c) or was justified by imperative reasons of security under article 5 read with and modified as necessary having regard to the relevant Security Council resolution [83, 94 98, 111, 113, 204, 224, 235]. The question of article 5(3) compatibility must also be left for trial [83, 94 98, 111, 113, 204, 224, 235]. A majority holds that it is unnecessary for the United Kingdom to establish a right of detention under Afghan law in order to rely on article 5 read with and modified as necessary having regard to the relevant Security Council resolution [139, 202, 233 and 343 346]. Under article 5(4), the minimum standard of protection from arbitrariness equates to that imposed by articles 43 and 78 of the Fourth Geneva Convention: an impartial body carrying out initial and regular reviews in accordance with a fair procedure [68, 134, 205 206, 224, 235]. Fairness required that SM be given an effective means of challenging his detention. A majority (Lord Sumption, Lady Hale, Lord Wilson, Lord Hodge, Lord Reed and Lord Kerr) holds that there was a breach of the requirement to provide sufficient guarantees of impartiality and fairness to protect against arbitrariness in two respects: the procedure lacked independence and it failed to provide for the participation of the detainee [104 106, 144]. Lord Mance, Lord Hughes and Lord Neuberger consider that in both respects the matter should, as the Court of Appeal concluded, be remitted for trial in the light of the views they express [212 218, 227] The majority all agree that a finding of breach of the procedural standards required by article 5(4) will not necessarily entitle SM to damages. A different review process might well have led to no more than SM remaining in UK custody or being transferred slightly to Afghan custody. [110, 113, 219 220, 223, 224, 232, 235]. In his dissenting judgment, Lord Reed concludes that the Security Council resolutions cannot be interpreted as authorising detention falling outside article 5(1)(a) to (f) of the ECHR [296]. Moreover, Hassan v UK only operates to modify article 5 where it is necessary to reconcile it with the Third and Fourth Geneva Conventions (i.e. not in the case of a NIAC, to which the Geneva Conventions have only limited application). [315 316]. SMs detention during the second period was incompatible with article 5 as it was not for one of the six specified purposes [351]. In any event, it was for a purpose outside the scope of the authority granted by UNSCR 1890; it does not remain an open question whether it was for imperative reasons of security [352 353].
The Respondent, Lodvik Guraj, pleaded guilty to offences involving the supply of heroin and money laundering and was sentenced in July 2012 to a custodial sentence and forfeiture and deprivation orders. The judge did not make a confiscation order, but postponed the determination of that issue to take place after sentence, as he was entitled to do under s.14 Proceeds of Crime Act (POCA). The judge gave directions setting a procedural timetable for a hearing to be listed in November 2015, for the Respondent to provide certain information, and for the Crown first and then the Respondent to serve statements of case. The timetable slipped badly. The Respondent provided the required information late, the Crown did not serve its statement of case until over a year later, and two hearings were aborted due to the Crowns failure to be ready. There was eventually a properly attended hearing in May 2014, at which the Respondents counsel argued that the procedural requirements under POCA had been breached with the effect that the court no longer had jurisdiction to make a confiscation order. The Respondent argued there had been two procedural breaches. The first was that the judge had made forfeiture and deprivation orders before the confiscation proceedings, in breach of s.15(2) POCA which prohibits the court from dealing with the financial or property aspects of sentence (including deprivation and forfeiture orders) until after any confiscation proceedings have been concluded. The second breach was the Crowns failure to make an application for an extension of the postponement of the confiscation hearing, before the postponement expired by November 2012 (as required by s.14(8)). The judge accepted that there had been serious procedural error, but found that no unfairness had occurred as a result. It could not be Parliaments intention that any procedural error removed the courts jurisdiction to make an order. A confiscation order was made in a sum which had by then been agreed (subject to the jurisdiction point). The Court of Appeal took the opposite view on the jurisdiction point and quashed the confiscation order. The Crown now appeals and seeks the quashed order to be restored. The Supreme Court unanimously allows the Crowns appeal. Lord Hughes gives judgment, with which the rest of the Court agrees. The judges approach was correct. No unfairness had arisen in consequence of the irregularities which occurred, and there was no obstacle to the making of the confiscation order. S.14 allows confiscation proceedings to be postponed until after sentence, for up to two years from conviction. Postponement may be applied for by the parties or may be granted by the court of its own motion. If there is a defect in procedure relating to postponement, as there was here, s.14(11) states that this alone is not sufficient to require a confiscation order made in the defective proceedings to be quashed. However, s.14(12) dis applies s.14(11) where, before the making of a confiscation order, an order has been made which s.15(2) says should not precede a confiscation order. Therefore, where forfeiture and deprivation orders have been made prior to confiscation proceedings, the rule under s.14(11) that the court is not prevented from making confiscation orders solely because there was a defect in the procedure relating to postponement does not apply [9 14]. The issue in this case was whether the dis application of the s.14(11) bar had the consequence that a confiscation order made with a defect in postponement procedure must always be quashed [18]. Preceding the insertion of ss.14(11) and (12), there was some uncertainty as to the legal consequences of procedural errors. This was clarified in R v Soneji [2005] UKHL 49 and R v Knights [2005] UKHL 50, where the House of Lords held that the dominant purpose of POCA was to make confiscation the duty of the court. It would defeat the purpose of the confiscation legislation if orders were treated as bad simply because there had been a failure to comply with procedural provisions laid down for postponement. The correct approach was to question whether the duty to make a confiscation order was removed by procedural errors which caused injustice or unfairness to the defendant. S.14(11) was subsequently introduced with the effect of clarifying on a statutory footing that a procedural error in postponement does not on its own invalidate the confiscation procedure [15 17]. The trial judges interpretation of the operation of ss.14(11) and (12) was correct. The fact that the bar to quashing a confiscation order in certain circumstances is dis applied does not give rise to a requirement to quash in those circumstances. Where s.14(11) applies, no procedural defect relating to postponement can on its own justify quashing. Where s.14(11) does not apply, and there has been a procedural defect relating to postponement, an order may be quashed, or it may not be. Applying the principles in Soneji and Knights, the position is that a procedural defect (not limited to postponement) will have the effect of making it wrong to make a confiscation order if unfairness to the defendant would ensue. If the order would give rise to no unfairness, or to none that cannot be cured, there can be no obstacle to making the order [19 30]. The Court of Appeals interpretation of s.14(12) as prescribing that an order will be invalidated for a procedural error was wrong. This was to approach s.14(11) as if it restored the position to the pre Soneji case law which regarded procedural errors as going to the courts jurisdiction to make a confiscation order. The trial judge was correct to continue to follow the Soneji and Knights approach, whose analysis still holds good [22]. That unfairness has resulted from a procedural error may be inferred in the event of a very long period of inactivity. If the statutory permitted two year postponement period is exceeded without there being exceptional circumstances, it is likely that unfairness will ensue. The present case is one where it has been accepted that the Respondent cannot point to unfairness, injury or injustice resulting from the making of the order after the prescribed timetable. The order was eventually made within the permitted period of two years. As there is no unfairness in this case, the question of curable unfairness does not arise. If it were to arise, a potential unfairness might be cured for example by adjusting a confiscation order, or by quashing a forfeiture order. Each case must depend on its own facts [31 4].
The Respondents were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the decision of this Court in Cadder v HM Advocate [2010] UKSC 43, and they did not have access to legal advice either before or during their police interviews. In the course of their interviews, they each made statements which were later relied on by the Crown at their trials. They were convicted and sentenced to various periods of imprisonment. They appealed, and their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. The Respondents argued, on the basis of Cadder, that the leading of evidence of the statements they made during their police interviews was a breach of their rights under Articles 6(3)(c) and 6(1) of the European Convention on Human Rights, and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence. For Birnie, it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under Article 6(1) and at common law. The Crowns objections to the devolution issue were repelled by the Appeal Court, and the Crown appealed to the Supreme Court. On the question whether the Respondents had waived their right to legal assistance, the Lord Advocates position before the Court was that the important point in these appeals was that raised in the case of Birnie. Unlike the other two Respondents, Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. The outstanding matters before the Court were therefore: (i) Whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies to Judes appeal; (ii) Whether Birnie waived his right of access to a lawyer when he made his unsolicited statement following his police interview; and (iii) Whether the reliance by the Crown upon the appellants admissions in these circumstances deprived him of his right to a fair trial under Article 6(1) of the Convention. The Supreme Court unanimously dismisses the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case. It unanimously dismisses its appeals on the issue as to waiver in regard to the police interviews of Jude and Hodgson. By a majority of 4 1, it allows the appeal on the question whether it was incompatible with Birnies right to a fair trial for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remits that matter for determination by the High Court of Justiciary. Lord Hope gives the leading judgment. Lord Kerr gives a partly dissenting judgment. (1) Time Bar: Section 100(3B) of the Scotland Act 1998, as amended, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of took place. The question is whether that section applies to proceedings brought by way of an appeal under the 1995 Act [6]. A criminal appeal under section 57(2) of the Scotland Act falls plainly into the category of a proceeding that is by virtue of the Scotland Act. The fact that the procedure under which the complaint is made is provided by the 1995 Act is irrelevant as far as this point is concerned, and does not render section 100(3B) inapplicable[13]. The opening subsection of section 100 makes the same distinction as that found in section 7(1) of the Human Rights Act 1998 between bringing proceedings on the basis of Convention rights, and relying on Convention rights in any such proceedings. The wording is not exactly the same in the two Acts, but the assumption is that they have the same effect. The time bar under section 7(5) of the Human Rights Act refers only to proceedings under section (1)(a) and not those under (1)(b) [15]. The time bar in section 100(3B) has the same effect, so it does not apply to proceedings of the kind referred to in section 100(1)(b). The point is that proceedings under that section are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights [16]. An appeal against conviction or sentence is still part of the prosecution process that has been brought by the Lord Advocate [17]. Further, the 1995 Act contains its own system of time limits for the bringing of appeals. It would be very odd if an appeal were subject to two different time limits under two different Acts [18]. (2) Waiver. Birnie was offered rights of access to a solicitor before he made his statement and was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both offers [26]. There is no absolute rule that the accused must have been given legal advice on the question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54 [28]. It was not suggested in the course of argument that an absolute rule requiring reasons for the accuseds decision to waive his right to legal assistance is to be found in the jurisprudence of the Strasbourg court. The only question for this Court is whether the absence of such an inquiry amounted in itself to a breach of a Convention right. It is not for the Supreme Court to say how the law and practice respecting crimes should be developed by the common law in Scotland. The fact that the waiver was made without legal advice and without reasons being requested may be taken into account in the assessment as to whether Birnie understood the right that was being waived. But Strasbourg does not require the Court to hold that it would necessarily be incompatible with Article 6 to rely on statements made to police just because it was not ascertained why the suspect did not want to speak to a lawyer. The Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention compliant system without itself imposing specific requirements on the State. The Supreme Court should be no less careful in the way that it deals with Scottish criminal law and procedure [29]. There is room for argument as to whether Birnies statement was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. The question of overall fairness for the purposes of Article 6(1) must be examined in the light of all the facts and circumstances, and is therefore a matter for determination by the High Court of Justiciary [33]. For Lord Kerr, it is an indispensable prerequisite that there must be some means of ascertaining the reason that the right to legal assistance has been waived [53]. On the available evidence, it has not been established that there was an effective waiver by Birnie of his right to legal assistance [57].
On 6 February 2007, police officers carried out observations on the Appellant from about 0835 hours to about 1200 hours. He was seen leaving his car and entering the block of flats in which he lived, leaving the block carrying a bag and entering a car which then drove off. He was observed leaving various other locations and cars in Glasgow and then, carrying a bag which appeared to be heavy, entering a taxi which was later seen parked outside his brothers home. The police approached the taxi, and the Appellant and his brother were detained. Various searches were carried out and large sums of money were recovered by the police. On 16 December 2010 the Appellant was found guilty on indictment in Glasgow Sheriff Court of money laundering offences [3 4]. At a preliminary stage, the Appellant had lodged a devolution minute. He referred to article 8 of the European Convention on Human Rights which provides that everyone has a right to respect for his private life. He argued that the police had acted unlawfully because they had failed to obtain authorisation to conduct covert surveillance on him and his associates under the Regulation of Investigatory Powers (Scotland) Act 2000 (the 2000 Act). He asked the Court to hold that the surveillance was unlawful and that the fruits of that surveillance were inadmissible as evidence. The Sheriff refused the devolution minute and refused leave to appeal his decision [3 and 5 6]. Following his conviction, the Appellant appealed to the High Court of Justiciary. His first ground of appeal was that the Sheriff should have granted leave to appeal his decision to refuse the devolution minute. The Appellant conceded that the Sheriff was bound by the decision of the Appeal Court in Gilchrist v HM Advocate (which he said the prosecution had relied on when opposing the devolution minute) but argued that it was wrongly decided. The Appellants second ground of appeal was that the trial Sheriff was wrong to reject his no case to answer submission [8]. In the High Court of Justiciary, leave to appeal on both grounds was refused at the first and second sifts. On 2 November 2011 the Appeal Court, having heard counsel for the Appellant and without giving reasons, granted leave to appeal to the Supreme Court [9]. The parties agreed that the issue whether the observations of the police breached the Appellants rights under article 8 arose in the appeal to the Supreme Court. The Appellant maintained that the issue whether the act of leading that evidence was incompatible with the Appellants rights under article 8 and article 6 (to a fair trial) and therefore unlawful under the Scotland Act 1998 also arose, but the Respondent did not accept this [10]. The Supreme Court unanimously dismisses the appeal. There has been no interference with the Appellants rights under articles 8 and 6 of the Convention. The judgment is given by Lord Hope with whom all the other Justices agree. Taking it on its own terms, the devolution minute did not appear to raise a devolution issue at all. The question of whether the police acted in a way that is incompatible with the Appellants Convention rights is not a devolution issue. The only relevant devolution issue would have been whether the act of the Lord Advocate in leading the surveillance evidence would have been incompatible with the Appellants Convention rights. But no mention of the issue whether the Lord Advocate leading such evidence would have breached the Appellants article 6 right was made or appears to have been considered at any stage of the proceedings. There was no determination of the issue in the High Court of Justiciary because the question it raises was not before it. In terms of the Scotland Act 1998, the Supreme Court does not have an original jurisdiction in these matters. Except in regard to devolution issues as defined in the Scotland Act 1998, every order of the High Court of Justiciary is final and conclusive and not subject to review by any court whatsoever [11 13]. The proper course might well have been to dismiss this appeal as incompetent. But, with considerable hesitation, the Court decided that it should hear argument on the issue for three reasons in particular. First, the prosecution did not oppose the Appellants motion for leave to appeal to the Supreme Court. Second, the Appeal Court gave leave to appeal to the Supreme Court. Third, the Appellant was really seeking to re examine the correctness of the decision in the Gilchrist case (which was that surveillance evidence obtained without a valid 2000 Act authorisation led by the Lord Advocate was admissible). However, the Supreme Courts decision to hear the appeal should not be taken as an indication that it is not aware of the limits to its jurisdiction, or of its responsibility to ensure that those limits are respected. Devolution minutes should say what they mean [14]. Any breach of article 8 in obtaining the surveillance evidence in this case was due to acts of the police, not the Lord Advocate. The fact that evidence is irregularly obtained because there is no authorisation under the 2000 Act does not of itself make that evidence inadmissible at common law. Nor does the fact that the evidence is obtained in breach of article 8 necessarily mean that it would be incompatible with article 6 for that evidence to be led at the trial. Nevertheless, the key to the whole argument lies in what one makes of the underlying article 8 issue [15 17]. The Strasbourg Court has not yet considered the situation where a persons movements in a public place are noted down by the police as part of their investigations when they suspect the person of criminal activity. But it could not reasonably be suggested that a police officer who came upon a person who has committed a crime in a public place and simply noted down his observations in his notebook was interfering with the persons article 8 right. In this case, notes of the Appellants movements in public were kept by the police over a period of hours in a covert manner as part of a planned operation. However, there is nothing to suggest that the Appellant could reasonably have had any expectation of privacy. He engaged in his activities in places where he was open to public view by neighbours, by persons in the street or by anyone else who happened to be watching what was going on. He took the risk of being seen and of his movements being noted down. The criminal nature of what he was doing, if that was what it was found to be, was not an aspect of his private life that he was entitled to keep private [20 21]. On the first issue in the appeal, there are no grounds for holding that the actions of the police amounted to an infringement of the Appellants rights under article 8. It is plain that the absence of a reasonable expectation of privacy was the basis for the decision in Gilchrist, which was rightly decided in this respect. On the second issue in the appeal, it follows that there has been no breach of article 6, since the only ground for arguing this was that there had been a breach of article 8 [21 22].
The case concerns whether Zipvit, a trader selling vitamins and minerals by mail order, is entitled when accounting for VAT on its sales to make deductions of input VAT (the tax paid by the trader on goods and services purchased in connection with its business, as opposed to output VAT, which is the tax charged to the consumer by the trader on its goods or services) in respect of the price of postal services supplied to it by Royal Mail. Under Royal Mails terms and conditions, Zipvit was required to pay the commercial price for the supply plus such amount of VAT (if any) as was chargeable. At the time of supply, both Royal Mail and Zipvit understood that the supply was exempt from VAT, so Zipvit was only charged and only paid a sum equal to the commercial price for the supply. Royal Mails invoices treated the supplies as exempt. However, the Court of Justice of the European Union (the CJEU) subsequently held that such a supply of individually negotiated mail services should in fact have been treated as standard rated for VAT. If that had been appreciated at the time of the supplies, Royal Mail would have charged Zipvit VAT and would have accounted for this to HM Revenue and Customs (HMRC). The present proceedings are a test case in respect of supplies of services by Royal Mail where the same mistake was made. Zipvit now claims that under article 168(a) of the Principal VAT Directive (2006/112/EC) (the Directive) it is entitled to deduct as input VAT the VAT due in respect of these supplies or a VAT element deemed by law to be included in the price paid to Royal Mail for each supply. HMRC contend that on the proper interpretation of the Directive: (a) there was no VAT due or paid for the purposes of the Directive; and/or (b) since Zipvit at no point held invoices which showed that VAT was due and its amount, in compliance with article 226(9) and (10) of the Directive, Zipvit is not entitled to recover input tax. Zipvit made claims to HMRC for the deduction of input VAT, which were rejected by HMRC. Zipvit appealed against HMRCs decision to the First tier Tribunal (Tax Chamber), which dismissed the appeal. Zipvit appealed to the Upper Tribunal (Tax Chamber), which dismissed the appeal. The Court of Appeal dismissed Zipvits appeal from the Upper Tribunal. Zipvit now appeals to the Supreme Court. The Supreme Court unanimously decides that the legal position under the Directive is not clear. It is common ground that at this stage in the process of the UKs withdrawal from the EU, in a case involving an issue of EU law which is unclear, the Supreme Court is obliged to refer that issue to the CJEU to obtain its advice on the point. Therefore, the Supreme Court makes an order for a reference and sets out the questions for the CJEU. Lord Briggs and Lord Sales give the judgment, with which all other members of the Court agree. Zipvit appealed on two issues: first, the due or paid issue, and second, the invoice issue. The Court has decided that neither issue can be regarded as acte clair (so obvious as to leave no scope for any reasonable doubt) and that a reference should be made to the CJEU. The due or paid issue arises out of article 168(a) of the Directive, which provides that a trader who is a taxable person has an entitlement to deduct from VAT which he is liable to pay the VAT due or paidin respect of supplies to him of goods or services, carried out or to be carried out by another taxable person. Zipvit contends that the commercial price it paid Royal Mail for the supplies of postal services must be treated as having contained an element of VAT, even though the invoice purported to say that the services were exempt from VAT. Alternatively, even if this embedded element of VAT is not to be regarded as having been paid, it should be regarded as being due [26] [27]. HMRC contend that there is nothing in the Directive which requires or justifies retrospective re writing of the commercial arrangements between Royal Mail and Zipvit. Royal Mail did not issue further invoices to demand payment of VAT, cannot be compelled to issue such further invoices, and has not accounted to HMRC for any VAT in respect of the services. HMRC could not take action to compel Royal Mail to account for any VAT in respect of the supply of services. As the courts below found, if Zipvit were to succeed it would gain an unmerited financial windfall at the expense of the taxpayer [31] [32]. On the invoice issue, Zipvit submits that CJEU case law indicates that there is an important difference between the substantive requirements to be satisfied for a claim for input tax and the formal requirements that apply in relation to such a claim. The approach is strict for the substantive requirements, but departure from the formal requirements is permissible if alternative satisfactory evidence of the VAT which was paid or is due can be produced. Zipvit contends that it has produced alternative satisfactory evidence of the VAT paid, in the form of payment of the embedded VAT [36] [38]. Against this, HMRC submit that the regime in the Directive requires particular importance to be attached to the requirement of the production of an invoice showing that VAT is due and in what amount. A valid claim for the deduction of input tax cannot be made in the absence of a compliant VAT invoice [39] [40]. The Supreme Court refers four questions to the CJEU. The first asks whether, in circumstances like those of Zipvit, the effect of the Directive is that the price actually paid by the trader is to be regarded as the combination of a net chargeable amount plus VAT thereon, thus allowing the trader to claim to deduct input tax under article 168(a) of the Directive in the amount of VAT which was in fact so paid by it in respect of that supply [42(1)]. The second asks whether, in those same circumstances, the trader can claim to deduct input tax under article 168(a) as VAT which was due in respect of that supply [42(2)]. The third asks whether, where a tax authority, the supplier, and the trader misinterpret European VAT legislation and treat a taxable supply as exempt, resulting in a non compliant VAT invoice which stated that no VAT was due, the trader is entitled to claim to deduct input tax under article 168(a) [42(3)]. Finally, in answering the prior three questions, the Court asks whether it is relevant to investigate whether the supplier (Royal Mail) would have a defence to any attempt by the tax authority to issue an assessment requiring it to account for a sum representing VAT in respect of the supply, and whether it is relevant that the trader (Zipvit) knew at the same time as the tax authority and the supplier that the supply was not in fact exempt, and could have offered to pay the VAT due, but omitted to do so [42(4)].
GAFTA Form 49 is the standard form of FOB sale contract of the Grain and Feed Trade Association for goods delivered from central or eastern Europe in bulk or bags. (Under an FOB sale contract, the seller agrees to pay to deliver the goods free on board the purchasers chosen transporter.) This appeal is about the Default Clause in GAFTA 49, which provides in part: DEFAULT In default of fulfilment of contract by either party, the following provisions shall apply: (a) The party other than the defaulter shall, at their discretion have the right, after serving a notice on the defaulter, to sell or purchase, as the case may be, against the defaulter, and such sale or purchase shall establish the default price. (b) If either party be dissatisfied with such default price or if the right at (a) above is not exercised and damages cannot be mutually agreed, then the assessment of damages shall be settled by arbitration. (c) The damages payable shall be based on, but not limited to, the difference between the contract price and either the default price established under (a) above or upon the actual or estimated value of the goods, on the date of default, established under (b) above. Nidera BV, the buyers, entered into a contract with Bunge SA, the sellers, under which they agreed to buy 25,000 tonnes (+/ 10% in buyers option) of Russian milling wheat crop 2010, FOB Novorossiysk (a port in Russia). The shipment period was 23 30 August 2010. The contract incorporated GAFTA 49. On 5 August 2010, Russia introduced a legislative embargo on exports of wheat from its territory, which was to run from 15 August to 31 December 2010. The sellers notified the buyers of the embargo on 9 August 2010 and purported to declare the contract cancelled under GAFTA 49s Prohibition Clause. The buyers maintained that the sellers were not yet entitled to cancel the contract and treated the purported cancellation as a repudiation of the contract, which they accepted on 11 August 2010. The sellers offered to reinstate the contract on the same terms on 12 August 2010, but the buyers refused and began arbitration proceedings under the GAFTA rules. At the arbitration, the parties agreed that the Default Clause applied to anticipatory repudiation, that the buyers had not bought against the sellers pursuant to sub clause (a), that the date of default for the purpose of sub clause (c) was 11 August 2010, and that the difference between the contract and the market price at that date was US$3,062,500. The sellers no longer dispute that they were in breach of contract and the only issue between the parties concerns damages. The first tier panel held that the buyers were not entitled to a substantial damages award, because the embargo was still in place when the time for delivery arrived and so the contract would have been cancelled in any event. The GAFTA Appeal Board accepted that the contract would have been cancelled in any event, but held that the buyers were entitled under sub clause (c) of the Default Clause to a damages award of US$3,062,500, reflecting the difference between the contract price and the market price on the agreed date of default. The sellers appeal was dismissed by both Hamblen J and the Court of Appeal. The Supreme Court unanimously allows the appeal. Lord Sumption gives the leading judgment. Lord Toulson agrees with Lord Sumption but sets out his reasoning in his own words. Lord Neuberger, Lord Mance and Lord Clarke all agree with both Lord Sumption and Lord Toulson. Lord Sumption first addresses the position at common law. The fundamental principle of the common law of damages is the compensatory principle. The cases have addressed two questions relating to the calculation of damages at common law following an anticipatory breach. First, where there is an available market, the prima facie measure of damages is the difference between the contract price and the market price of the goods at the time when they ought to have been delivered, unless the buyer should have mitigated by going into the market and entering into a substituted contract at some earlier stage, in which case damages will be assessed with reference to the market price at that earlier date. Once the relevant market price has been determined, any subsequent change in the market price is irrelevant. Second, as the House of Lords explained in The Golden Victory [2007] 2 AC 353, it will be relevant to take account of contingencies other than a change in the market price if subsequent events known at the time of the judges or arbitrators assessment would have reduced the value of performance, perhaps to nothing, even without the defaulters renunciation. This principle applies to contracts both for the supply of goods or services over a period of time and for one off sales. [12 23] Lord Sumption then considers the effect of the GAFTA 49 Default Clause. Damages clauses are not necessarily intended to be complete codes for the assessment of damages. In this case, the clause applies in default of contractual performance, and to anticipatory breach as well as actual breach. The combined effect of sub clauses (a), (b) and (c) of the Default Clause differs from the common law, first, in that they give the injured party a discretion about whether to go into the market to buy or sell against the defaulter, so that damages are required to be assessed as at the date when the injured party accepted an anticipatory repudiation only if he actually went into the market to fix a price at that date; and, secondly, in that they provide that the relevant comparator is the actual or estimated value of the goods rather than their market price. [24 28] The Default Clause provides a complete code for determining the market price or value of the goods that falls to be compared with the contract price. It does not deal at all with the effect of subsequent events which would have resulted in the original contract not being performed in any event, to which the common law still applies. [29 31] Applying The Golden Victory to this case, the buyers in fact lost nothing and should receive only nominal damages in the sum of US$5. [35 36] Lord Toulson agrees with Lord Sumption and holds that the language of the Default Clause is not sufficiently clear to preclude the application of The Golden Victory. The most reasonable interpretation is that the clause is concerned only with placing a mathematical value on the goods, assuming the contract to be capable of performance, and that it is not intended to oust the application of ordinary common law principles where that assumption is inappropriate. He also rejects the argument that the clause precludes the operation of the common law mitigation of loss principle, but the application of this principle was not the subject of argument before this court. [58 62] Where a contract is discharged by reason of one partys breach, and there exists an available market in which the innocent party could obtain a substitute contract, the innocent partys loss will ordinarily be measured by the extent to which his financial position would be worse off under the substitute contract than under the original contract. Whether the innocent party in fact enters into a substitute contract is a separate matter. The assessment should be made on the facts as known at the date of the assessment, as the House of Lords held in The Golden Victory and consistently with the fundamental compensatory principle. The Golden Victory applies to one off sales. [63 89]
Under section 188 of the Housing Act 1996 (the 1996 Act) local authorities have a duty to secure that accommodation is made available for applicants who are homeless and have priority need. Priority need is defined in section 189(1) of the 1996 Act and includes at paragraph (c) persons who are vulnerable as a result of old age, mental illness or handicap or physical disability or other special reason, or with whom such a person resides or might reasonably be expected to reside. The Appellants applied for accommodation on the basis that they had priority need. The First Appellant has very significant learning difficulties and symptoms of depression and PTSD. He is cared for by his brother. Southwark Borough Council (Southwark) refused his application on the grounds that, if homeless, he would be provided with the necessary support by his brother. The Second Appellant has multiple physical problems as well as psychotic symptoms and suicidal ideation. He was deemed by Southwark not to be in priority need because he would not be at a greater risk of injury or detriment than an ordinary street homeless person due to the ability of his wife and son to fend for the whole household. The Third Appellant claimed to be vulnerable because he had become addicted to heroin while in prison and was in poor physical and mental health. Solihull Metropolitan Borough Council (Solihull) found that he was not in priority need on the basis that he would not be less able to fend for himself than an ordinary homeless person. The First and Third Appellants were unsuccessful in the courts below. The Second Appellant succeeded in the County Court but lost in the Court of Appeal. Three issues arise in the present appeal: (1) Does the assessment of whether an applicant is vulnerable for the purposes of section 189(1)(c) of the 1996 Act involve an exercise in comparability, and, if so, by reference to which group of people is vulnerability to be determined? (2) When assessing vulnerability, is it permissible to take into account the support which would be provided by a family member to an applicant if he were homeless? (3) What effect, if any, does the public sector equality duty under section 149 of the Equality Act 2010 (the 2010 Act) have on the determination of priority need under the 1996 Act in the case of an applicant with a disability or any other protected characteristic? Lord Neuberger (with whom Lord Clarke, Lord Wilson and Lord Hughes agree) dismisses the First Appellants appeal, but Lady Hale would have allowed his appeal. All five Justices allow the Second Appellants appeal and dismiss the Third Appellants appeal. On the first issue in the appeal, vulnerable in section 189(1)(c) connotes that the applicant must be significantly more vulnerable than an ordinary person who happened to be in need of accommodation [55, 59]. The decisions of the Court of Appeal on this issue have all accepted that vulnerability has to be assessed comparatively [48] [50]. This is correct; vulnerable carries a necessary implication of relativity. It can fairly be said that anyone who is homeless is vulnerable. So, it follows that section 189(1)(c) must contemplate homeless people who would be more vulnerable than many others in the same position [51]. Parliament probably did not intend vulnerability to be judged by reference to what a housing officer thought to be the situation of an actual homeless person. Such an approach would be more likely to lead to arbitrary and unpredictable outcomes. The comparator could not be an ordinary homeless person in the area of the relevant authority as this could lead to unacceptable outcomes with vulnerable people being put out on the streets [56]. The 1996 Act does not refer to street homeless as a category or distinguish between the situations which may constitute homelessness; this calls into question the authority making use of the term in assessing their duty to an applicant [42] As to the relevance of support from family members, an applicants vulnerability under section 189(1)(c) has to be assessed by reference to his situation if and when homeless, which involves a contextual and practical assessment of the applicants physical and mental ability when homeless. As such, any services and support that would be available to the applicant if he were homeless must be taken into account [62]. This conclusion is supported by the purpose of the legislation in question. Those who are more vulnerable in practice if they are homeless can be expected to receive priority treatment. It would be contrary to common sense to ignore any aspect of the actual or anticipated factual situation when assessing vulnerability [63]. It does not matter whether the support is provided pursuant to a legal obligation, but housing authorities can only take third party support into account where they are satisfied that it will be provided on a consistent and predictable basis [65]. The primary focus of section 189(1)(c) is on the applicant, not the benefit of the third party and it would place an excessive burden on housing authorities if family support were disregarded. However, the mere fact that support is available does not of itself prevent the applicant from being vulnerable; there must be a case specific analysis of whether the support can obviate the vulnerability [69] [70]. On the third issue in the appeal, the weight and extent of the public sector equality duty are highly fact sensitive and dependent on individual judgment [74]. The authoritys equality duty was complementary to its duty under the 1996 Act. Each stage of the decision must be made with the equality duty well in mind and the officer must focus very sharply on: (i) whether the applicant has a relevant protected characteristic, (ii) its extent, (iii) its likely effect, when taken together with any other features, on the applicant if and when homeless, and (iv) whether the applicant is vulnerable as a result [78]. Lady Hale would have allowed the First Appellants appeal. She concludes that, while any statutory services which will be available to an applicant should be taken into account when assessing his vulnerability, family support should not [93]. It is not consistent with the intention of the statute to take into account help which may be available from other members of the household. Both the vulnerable person and their non vulnerable family member qualify as being in priority need. The 1996 Act permits the non vulnerable family to apply on behalf of both themselves and the vulnerable person. Parliament did not intend applications to be made by a family member who was not looking after the vulnerable person [95]. There is House of Lords authority for this proposition and none for the suggestion that the existence of a carer within the same household can mean that a person who is otherwise obviously vulnerable is not to be treated as such [99].
E challenged JFSs (formerly the Jews Free School) refusal to admit his son, M, to the school. JFS is designated as a Jewish faith school. It is over subscribed and has adopted as its oversubscription policy an approach of giving precedence in admission to those children recognised as Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (the OCR). The OCR only recognises a person as Jewish if: (i) that person is descended in the matrilineal line from a woman whom the OCR would recognise as Jewish; or (ii) he or she has undertaken a qualifying course of Orthodox conversion. E and M are both practising Masorti Jews. E is recognised as Jewish by the OCR but Ms mother is of Italian and Catholic origin and converted to Judaism under the auspices of a non Orthodox synagogue. Her conversion is not recognised by the OCR. Ms application for admission to JFS was therefore rejected as he did not satisfy the OCR requirement of matrilineal descent. E challenged the admissions policy of JFS as directly discriminating against M on grounds of his ethnic origins contrary to section 1(1)(a) of the Race Relations Act 1976 (the 1976 Act). Alternatively, E claimed that the policy was indirectly discriminatory. The High Court rejected both principal claims. The Court of Appeal unanimously reversed the High Court, holding that JFS directly discriminated against M on the ground of his ethnic origins. JFS appealed to the Supreme Court. The United Synagogue also appealed a costs order made against it by the Court of Appeal. The Supreme Court has dismissed the appeal by The Governing Body of JFS. On the direct discrimination issue, the decision was by a majority of five (Lord Phillips, Lady Hale, Lord Mance, Lord Kerr and Lord Clarke) to four (Lord Hope, Lord Rodger, Lord Walker and Lord Brown). The Majority held that JFS had directly discriminated against M on grounds of his ethnic origins. Lords Hope and Walker in the minority would have dismissed the appeal on the ground that JFS had indirectly discriminated against M as it had failed to demonstrate that its policy was proportionate. Lords Rodger and Brown would have allowed JFSs appeal in its entirety. The Supreme Court unanimously allowed in part the United Synagogues appeal on costs. The Majority Judgments The judgments of the Court should not be read as criticising the admissions policy of JFS on moral grounds or suggesting that any party to the case could be considered racist in the commonly understood, pejorative, sense. The simple legal question to be determined by the Court was whether in being denied admission to JFS, M was disadvantaged on grounds of his ethnic origins (or his lack thereof) (paras [9], [54], [124] and [156]). Direct Discrimination General Principles In determining whether there is direct discrimination on grounds of ethnic origins for the purposes of the 1976 Act, the court must determine, as a question of fact, whether the victims ethnic origins are the factual criterion that determined the decision made by the discriminator (paras [13], [16], [20] and [62]). If so, the motive for the discrimination and/or the reason why the discriminator considered the victims ethnic origins significant is irrelevant (paras [20], [22], [62] and [142]). Where the factual criteria upon which discriminatory treatment is based are unclear, unconscious or subject to dispute the court will consider the mental processes of the discriminator in order to infer as a question of fact from the available evidence whether there is discrimination on a prohibited ground (paras [21], [64], [115] and [133]). It is only necessary to consider the mental processes of the discriminator where the factual criteria underpinning the discrimination are unclear (para [114]). To treat an individual less favourably on the ground that he lacks certain prescribed ethnic origins constitutes direct discrimination. There is no logical distinction between such a case and less favourable treatment predicated upon the fact that an individual does possess certain ethnic origins (paras [9] and [68]). Direct discrimination does not require that the discriminator intends to behave in a discriminatory manner or that he realises that he is doing so (para [57]). There is no need for any consideration of mental processes in this case as the factual criterion that determined the refusal to admit M to JFS is clear: the fact that he is not descended in the matrilineal line from a woman recognised by the OCR as Jewish. The subjective state of mind of JFS, the OCR and/or the Chief Rabbi is therefore irrelevant (paras [23], [26], [65], [78], [127], [132], [136], [141] and [147] [148]). The crucial question to be determined is whether this requirement is properly characterised as referring to Ms ethnic origins (paras [27], [55] and [65]). Application in This Case The test applied by JFS focuses upon the ethnicity of the women from whom M is descended. Whether such women were themselves born as Jews or converted in a manner recognised by the OCR, the only basis upon which M would be deemed to satisfy the test for admission to JFS would be that he was descended in the matrilineal line from a woman recognised by the OCR as Jewish (para [41] per Lord Phillips). It must also be noted that while it is possible for women to convert to Judaism in a manner recognised by the OCR and thus confer Orthodox Jewish status upon their offspring, the requirement of undergoing such conversion itself constitutes a significant and onerous burden that is not applicable to those born with the requisite ethnic origins this further illustrates the essentially ethnic nature of the OCRs test (para [42] per Lord Phillips). The test of matrilineal descent adopted by JFS and the OCR is one of ethnic origins. To discriminate against a person on this basis is contrary to the 1976 Act (para [46] per Lord Phillips). The reason that M was denied admission to JFS was because of his mothers ethnic origins, which were not halachically Jewish. She was not descended in the matrilineal line from the original Jewish people. There can be no doubt that the Jewish people are an ethnic group within the meaning of the 1976 Act. While JFS and the OCR would have overlooked this fact if Ms mother had herself undergone an approved course of Orthodox conversion, this could not alter the fundamental nature of the test being applied. If Ms mother herself was of the requisite ethnic origins in her matrilineal line no conversion requirement would be imposed. It could not be said that M was adversely treated because of his religious beliefs. JFS and the OCR were indifferent to these and focussed solely upon whether M satisfied the test of matrilineal descent (paras [66] and [67] per Lady Hale). Direct discrimination on grounds of ethnic origins under the 1976 Act does not only encompass adverse treatment based upon membership of an ethnic group defined in the terms elucidated by the House of Lords in Mandla v Dowell Lee [1983] 2 AC 548. The 1976 Act also prohibits discrimination by reference to ethnic origins in a narrower sense, where reference is made to a persons lineage or descent (paras [80] [84] per Lord Mance). The test applied by JFS and the OCR focuses on genealogical descent from a particular people, enlarged from time to time by the assimilation of converts. Such a test is one that is based upon ethnic origins (para [86] per Lord Mance). This conclusion is buttressed by the underlying policy of the 1976 Act, which is that people must be treated as individuals and not be assumed to be like other members of a group: treating an individual less favourably because of his ancestry ignores his unique characteristics and attributes and fails to respect his autonomy and individuality. The UN Convention on the Rights of the Child requires that in cases involving children the best interests of the child are the primary consideration (para [90] per Lord Mance). The reason for the refusal to admit M to JFS was his lack of the requisite ethnic origins: the absence of a matrilineal connection to Orthodox Judaism (para [112] per Lord Kerr). Ms ethnic origins encompass, amongst other things, his paternal Jewish lineage and his descent from an Italian Roman Catholic mother. In denying M admission on the basis that he lacks a matrilineal Orthodox Jewish antecedent, JFS discriminated against him on grounds of his ethnic origins (paras [121] [122] per Lord Kerr). It might be said that the policy adopted by JFS and the OCR was based on both ethnic grounds and grounds of religion, in that the reason for the application of a test based upon ethnic origins was the conviction that such a criterion was dictated by Jewish religious law. The fact that the rule adopted was of a religious character cannot obscure or alter the fact that the content of the rule itself applies a test of ethnicity (paras [129] [131] per Lord Clarke). The fact that a decision to discriminate on racial grounds is based upon a devout, venerable and sincerely held religious belief or conviction cannot inoculate or excuse such conduct from liability under the 1976 Act (paras [35], [92], [113] and [119] [120]). Further Comments It is not clear that the practice based test adopted by JFS following the Court of Appeals judgment will result in JFS being required to admit children who are not regarded by Jewish by one or more of the established Jewish movements (para [50] per Lord Phillips). It may be arguable that an explicit exemption should be provided from the provisions of the 1976 Act in order to allow Jewish faith schools to grant priority in admissions on the basis of matrilineal descent; if so, formulating such an exemption is unquestionably a matter for Parliament (paras [69] [70] per Lady Hale). Indirect Discrimination As the case is one of impermissible direct discrimination it is unnecessary to address the claim of indirect discrimination (para [51] per Lord Phillips). Direct and indirect discrimination are mutually exclusive; both concepts cannot apply to a single case concurrently. As this case is one of direct discrimination it could not be one of indirect discrimination (para [57] per Lady Hale). Ex hypothesi, if the case was not direct discrimination, then the policy was indirectly discriminatory (para [103]). The policy pursued the legitimate aim of effectuating the obligation imposed by Jewish religious law to educate those regarded by the OCR as Jewish (paras [95] [96]). However, JFS had not, and on the basis of the evidence before the court could not, demonstrate that the measures it adopted, given the gravity of their adverse effect upon individuals such as M, were a proportionate means of pursuing this aim (paras [100] [103], [123] and [154]). The Minority Judgments Direct Discrimination In identifying the ground on which JFS refused to admit M to the school the Court should adopt a subjective approach which takes account of the motive and intention of JFS, the OCR and the Chief Rabbi (para [195] [197] per Lord Hope). In the instant case JFS, the OCR and the Chief Rabbi were subjectively concerned solely with Ms religious status, as determined by Jewish religious law. There is no cause to doubt the Chief Rabbis frankness or good faith on this matter (para [201] per Lord Hope). The availability of conversion demonstrates that the test applied is inherently of a religious rather than racial character (para [203] per Lord Hope). It is inapt to describe the religious dimension of the test being applied by JFS as a mere motive (paras [201] per Lord Hope; [227] per Lord Rodger). The appropriate comparator for M in this case is a child whose mother had converted under Orthodox Jewish auspices. The ground of difference in treatment between M and such a child would be that the latters mother had completed an approved course of Orthodox conversion (paras [229] [230] per Lord Rodger). Indirect Discrimination Lords Hope and Walker Clearly, children who were not of Jewish ethnic origin in the matrilineal line were placed at a disadvantage by JFSs admission policy relative to those who did possess the requisite ethnic origins (para [205]). JFSs policy pursued the legitimate aim of educating those regarded as Jewish by the OCR within an educational environment espousing and practising the tenets of Orthodox Judaism (para [209]). The 1976 Act placed the onus on JFS to demonstrate that in formulating its policy it had carefully considered the adverse effect of its policy on M and other children in his position and balanced this against what was required to give effect to the legitimate aim which it sought to further (para [210]). There is no evidence that JFS considered whether less discriminatory means might be adopted which would not undermine its religious ethos: the failure to consider alternate, potentially less discriminatory, admission policies means that JFS is not entitled to a finding that the means which it has employed are proportionate (paras [212] and [214]). Lords Rodger and Brown The objective pursued by JFSs admission policy educating those children recognised by the OCR as Jewish was irreconcilable with any approach that would give precedence to children not recognised as Jewish by the OCR in preference to children who were so recognised. JFSs policy was therefore a rational way of giving effect to the legitimate aim pursued and could not be said to be disproportionate. (para [233] per Lord Rodger; para [256] per Lord Brown). The United Synagogue Costs Appeal The United Synagogue must pay 20 per cent. of Es costs from the Court of Appeal but not those incurred in the High Court. The 20 per cent. of Es costs in the High Court previously allocated to the United Synagogue must be borne by JFS in addition to the 50 per cent. that it has already been ordered to pay (para [217]).
This appeal concerns the inter relationship between the sentencing provisions of the Criminal Justice Act 1991 (the 1991 Act) and the Criminal Justice Act 2003 (the 2003 Act). Under the 1991 Act it became mandatory for the Secretary of State to release prisoners part way through the period of their sentence. Home Detention Curfew (HDC) was introduced by the Crime and Disorder Act 1998, by which prisoners could be released on licence after they had served a requisite period. The 2003 Act replaced the sentencing regime for sentences over 12 months on 4 April 2005. However, its provisions governing early release for sentences of less than 12 months have never been brought into force. Thus when a prisoner was sentenced to consecutive sentences, including terms both over and under 12 months, it was necessary to have regard to the Criminal Justice Act 2003 (Commencement No 8 and Transitional and Savings Provisions) Order 2005 (the 2005 Order) to determine which scheme should apply. The appellant, Rebecca Noone, was sentenced on 23 May 2007 for five offences to (i) a term of 22 months imprisonment, (ii) three concurrent terms of four months imprisonment to be served consecutively, and (iii) a one month, also to be served consecutively. The policy of the Secretary of State was that her release on HDC should be calculated by treating the longest sentence as subject to the 2003 Act and as commencing first (because it was pronounced first by the sentencing judge), and the shorter sentences as subject to the 1991 Act. This produced an HDC date over three months later than the approach urged by the appellant, which combined all the sentences and took the half way point of the combined term as the conditional release date from which HDC was calculated. The High Court held that the policy of the Secretary of State was unlawful, but on appeal the Court of Appeal held that, although the matter could not be determined by policy, the policy had in fact correctly reflected the position in law. The Supreme Court unanimously allowed the appeal. The substantive judgments were given by Lord Phillips (President) and Lord Mance, with whose approaches the other Justices agreed. Lord Phillips stated that the interpretation of Paragraph 14 of the 2005 Order lay at the heart of the appeal. It raised the question, where sentences of under and over 12 months were ordered to be served consecutively, of how they were to be linked together and how the provisions as to early release on HDC and licence were to operate in relation to each sentence [para 22]. The approach of the Court of Appeal opened the door to the possibility of capricious results, placed a near intolerable burden on the sentencer and did not readily cater for the position where a series of sentences was imposed of which some were over and some were under 12 months (a mixed sentences case) [29]. The words in brackets in Paragraph 14 were drafted too economically to reflect the clear intention that a mixed sentences case was to receive different treatment from sentences of less than 12 months, namely that the 2003 Act should apply to it [para 33]. Consecutive sentences were subject to s 244(3)(d) of the 2003 Act, and it was necessary to refer to s 262(2) to identify the requisite custodial period. Although this did not define custodial period for sentences under 12 months, it was obvious that this was half the sentence that the prisoner would have had to serve before release, had his sentence not been imposed consecutively with an over 12 month sentence. The relevant custodial period was the amalgam of all the individual custodial periods [para 35] and from that eligibility for HDC could be determined [para 36]. Lord Mance observed that the Secretary of States approach meant that the transitional provisions, bringing the 2003 Act into force in many respects, but keeping the 1991 Act in force in some others, achieved a result which Parliament did not intend by either Act [para 60]. He did not agree that the wording of Paragraph 14 compelled it. In his view Paragraph 14 was clearly drafted to be limited to cases where the only sentences in the arena had a term of less than 12 months [para 70]. The draftsman must have overlooked the fact that it left a gap in the definition of the custodial period in a mixed sentences case, but it was clear what was intended to happen (by reference to the continued application of s 33(1)(a) of the 1991 Act to all cases with sentences under 12 months) namely that the provisions of s 263(3) and s 264(2) and (3) should apply [para 71]. Lord Judge deplored the fact that so much intellectual effort, as well as public time and resources, have had to be expended in order to discover a route through the legislative morass to what should be, both for the prisoner herself, and for those responsible for her custody, the prison authorities, the simplest and most certain of questions the prisoners release date [para 87].
The Appellant Mark Roberts and his brother John Roberts were beneficiaries of a will made by their grandmother, Mrs. Alice Roberts. A clause in the will provided that if John Roberts paid all the inheritance tax due on Mrs. Roberts death then a property known as the Lower Hellingtown Farm would pass to him, and another property known as the Coppice would pass to the Appellant. The considerable value of the farm meant that it would be to the advantage of John Roberts if he complied with the clause. Upon the death of Mrs Roberts on 27 July 1995, John Roberts was granted the right to administer the estate in the place of Mrs Roberts executors, who had decided not to take up office. In order to obtain his position as administrator, John Roberts paid some of the inheritance tax due on the estate, but not all of it. In July 1996, John Roberts, as administrator, transferred ownership of Lower Hellingtown Farm to himself as beneficiary and in 1997 the property was sold. The majority of the proceeds of sale were paid to John Roberts, the remainder being used to discharge some of the estates liabilities. Two firms of solicitors advised John Roberts. The First Respondent, Gill & Co, advised John Roberts on the transfer of the property and the Second Respondent, Whitehead Vizard, advised him on the sale of the farm. On 30 October 2000, John Roberts was replaced as administrator by the Appellants solicitor. In a claim brought on 27 November 2002, the Appellant brought proceedings against the First and Second Respondents for negligence, alleging broadly that they had assisted, in breach of the provisions in the will, in the transfer and sale of the property without John Roberts having paid all the inheritance tax due. The claim was, however, framed in such a way as to allege that the duty of care owed by the firms of solicitors was owed to the Appellant personally. The correct legal position (which was not disputed by any of the parties on appeal), was that a firm of solicitors advising a person administering an estate does not owe a duty of care to the beneficiaries of that estate personally; rather the duty of care is owed to the estate of the dead person. Normally the proper person to bring any claim for negligence, therefore, would be the person administering the estate. A beneficiary of a will may bring a claim on behalf of the estate, but only where special circumstances exist. On 25 August 2006, the Appellant applied to amend his claim so as to continue it both in his own personal capacity and on behalf of the estate. The First and Second Respondents resisted the application on the grounds (a) that the amendment was barred as being out of time under section 35 of the Limitation Act 1980 (the Act) and rule 19.5 of the Civil Procedure Rules (the CPR), and (b) that there were no special circumstances which entitled the Appellant, as a beneficiary, to continue the claim on behalf of the estate. The High Court refused the application, holding that there were no special circumstances. The Court of Appeal held by a majority that there were special circumstances but that the amendment was time barred. The Appellant appealed. The Supreme Court unanimously dismissed the appeal. Lord Collins gave the leading judgment, dismissing the appeal on the basis that the amendment was time barred. Lords Rodger and Walker agreed with the entirety of Lord Collins judgment. Lords Hope and Clarke declined to decide the case on the grounds that the amendment was time barred but nonetheless ruled in favour of the First and Second Respondents on the ground that there were no special circumstances which entitled the Appellant to carry on the claim on behalf of the estate. The main question in relation to ground (a) was whether, in order to be able to carry on his claim, the Appellant would need not only to alter the claim so that he was suing on behalf of the estate, but also to add the administrator as a defendant. If he did have to add the administrator, a further question arose: did he have to add him at the time at which he altered his claim, or could he do so later? [para 44]. Rule 19.5 of the CPR stated that a new party could be added after the limitation period only where to do so was necessary for the determination of the original litigation. The addition of the administrator was clearly not necessary for determining the Appellants personal claim: there was no possible basis for any suggestion that the administrator would be a proper or necessary party [para 43]. If the Appellant was able to make the application to change the capacity in which he sued first, that would then enable him to subsequently add the administrator as a party, as it would then be necessary for the determination of the proceedings brought on behalf of the estate for the administrator to be joined [para 44]. The Appellant therefore needed to be able to demonstrate either that the administrator did not need to be added at all, or that he could be added after the Appellant had successfully altered the claim. Neither was possible. The administrator needed to be added at the outset of the proceedings [paras 63, 71] and it would be contrary to principle for the court to grant permission to alter the claim first before considering the addition of the administrator [para 71]. The appeal would accordingly be dismissed on ground (a) [paras 77, 86, 95]. Although ground (b) did not directly arise for decision given the conclusion on ground (a), there were no special circumstances that would entitle the Appellant to carry on a claim on behalf of the estate. The judge had a wide latitude in evaluating whether there were special circumstances, had taken all the relevant circumstances into account, and had conducted the enquiry in a way with which an appellate court should not have interfered [para 76]. Lords Hope and Clarke, in the minority on ground (a), disagreed that the rule that the administrator must be joined was quite as absolute as Lord Collins suggested [paras 79, 115]. The rule could be departed from if it was necessary to avoid injustice [paras 84, 116]. While on the facts of the case it was difficult to justify a departure from the rule [para 84], Lords Hope and Clarke both preferred to decide the case on the basis that there were no special circumstances [paras 78, 114].
Mr McDonald (the respondent) worked as a miner for British Coal. He joined the British Coal Staff Superannuation Scheme on 11 December 1978 and began contributing to it. He married Mrs McDonald (the appellant) on 22 March 1985. Shortly afterwards, he retired early on grounds of ill health and exercised his right to receive a pension income before his normal retiring age. As a result, between 11 December 1978 and 10 August 1985 Mr McDonald was a member of and contributor to the scheme; since then he has been a member in receipt of income benefits under the scheme. Mrs McDonald seeks a pensions sharing order under section 8(1)(baa) of the Family Law (Scotland) Act 1985 (the 1985 Act) on her divorce from Mr McDonald on the basis that his pension forms part of the matrimonial property which is taken into account in fixing financial provision. This appeal raises questions of statutory interpretation both in relation to the 1985 Act and The Divorce etc. (Pensions) (Scotland) Regulations 2000 (the 2000 Regulations), which were made under section 10(8) of the 1985 Act as amended. Section 10(5) of the 1985 Act treats as matrimonial property the proportion of any rights or interests of either personin any benefits under a pension arrangement which is referable to the period [during the marriage but before the relevant date]. The relevant date is the final date of separation, 25 September 2010 being the relevant date in the present case when the parties ceased to cohabit. The 2000 Regulations, which apply to occupational pension schemes and personal pension schemes of all kinds, provide for the valuation of a persons rights or interests in a pension arrangement for the purposes of section 10(5) by reference to what is known as the cash equivalent transfer value. Regulation 4 of the 2000 Regulations contains the relevant formula: A x B/C where A is the value of these rights or interests in any benefits under the pension arrangement which is calculated, as at the relevant date, in accordance with paragraph (2) of regulation 3 above; and B is the period of C which falls within the period of the marriage of the parties before the relevant date and, if there is no such period, the amount shall be zero; and C is the period of the membership of that party in the pension arrangement before the relevant date The dispute between the parties relates to that formula. The words which fall to be interpreted are the words in the definition of factor C, namely the period of membership of that party in the pension arrangement. Mr McDonald argues that the court should apportion the value of his pension rights by reference only to the period in which he was an active member of the scheme, that is the period during which he was making contributions to the scheme. On that basis, the value of his interest in the pension benefits which is matrimonial property would be 10,002. Mrs McDonald argues that the cash equivalent transfer value should be apportioned by reference to the period of Mr Macdonalds membership of the scheme, both when in pensionable employment and also when drawing a pension, that value being 138,534. An Extra Division of the Inner House dismissed Mrs McDonalds appeal. The majority based their reasoning on the general rule found in section 10(4) of the 1985 Act, which states matrimonial property is confined to assets acquired during the marriage but before the relevant date. They also relied on the formula in the 2000 Regulations. The Supreme Court unanimously allows Mrs McDonalds appeal. Lord Hodge gives the judgment, with which the other Justices agree. The period of membership in regulation 4 of the 2000 Regulations refers to the period of the persons membership of the pension arrangement, whether or not contributions are being made in that period [31]. There are four reasons why membership should not be confined to active membership of pension scheme while the member was contributing to it [25]. First, interpreting regulation 4 as confined in such a way involves adding words which are not there. The person who drafted the 2000 Regulations was clearly aware of the different categories of membership, as can be observed from the differentiation between categories of membership in regulation 3, and chose not to differentiate in regulation 4 between classes of membership [26]. Secondly, the 2000 Regulations apply to both occupational pension schemes and personal pension schemes. The definition of active membership in section 124(1) of the Pensions Act 1995 makes no sense in relation to personal pension schemes. It must be assumed that Parliament intended the Regulations to operate sensibly in respect of differing pension schemes. Further, it would prove difficult to ascertain the point at which a party who has made occasional contributions to a personal pension scheme had chosen to cease to make contributions [27]. Thirdly, the reading of the word active or contributing into regulation 4 cannot be supported by referring to the focus in section 10(4) of the 1985 Act to the acquisition by the parties of assets during the marriage but before the relevant date. Section 10(5) of the 1985 Act deals specifically with pensions, and the opening words of section 10(4), which defines matrimonial property, state that the definition provided in section 10(4) is subject to subsection (5) below. Parliament chose to deal with pensions differently by making a separate provision for them in section 10(5). It follows from the creation of that separate provision that the definition in section 10(4) should not be considered to apply to pensions and, therefore, the majority of the Extra Division of the Inner House erred in its reliance on it. Fourthly, it is not persuasive that membership in regulation 4 must mean active membership in order to give meaning to the statement that factor B can be zero. If the person drafting the wording of factors B and C in regulation 4 intended to confine membership in such a way that would be remarkably indirect. There is no hint of such an intention in the words of the Regulations. Further, confining the period of membership to the period when contributions were made and apportioning the value of the rights or interests in the benefits by reference to time, as section 10(5) requires, may often create an apportionment of the rights of interests in benefits in personal pension schemes which bears no relationship to the relative value of the rights acquired before and during the marriage [30]. This interpretation does not mean that the value of an interest in a pension must be shared equally. Section 9(1) of the 1985 Act contains other principles which inform the courts decision making and introduces flexibility into the award of financial provision. Further flexibility is introduced by the recognition in section 10(1) that there may be special circumstances for departing from the equal sharing of matrimonial property [13, 32].
In 1999 the Inland Revenue [now known as Her Majestys Revenue and Customs, HMRC] published a booklet known as IR20 and entitled Residents and Non Residents Liability to tax in the United Kingdom, which offered general guidance on the word residence and the phrase ordinary residence for the purposes of an individuals liability for UK income and capital gains tax. IR20 remained operative until 2009. The Appellants contend that, on its proper construction, IR20 contained a more benevolent interpretation of the circumstances in which an individual becomes non resident and not ordinarily resident in the UK than did the ordinary law; alternatively that prior to 2005 it was the settled practice of HMRC to adopt such a benevolent interpretation of IR20. Either the construction or the practice gave rise (so they say) to a legitimate expectation that the benevolent interpretation would be applied to determinations of their status for tax purposes and consequently HMRC should not have determined that, during the years relevant to them, they were resident or ordinarily resident in the UK. The First Appellants, Mr Davies and Mr James, contend that prior to 6 April 2001 they left the UK for the settled purpose of establishing and working full time for a Belgian company. Although their wives and Mr Davies daughters remained resident in the UK and although they returned frequently to the UK, albeit for short periods, they contend that they are entitled to be treated as non resident and not ordinarily resident in 2001 2002 by reference to paragraph 2.9 of IR20 since they had gone abroad for a settled purpose and had remained abroad for at least a whole tax year. The situation of the Second Appellant, Mr Gaines Cooper, is different from that of the First Appellants in that it has already been conclusively determined, by reference to the ordinary law, that he was resident and ordinary resident in the UK in the years relevant to him. He contends, however, that his status should instead be determined by reference to paragraphs 2.8 and 2.9 of IR20 or to the alleged settled practice and that, on either basis, he was not resident in the UK from 1993 to 2004 nor ordinarily resident here from 1992 to 2004. The High Court refused the Appellants permission to apply for judicial review of the determinations by HMRC that they were resident and ordinarily resident in the UK in the relevant years. The Court of Appeal granted them permission but dismissed their substantive applications. The Appellants appeal to the Supreme Court. The Supreme Court, by a 4 1 majority, dismisses the two appeals on the grounds that the proper construction of IR20 does not support the Appellants contentions and that there is insufficient evidence of any settled practice on the part of the HMRC by way of departure from the IR20 guidance. Lord Wilson gives the leading judgment; Lords Hope, Walker and Clarke give short concurring judgments. Lord Mance gives a dissenting judgment. An individuals status as being resident and ordinarily resident in the UK largely determines his liability for UK income tax and capital gains tax. In law an individual who has been resident in the UK ceases to be so resident only if he ceases to have a settled or usual abode in the UK per Levene v Inland Revenue Comrs [1928] AC 217 [13 Section 334 of the Income and Corporation Taxes Act 1988 (now replaced) also provided that an individual would nevertheless be deemed to have remained resident in the UK if he had left the UK for the purpose only of occasional residence abroad [15 17]. At law, an individual needs to effect a distinct break in the pattern of his life in the UK in order to become non resident per Reed v Clark [1986] Ch 1 [18 19]; this mandates a multifactorial evaluation of his circumstances [20]. But an individuals pursuit of full time employment abroad is likely to be sufficient to cause him to cease to be a UK resident and not to be deemed under the statute still to be a UK resident [21]. HMRC issued guidance on residence and ordinary residence in IR20. HMRC accepts that it is bound by whatever might be the proper construction of the guidance and that the guidance gave rise to a legitimate expectation that it would appraise any individuals case by reference to such guidance even if it failed to reflect the ordinary law [27]. The First Appellants contend that HMRC represented in IR20 that non residence was achieved if an individual left the UK to take up full time employment abroad, or left the UK permanently or for at least three years, or went abroad for a settled purpose and remained abroad for at least a whole tax year, provided in each case that any visits to the UK totalled less than six months in any one year and averaged less than 91 days each year [the day count proviso] [30]. The Second Appellant contends that HMRC thereby represented that it was sufficient for an individual to live abroad for at least three years and to satisfy the day count proviso, thus eliminating any need for consideration of whether he had effected a distinct break in the pattern of his life in the UK [31]. The majority holds that the proper construction of IR20, when read as a whole, does not support the Appellants contentions [45, 64]. Paragraph 2.1 indicated that an individuals claim to non residence would generate consideration of various aspects of his life with a view to the identification of its usual location [35]. The heading to paragraphs 2.7 to 2.9 namely Leaving the UK permanently or indefinitely required consideration of the quality of his absence from the UK [37]. Paragraph 2.9, which stated that if an individual had gone abroad for a settled purpose, he would be treated as not resident and not ordinarily resident if his absence from the UK had covered at least a whole tax year and he had met the day count proviso, could not be construed as a freestanding route to non residence since there was an express link to paragraph 2.8, which required an individual to leave indefinitely [41]. Although its exposition of how to achieve non residence should have been much clearer, IR20, taken as a whole, informed the ordinarily sophisticated taxpayer that he had to leave the UK permanently, indefinitely or for full time employment; had to do more than to take up residence abroad; and had to relinquish his usual residence in the UK. It also informed him that any subsequent returns to the UK had to be no more than visits and that any property retained in the UK by him for his use had to be used for the purpose only of such visits rather than as a place of residence [45]. He will have concluded that such requirements in principle demanded, and might well in practice generate, a multifactorial evaluation of his circumstances [45, 64] and, in summary, that he had to make a distinct break [45]. Alternatively, IR20 was so unclear as to communicate nothing to which legal effect might be given [47]. The majority holds that there was insufficient evidence that HMRC had departed from IR20 as a matter of settled practice [58]. Such a contention requires evidence that the practice was so unambiguous, so widespread, so well established and so well recognised as to amount to a specific commitment of treatment in accordance with it [49] but the Appellants evidence to this effect was far too thin and equivocal [58]. Lord Mance, dissenting, holds that the references to going abroad permanently or living outside the UK for three years or more in paragraphs 2.7 2.8 referred to the taxpayers intention regarding the duration of his absence rather than the quality of any absence or the nature of any return visits or continuing UK connections [89]. Paragraph 2.9 was designed to assist taxpayers who never intended to leave permanently or indefinitely, but went abroad for a settled purpose to engage in an overseas activity for an extended period of time of lesser duration [89]; or where the taxpayer could subsequently show he had acquired an intention to leave the UK permanently or that his actual absence covered three years from departure [90]. It would be remarkable if there were a requirement for a distinct break from life in the UK when no such requirement was clearly expressed [93] and other factors, including the day count proviso, militated against such a requirement [95; 96].
The appellant, an Algerian national, entered the United Kingdom in 1996 and was refused asylum. He married a French national in 1997. He was granted a residence permit, and had acquired a right of permanent residence by February 2003. He had two children with his wife but they were estranged by July 2004 and she returned to France in late 2005. By the end of January 2012, the Appellant had acquired 28 criminal convictions for 48 offences, including one 23 month sentence. The Home Secretary unsuccessfully attempted to deport him for that reason in January 2007. But he continued to offend, and was sentenced to 20 weeks imprisonment for an offence of theft on 25 January 2012. On 3 April 2012, just as the appellant was due to be released from custody for that offence, the Secretary of State served him with notice of her intention to make a deportation order against him under the Immigration (European Economic Area) Regulations 2006, on grounds that he would pose a genuine, present and sufficiently serious threat to the interests of public policy if he remained. He was detained from 3 April 2012 to 6 September 2012 (on bail from 6 June) under regulation 24(1) and Schedule 3 of the Immigration Act 1971 pending a decision being made on whether to deport him. He was served with a fresh Notice to that effect on 7 September 2012, and was again detained from 7 September 2012 until 2 January 2013. The appellant contended that his detention pending removal was unlawful, and sought judicial review. He argued that his detention contravened article 27(1) of the Citizens Directive (2004/38/EC) and that regulation 24(1) was incompatible with European law and unlawful because it discriminated against him on the basis of nationality without lawful justification contrary to Article 18 TFEU (there being no equivalent provision for pre decision detention in relation to family members of British nationals or non EEA nationals). The Upper Tribunal and the Court of Appeal dismissed his claim and appeal respectively. Before the Supreme Court, the appellant raised four essential points of challenge, namely that (i) the power to detain under regulation 24(1) was discriminatory without lawful justification, (ii) the power was unnecessary and disproportionate, (iii) the absence of a time limit for detention infringed the Hardial Singh principle and (iv) regulations 21 and 24 failed to accurately transpose the safeguards in articles 27 and/or 28 of the Directive. The Supreme Court unanimously dismisses Mr Nouazlis appeal, thereby holding that the appellants pre decision detention was not unlawful. It further declines to make a preliminary reference to the CJEU. Lord Clarke gives the judgment, and Lord Carnwath writes a concurring judgment. The legal framework for detention pending a decision to deport comprises Articles 27 and 28 of the Citizens Directive, as transposed by the EEA Regulations 2006. EEA Nationals or their family members exercising EU rights benefit from powerful protections against their expulsion from the UK, and can only be removed if certain limited circumstances apply, including where there are grounds of public policy, public security or public health [30, 36]. The power to detain under regulation 24(1) does not discriminate without lawful justification against EEA nationals and their family members. The general principle is that Article 18 TFEU is only concerned with the way in which EU citizens are treated in member states other than their states of nationality, and not the way in which member states treat nationals of other countries residing within their territories see the decision of the European Court of Justice in Vatsouras and Koupstantze v Arbeitsgemainschaft (AGRE) Nurnnerg (Joined Cases C 22/08, C 23/08) [2009] ECR I 4585. Third country nationals are not appropriate comparators for testing discrimination: such discrimination is simply a function of the limited scope of the EU legal order, into which third country nationals do not fall [39 49]. Nor is there discrimination between EU nationals and third country nationals contrary to article 21(1) of the EU Charter of Fundamental Rights [50 51, 61, 104]. The appellants new way of putting this argument was that discrimination occurs between British nationals and EEA nationals (exercising treaty rights) who each have third country spouses, since the spouse of the EEA national who is liable to be detained might be hypothetically deterred from exercising their own free movement rights the principle in Surinder Singh (R v Immigration Appeal Tribunal Ex p Secretary of State for the Home Department (Case C370/90) [1992] 3 All ER 798). But this argument also fails, since there is no basis for holding that the actual or hypothetical rights of this appellants spouse, who was long since estranged, would be so affected in this case [52 60, 104] As to proportionality, it is not in dispute that regulation 24(1) must be applied proportionately, but it was not argued that it was applied disproportionately in this case [62]. In this case, the absence of a specified time limit for detention does not infringe the principles in R v Governor of Durham Prison, Ex P Hardial Singh [1984] 1 WLR 704. That approach is fact sensitive, and the clear statutory framework here provides sufficient judicial scrutiny. The Hardial Singh approach, moreover, is entirely consistent with European law [63 78, 105]. Finally, regulations 21 and 24 do not fail accurately to transpose the safeguards in articles 27 and 28 of the Directive and are compliant with it [80 84, 106]. The recent CJEU decision in JN v Staatssecretaris van Veiligheid en Justitie (Case C 601/15), brought to the Courts attention in written submissions after the conclusion of the hearing, concerns a different Directive that is not binding on the United Kingdom. It also materially differs from the Citizens Directive because it contains an express freestanding power of detention for applicants for international protection, and not detention pending a deportation decision. It does not affect the disposal of this appeal [88 96]. Lord Carnwath writes a concurring judgment, setting out the appellants four overall challenges and agreeing with Lord Clarke that they should be dismissed [97 107].
On 18 January 2010, Dundee Council granted planning permission for the construction of an Asda superstore on a site at Myrekirk Road, Dundee. The Appellants operate a supermarket at a site on South Road, Dundee, some 800m from the proposed Asda site. Scottish Executive policy guidance states that, subject to material considerations indicating otherwise, proposed sites should be considered in the following descending order of preference: (a) town centre, (b) edge of town, (c) other commercial centres identified in the development plan and (d) out of centre locations that can be accessed by various transport modes (the sequential test). Effect is given to the sequential test by the policies set out in the statutory development plan, comprising the structure plan and the local plan. In considering Asdas application, the Council noted that the proposed site was out of town and fell therefore in the least desirable category. There was an available site at Methven Road in the Lochee district of Dundee, but the Council discounted it as being too small for the proposed store. There was no other available site within categories (a), (b) or (c) that would have been suitable. The Council accepted that the proposal failed to comply with the sequential test, but given that (i) it did not undermine the core land use strategies of the development plan; and (ii) it had a number of other planning, economic and social benefits, permission was granted. Tesco applied for judicial review of the Councils decision arguing that it had improperly interpreted and applied the development plan and that it had failed to consider its own policy in respect of the Lochee district. The petition was dismissed by the Lord Ordinary and a reclaiming motion against his interlocutor was refused by the Inner House. Tesco now appeals to this court. The Supreme Court dismisses the appeal. The lead judgment is given by Lord Reed, with whom the other justices agree. Lord Hope adds a brief concurring judgment. The Appellants contended that the Respondents had misinterpreted a criterion in one of the policies set out in the structure plan, and its equivalent in the local plan. The requirement in the policy reads as follows: In keeping with the sequential approach to site selection for new retail developments, proposals for new or expanded out of centre retail developments in excess of 1000 sq m gross will only be acceptable where it can be established that: no suitable site is available, in the first instance, within and thereafter on the edge of city, town or district centres [] [13]. The Appellants submitted that if there was a dispute about the meaning of a policy in the development plan it was for the court to determine what the words were capable of meaning. If the planning authority attached a meaning to the words which they were not properly capable of bearing, then it made an error of law, and had failed properly to understand the policy [13]. In the present case, the Respondents Director had interpreted suitable as meaning suitable for the development proposed by the applicant. But suitable meant suitable for meeting identified deficiencies in retail provision in the area. As no such deficiency had been identified, it was inappropriate to undertake the sequential approach and the Respondents had proceeded on an erroneous basis. They had failed to identify correctly the extent of the conflict between the proposal and the development plan and their assessment of whether other material considerations justified a departure from the plan was inherently flawed [13]. They had compounded their error by treating the proposed development as definitive when assessing whether a suitable site was available [14]. In response, the Respondents submitted that it was for the planning authority to interpret the relevant policy, exercising its planning judgment. The planning authority would only make an error of law if it attached a meaning to the words of the policy document which they were not capable of bearing. In the present case, the relevant policies required all the specified criteria to be satisfied. The Respondents had considered that the proposal failed to accord with the second and third criteria. In those circumstances, they had correctly concluded that the proposal was contrary to the policies in question. [15]. So far as concerned the assessment of suitable sites, Asdas retail statement had reflected a degree of flexibility: it considered smaller sites and sites which could accommodate only food retailing, whereas its application was also for non food retailing [16]. The Supreme Court considers that, in this area of public administration as in others, policy statements should be interpreted objectively in accordance with the language used, read as always in its proper context. That is not to say that such statements should be construed as if they were statutory or contractual provisions. Many of the provisions of development plans are framed in language whose application to a given set of facts requires the exercise of judgment. Such matters fall within the jurisdiction of planning authorities, and their exercise of their judgment can only be challenged on the ground that it is irrational or perverse. Nevertheless, planning authorities do not live in the world of Humpty Dumpty: they cannot make the development plan mean whatever they would like it to mean [18 19, 35]. In the present case, the question what the word suitable means cannot be answered by the exercise of planning judgment: it is a logically prior question as to the issue to which planning judgment requires to be directed [21]. Moreover, where, as here, it is concluded that the proposal is not in accordance with the development plan, it is necessary to understand the nature and extent of the departure from the plan which the grant of consent would involve in order to consider on a proper basis whether such a departure is justified by other material considerations [22]. The Supreme Court considers that the Respondents were correct to proceed on the basis that the word suitable meant suitable for the development proposed by the applicant, subject to the qualification that flexibility and realism must be shown by developers [24, 28, 37 38]. The Supreme Court makes this finding for the following reasons: (1) this is the natural reading of the policies [25]; (2) the interpretation favoured by the Appellants conflates the first and third criteria of the policies in question [26]; and (3) the policies were intended to implement the guidance given in National Planning Policy Guidance 8, which focuses upon the availability of sites which might accommodate the proposed development, rather than upon addressing an identified deficiency in shopping provision [27]. In the present case, it is apparent that a flexible approach was adopted [30]. An error in interpreting the policies would be material only if there was a real possibility that the determination might have been different. The Court is not persuaded that in the present case there was any such possibility [31].
This case concerns the proper test to be applied by the Parole Board when determining whether to direct the release of a person subject to a sentence of imprisonment for public protection (IPP). On 19 May 2006 the appellant punched a man during a fight outside a pub. The man fell backwards, struck his head on the ground and died the next day. The appellant was duly convicted of manslaughter. The judge concluded that the appellant was dangerous; he was forceful, physically strong and considered that he had the right to respond with violence to any tendered or threatened towards him. Accordingly the judge decided to impose a sentence of imprisonment for public protection on the basis that there was a significant risk to members of the public of serious harm occasioned by the commission by [the offender] of further specified offences (Criminal Justice Act 2003, section 225(1)(b)). The judge fixed a minimum term (tariff period) of 2 years 108 days. The tariff period expired on 19 May 2009. Following the expiry of this tariff period it was the responsibility of the Parole Board to decide whether the appellant should be released on licence. In conducting this assessment the Parole Board are required not to order release unless satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined (Crime (Sentences) Act 1997, section 28(6)(b)). The Parole Board review took place on 10 May 2010. The Parole Board concluded that the appellant had made significant progress but continued to present a low risk of re offending and a medium risk of serious harm. As a result the Parole Board declined to order release. The appellant issued proceedings for judicial review, claiming (a) that the Parole Board had applied the wrong test; and (b) damages for the delay of almost one year in holding the review. The claim for damages was disposed of by the Supreme Court by judgment dated 1 May 2013, [2013] UKSC 23. Consequently, only the claim that the wrong test was applied remains for determination. Subsequent to the commencement of the judicial review proceedings, the Parole Board directed that the appellant be released on licence. As a result the present appeal has no direct significance for the appellants detention. Nonetheless, the matter was of significance for the Parole Board when it came before the Court of Appeal and may have a continuing significance in future cases. Consequently, the appellant seeks permissions to appeal to the Supreme Court. The Supreme Court grants permission to appeal but unanimously dismisses the appeal. The judgment of the Court is given by Lord Mance. Section 225(3) of the Criminal Justice Act 2003 (the 2003 Act) introduced a new form of indeterminate sentence, imprisonment for public protection, based on offending which was either of a kind for which a life sentence was not available or not of such seriousness as to justify a life sentence [21]. Sentences of IPP were fitted into the pre existing framework established for mandatory or discretionary life sentences [22], under which the criteria for imposition of a discretionary life sentence were, broadly, the commission of a very serious offence and a conclusion that the offender was a serious danger to the public and likely to remain so for an indeterminate period. In imposing a discretionary life sentence the court makes, at least in part, a predictive judgment as to the risk the offender will pose in the post tariff period [32]. Nothing in section 225(1)(b) of the 2003 Act suggests a distinction between the approach required when imposing a discretionary life sentence and when imposing a sentence of IPP [33]. It is difficult to square the reasoning in R v Smith (Nicholas) [2011] UKSC 37 that no such predictive judgment is involved when imposing a sentence of IPP with other case law or to see why Smith needed to address that point. The reasoning in Smith is thus questionable, but since it was not challenged on this appeal and is not ultimately decisive, no more need be said about it. [34 38]. The suggestion in R v Parole Board, Ex parte Bradley [1991] 1 WLR 134, 143F, 144H, 145F G and 146A C that the reference to future offending being likely involves a test of mathematical probability is unsound. It is not helpful to define significant risk in terms of numerical probability, whether as more probable than not or by any other percentage of likelihood [17]. A test of good grounds is more appropriate [28]. The test to be applied by the Parole Board when considering whether to direct release on licence from IPP is not the same as the test applied by the sentencing judge when imposing the sentence of IPP in the first place [39]. The two tests are, both in their terms and in their default position, substantially different [41]. By introducing a sentence of IPP into the framework applicable to discretionary life sentences, Parliament must on the face of it have intended that release from a sentence of IPP should be subject to the like test as release from a discretionary life sentence [42]. There is no reason why the statutory scheme should not involve a high threshold for imposition of a sentence of IPP than for continuing detention post tariff [44, 48]. The European Convention on Human Rights does not require a different result. Strasbourg case law accepts a sufficient causal connection between the imposition of a sentence of IPP and the deprivation of the offenders liberty in the post tariff period when release is contingent on him demonstrating to the Parole Board that he no longer poses a risk [48]. There was not basis for interfering with the decisions below that the appellant had not established that the Parole Board wrongly took into account directions by the Secretary of State on the test to apply, which the Secretary of State had no power to give [50 53].
By a lease dated 28 April 2006, the freeholder of a block of flats in Runcorn (the Building) let Flat 10 in the building for a term of 199 years from 1 January 2006 to Mr Kumarasamy (the Headlease). The Building is accessed by a paved pathway (the paved area) which leads to the main entrance door which opens onto a front hallway (the front hallway). On 2 April 2009, Mr Kumarasamy granted Mr Edwards a subtenancy of the Flat for a term expiring on 5 October 2009 (the Subtenancy). The Subtenancy included a grant of the right to use, in common with others, any shared rights of access, stairways, communal parts, paths and drives of the Building. Under the Subtenancy, Mr Edwards was under an obligation to repair the Flat, excepting items which Mr Kumarasamy was responsible to maintain. On 1 July 2010, Mr Edwards was taking rubbish from the Flat to the communal dustbins, when he tripped over an uneven paving stone on the paved area. He suffered injuries as a result and issued proceedings against Mr Kumarasamy contending that his injury was caused by Mr Kumarasamys failure to keep the paved area in repair, in breach of covenants implied into the Subtenancy by section 11(1)(a) and 11(1A)(a) of the Landlord and Tenant Act 1985 (the 1985 Act). At first instance Deputy District Judge Gilman accepted Mr Edwards case and awarded him 3,750 in damages. Her Honour Judge May QC allowed Mr Kumarasamys appeal on two grounds: (i) the paved area was not within the ambit of the section 11 covenant; and (ii) even if it had been, Mr Kumarasamy could not have been liable as he had no notice of the disrepair. The Court of Appeal allowed Mr Edwards appeal, disagreeing with Judge May on both grounds. Mr Kumarasamy now appeals to the Supreme Court. The Supreme Court unanimously allows Mr Kumarasamys appeal. Lord Neuberger gives the leading judgment, with which the other Justices agree. Lord Carnwath also gives a short judgment. This appeal raises three questions, all of which must be answered in the affirmative for Mr Edwards to succeed on the appeal [14 16]: (1) Whether, in the light of the wording of sections 11(1)(a) and 11(1A)(a) of the 1985 Act, the paved area can be described as part of the exterior of the front hall; (2) Whether Mr Kumarasamy had an estate or interest in the front hall for the purposes of section 11(1A)(a); (3) Whether Mr Kumarasamy could be liable to Mr Edwards for the disrepair in question notwithstanding that he had had no notice of the disrepair in the paved area before Mr Edwards accident. Section 11(1) of the 1985 Act, which implies into certain leases of dwelling houses a covenant by the landlord to keep in repair the structure and exterior of the dwelling house, applies to the Subtenancy. Where the dwelling house only forms part of a building, section 11(1A) provides that the covenant has effect in relation to any part of the building in which the lessor has an estate or interest [6]. It is not possible, as a matter of ordinary language, to describe a path leading from a car park to the entrance door of a building as part of the exterior of the front hall of that building [17]. Such a wide reading would be difficult to reconcile with the wording of section 11(1A)(a), particularly the limitation to the building, and the specific extension to cover drains, gutters and external pipes, which supports a natural reading of the term exterior [18]. As to the second question, Mr Kumarasamy was granted a right of way over the front hall and, as a matter of property law, a right of way over land constitutes an interest in that land [23]. The argument that Mr Kumarasamy cannot be said to have interest in the front hall since the Subtenancy had effectively deprived Mr Kumarasamy of any practical benefit in the easement so long as it continued is rejected [24 25]. As to the third question, there is an established rule that a landlord is not liable to repair premises which are in the possession of the tenant and not of the landlord, unless and until the landlord has notice of the disrepair (the rule) [30]. Where a landlord agrees to repair the structure and exterior of a flat, the rule would apply but only to the extent that the structure is included in the demise and the tenant is accordingly in possession of that part of the structure [39 40]. The subsequent question is whether the rule can be invoked when a landlord has covenanted with a tenant to repair the structure but is not in possession of the structure, for example because he has let it to another tenant [41]. In such a case, the landlord is not normally entitled to notice in such circumstances [42 42]. The rule only applies to property in the possession of the tenant [43]. In view of this analysis, Mr Kumarasamys submission that, in every case where a tenant relies on a covenant implied by section 11, a landlord could not be liable until they had notice of the disrepair, even where the landlord is undoubtedly in possession of the property, is rejected [44 46]. The present case is concerned with the application of a landlords repairing covenant to property which is not in the possession of either the landlord or the tenant. The application of the reasoning upon which the rule is based justifies the conclusion that the landlords obligation to repair the paved area is only triggered once he has notice of any disrepair for which the tenant would seek to make him liable [49]. While it is true that Mr Kumarasamy has the right to use the common parts as against the freeholder, he has effectively lost that right for the duration of the Subtenancy to the tenant, Mr Edwards [50]. It is true that the tenant does not enjoy exclusive possession of the common parts, but he is present on them every time he comes to or leaves the flat [50] and has the best means of knowing of any want of repair in them [52].
The appellant company, De Villiers, is a surveyor. The respondent, Tiuta International, was a lender of short term business finance until it went into administration in July 2012. This appeal arises out of De Villiers application for summary judgment on part of a claim which Tiuta brought against De Villiers. As a result, the following facts have been either admitted or assumed to be correct. In April 2011 Tiuta entered into a nine month loan facility agreement (the First Facility) with a Mr Wawman in connection with a residential property development. Advances under the First Facility were to be secured by a charge over the development. The First Facility was agreed on the basis of De Villiers valuation of the development. Tiuta advanced various sums under the First Facility. In December 2011, shortly before the expiry of the First Facility, Tiuta entered into a second loan facility agreement (the Second Facility) with Mr Wawman in the sum of 3,088,252 in connection with the same development. Of that sum, 2,799,252 was to be used to discharge the outstanding indebtedness under the First Facility; the remaining 289,000 was new money, advanced to fund the development. The sums advanced under the Second Facility were secured by a further charge over the development. In January 2012 Tiuta advanced 2,799,252 to Mr Wawmans existing loan account, thereby discharging his outstanding indebtedness under the First Facility in full. Tiuta then advanced further sums as new money for the development. The advances under the Second Facility were made on the basis of De Villiers further valuation of the development in November 2012, which it revised twice in December 2012. None of the sums advanced under the Second Facility have been repaid. It is assumed for the purposes of the appeal that the valuations given for the purposes of the Second Facility were negligent, as Tiuta alleges. It is also assumed that, but for that negligence, Tiuta would not have advanced the sums under the Second Facility. Tiuta does not allege negligence in respect of the First Valuation, under which all the advanced sums were repaid in full. De Villiers application for summary judgment argued that Tiuta would have suffered some loss in any event because, but for the allegedly negligent undervaluation in respect of the Second Facility, no sums would have been advanced under the Second Facility. As a result, sums owed to Tiuta under the First Facility would have remained unpaid. The Deputy High Court Judge accepted that argument and held that Tiutas loss was limited to the new money advanced under the Second Facility. The Court of Appeal disagreed and allowed Tiutas appeal. The Supreme Court unanimously allows the appeal. Lord Sumption gives the judgment with which Lady Hale, Lord Kerr, Lord Lloyd Jones and Lord Briggs agree. The basic measure of damages is the sum which restores the claimant as closely as possible to the position that he would have been in if he had not been wronged. That principle is qualified by various rules which limit recoverable losses. Where a claimant lends money, and but for a negligent valuation would not have done so, the basic measure of damages is the difference between: (a) the position the claimant would have been in, had the defendant not been negligent and (b) the claimants actual position. This is the basic comparison discussed by Lord Nicholls in Nykredit Mortgage Bank plc v Edward Erdman Group Ltd (No 2) [1997] 1 WLR 1627. The basic comparison is typically between: (a) the amount of money lent by the claimant, plus interest on that money and (b) the value of the rights acquired under the loan agreement plus the true value of the overvalued property [6]. It is assumed in this appeal that Tiuta would not have entered into the Second Facility, had De Villiers not negligently undervalued the security property. Tiuta would have still entered into the First Facility, but would not have lost the new money advanced under the Second Facility. Whereas the Deputy High Court Judge held that Tiutas losses were limited to that new money, the majority of the Court of Appeal held that the judge failed to take into account that the Second Facility was structured so as to pay off the indebtedness under the First Facility. The majority consequently held that the basic measure of Tiutas loss was: (a) the sums advanced under the Second Facility, less (b) the value of Tiutas rights under the Second Facility plus the true value of the security [7 8]. The Supreme Court disagrees with that approach. The fact that the advance under the Second Facility was used to pay off indebtedness under the First Facility does not require the Court to ignore the fact that Tiuta would have lost the sums which had been outstanding under the First Facility in any event. The basic comparison envisaged in Nykredit assumes that, but for the negligent valuation, the claimant would still have had the money which the negligent valuation caused him to lend. In this case Tiuta would not have had that money, because it had already lent it under the First Facility [9]. It is irrelevant, for the purposes of the basic comparison discussed in Nykredit, that the valuer might have contemplated being liable for the full amount of the advances under the Second Facility. The foreseeability of loss is not relevant to the basic comparison. Various legal filters may result in the valuer being liable for less than the difference calculated under the basic comparison. However, the valuer cannot be liable for more than the difference which his negligence has made simply because he contemplated that he might be liable in circumstances other than those which actually came about [10]. Tiuta argued that the use of the advance under the Second Facility to discharge the indebtedness under the First Facility was a collateral benefit to Tiuta, which need not be taken into account when calculating Tiutas loss [11]. The Supreme Court rejects that argument. Generally, where a claimant has received some benefit attributable to the events which caused his loss, it must be taken into account in assessing damages unless the benefit is collateral. Collateral benefits are generally those whose receipt arose independently of the circumstances giving rise to the loss [12]. The discharge of the existing indebtedness was not a collateral benefit. First, the refinancing part of the Second Facility was neutral in its effect, rather than beneficial: it both increased Tituas exposure and reduced its loss under the First Facility by the same amount. Secondly, the terms of the Second Facility required the indebtedness under the First Facility to be discharged, so that outcome was not collateral to the Second Facility [13]. The appeal is therefore allowed. These reasons are sensitive to these facts, including those which have been assumed for the purposes of the appeal. Subject to any submissions that may be made about the exact form of relief, the order of the Deputy High Court Judge will be restored [15].
These three appeals concern requests for extradition under European arrest warrants (EAWs). The Lithuanian Ministry of Justice issued EAWs for Mindaugas Bucnys based on convictions for housebreaking and fraud and for Marius Sakalis based on his conviction for sexual assaults. The Estonian Ministry of Justice issued an EAW for Mr Dimitri Lavrov based on a conviction for murder. EAWs are warrants intended to meet the requirements of Council Framework Decision 2002/584/JHA on surrender procedures between member states of the EU (the Framework Decision). Within the United Kingdom, Part 1 of the Extradition Act 2003 (the 2003 Act) was enacted to give effect to the same requirements. Under section 2(7) of the 2003 Act the requests were, after receipt in this country, certified by the Serious Organised Crime Agency (SOCA) (now the National Crime Agency (NCA), the designated authority under section 2(8), as Part 1 warrants issued by a judicial authority of a category 1 territory having the function of issuing arrest warrants. The questions of principle raised by the present appeals are whether the requests are open to challenge on the basis that (i) they were not the product of a judicial decision by a judicial authority within the terms of the Framework Decision and/or of Part 1 of the United Kingdom Extradition Act 2003, and (ii) the ministries making them did not have the function of issuing domestic arrest warrants and were incorrectly certified by SOCA under section 2(7) of the 2003 Act. If a challenge is open on either or both of these bases, the third question is (iii) whether the challenge is on the evidence well founded in the case of either or both of the Ministries. On 12 December 2012, the Divisional Court answered the first question affirmatively and the second negatively. As to the third, it concluded that a ministry of justice would, under European law, be regarded as a judicial authority for the purposes of issuing a conviction warrant if it was sufficiently independent of the executive for the purposes of making that judicial decision (para 98), and that, in this connection, the antecedent process, in the form of a request for the issue of a European arrest warrant coming from the court responsible for the conviction, was relevant. On the evidence before it, it held that the EAWs issued by the Lithuanian Ministry in respect of Mr Bucnys and Mr Sakalis were valid, while the EAW issued by the Estonian Ministry in respect of Mr Lavrov was invalid. Mr Bucnys and Mr Sakalis now appeal, while the Estonian Ministry appeals in the case of Mr Lavrov. During the appeal further evidence was adduced about the legal position and procedures in Lithuania and Estonia. Since the hearing, the Court has been informed by those instructed by Mr Bucnys that he has [regrettably] died. The issue remains of importance, and this judgment records the Courts conclusions on it. The Supreme Court unanimously holds that the arrest warrants issued for Mr Bucnys and Mr Lavrov were valid, whereas that issued for Mr Sakalis was not. Mr Bucnyss appeal is therefore dismissed. Mr Sakaliss appeal and the Estonian Ministrys appeal in Mr Lavrovs case are allowed. Whether a justice ministry can be a judicial authority Mr Bucnys, Mr Sakalis and Mr Lavrov submitted that the relevant ministries of justice could not be a judicial authority because they were not part of the courts or judiciary as ordinarily understood. The Supreme Court, in a judgment given by Lord Mance with which all other Justices agree, holds that member states were not intended to have carte blanche to define judicial authority however they choose. The concept is embedded in European Union law. The Framework Decision is based on article 31(1)(a) of the former Treaty of European Union, which itself distinguishes between ministries and judicial authorities [23]. The concept falls under EU law to be interpreted by looking at the instruments context and intended effects [45]. In the context of the Framework Decision, the most obvious purpose of insisting on the concept was to ensure objectivity (including freedom from political or executive influence) in decision making and to enhance confidence in a system which was going to lead to a new level of mutual cooperation including the surrender of member states own nationals to other member states [45]. An EAW issued by a ministry for a convicted person with a view to his or her surrender can be regarded as issued by a judicial authority if the ministry under the relevant national law issues the warrant at the request of, and by way of endorsement of a decision that the issue of such a warrant is appropriate made by, the court responsible for the sentence or by some other person or body properly regarded as a judicial authority responsible for its execution [66]. If this condition is satisfied, the existence of a discretion on the part of the ministry not to issue a EAW which the responsible court (or other judicial authority) has decided appropriate and requested it to issue does not affect this [66]. That could work only in favour of the person sought by the warrant and would be in the spirit of the Framework Decision [56]. In issuing the EAWs for the arrest of Mr Bucnys and Mr Lavrov, the respective ministries acted only at the request of and by way of endorsement of a decision made by a court responsible for the sentence. These two EAWs therefore satisfied the above test [66] and are valid. However, in issuing the EAW for Mr Sakaliss arrest, the Lithuanian ministry was acting only on a request from the prison service, and this EAW did not meet the above test and is invalid [67]. The certification of the requests Mr Bucnys, Mr Sakalis and Mr Lavrov also submitted that the terms of section 2(7) of the 2003 Act meant that a ministry of justice could be certified by SOCA only if it was responsible for issuing domestic arrest warrants rather than European ones. While that was not inconsistent with the bare language of the Act, such an interpretation would involve SOCA in onerous investigations of overseas practice and may have perverse results where, for example, the European warrants with which Part 1 is concerned were issued by a different, but more senior, judicial authority than the domestic ones [26 28]. The correct interpretation was that section 2(7) referred to the authority responsible for issuing European arrest warrants [33]. The warrants and certification were thus unobjectionable in that respect.
Mexford House is a substantial three storey block of offices in the North Shore area of Blackpool. It was purpose built in 1971 and was occupied continuously as Government offices from 1972. The property was vacant, however, by 1 April 2010, the date on which the non domestic rating list for the area of Blackpool Borough Council first came into force by virtue of section 41(2) of the Local Government Finance Act 1988 (the 1988 Act). A valuation was made for the purposes of the new rating list. The rateable value had to be determined by reference to the antecedent valuation date two years earlier. The rateable value initially entered by the valuation officer with effect from 1 April 2010 was 490,000. This reflected his view that there were other office buildings in the area of similar age and quality, occupied by public sector tenants at rent of the same order. However, the Valuation Tribunal for England reduced the rateable value of Mexford House to 1. The valuation officer appealed to the Upper Tribunal, before which the matter was dealt with by way of a full rehearing on fact and law. In cross examination, the valuation officer accepted that as at the antecedent valuation date he could not identify any person in the real would who would bid for the tenancy of Mexford House, although he noted that there was demand for other (occupied) properties that were comparable. In light of the comparable properties he gave a final assessment of the rateable value as 370,000. After the valuation officers evidence, counsel for both parties informed the Upper Tribunal that the issue between them could be decided as a matter of law upon an agreed basis of fact. No other evidence was heard. The parties lodged before the Upper Tribunal a Joint Position Paper, in which they agreed that at the time of the antecedent valuation date nobody in the real world would have been prepared to occupy the property and pay a positive price. They agreed that the rating hypothesis requires the existence of a hypothetical tenant to be assumed, but the question was whether the same hypothesis requires the rateable value to be assessed by reference to the general demand as evidenced by the occupation of other office properties with similar characteristics. It was agreed that, if the answer is yes, the correct rateable value was 370,000; if no, 1. The Upper Tribunal answered yes, so it allowed the valuation officers appeal and fixed the rateable value at 370,000. The Court of Appeal allowed Telereal Trilliums appeal and restored the Valuation Tribunal for Englands assessment of the value at 1, on the basis that there was no demand in the market for occupation of Mexford House. The valuation officer appeals to the Supreme Court, which considers the same question as the Upper Tribunal and the Court of Appeal. The Supreme Court allows the appeal by a majority of three to two. Lord Carnwath gives the judgment of the majority, with which Lord Reed and Lord Lloyd Jones agree. Lord Briggs gives a dissenting judgment, with which Lady Black agrees. Lord Carnwath notes that the court must take the Joint Position Paper as it stands. It cannot look beyond it to evidence which was not referred to by the tribunal, nor attempt to resolve issues which were left unresolved by agreement. However, in so far as there are differences as to its interpretation, the court is entitled to look at the context in which it was arrived at, and the state of the evidence as recorded by the tribunal at that time [31]. He approves of the Upper Tribunals reliance on London County Council v Church Wardens and Overseers of the Poor of the Parish of Erith in the County of Kent [1893] AC 562, from which it extracted the proposition that the true test is whether the occupation is of value, contrasted with land that was struck with sterility in any and everybodys hands [36 42]. Cases such as Hoare v National Trust [1998] RA 391 and Tomlinson v Plymouth Argyle Football Co Ltd (1960) 31 DRA 788, referred to by the Court of Appeal, do not assist the respondent as in those cases the absence of alternative tenants was due to the inherently burdensome nature of the properties, rather than the state of the market [46 48]. Lord Carnwath endorses the distinction drawn in previous Land Tribunal cases between a property which is unoccupied merely because of a surplus between supply and demand in the market, and a property which has reached the end of its economic life [55]. The Valuation Office Agencys guidance on whether a property is obsolete lists several relevant considerations, including whether the property was occupied at the antecedent valuation date, and whether there are other similar properties in the locality that are occupied [56]. This highlights the issues of fact which may become relevant in drawing the distinction in particular cases, but which, by agreement, the tribunal in the present case was not required to resolve [57]. Whether the building is occupied or unoccupied, or an actual tenant has been identified, at the relevant date is not critical. Even in a saturated market the rating hypothesis assumes a willing tenant, and by implication one who is sufficiently interested to enter negotiations to agree a rent on the statutory basis. There is no reason why, in the absence of other material evidence, the level of that rent should not be assessed by reference to general demand derived from occupation of other office properties with similar characteristics [58]. The majority therefore allows the appeal and restores the decision of the Upper Tribunal [61]. Lord Briggs, dissenting, comes to a different conclusion about the meaning and consequences of the Joint Position Paper. In the real world the existence of comparable properties at substantial rents would ordinarily have compelled an examination of whether one or more of the tenants in those properties would have been prepared to relocate to the subject property at a lower, but still more than nominal, rent [62]. It will be very rare that the evidence really does show that there is no demand at all for the subject property where there are comparable properties in the locality let at substantial rents. But if that is what the evidence shows (or what the parties have agreed), the rating hypothesis does not require a departure from that real world conclusion, merely because the subject property is in theory capable of beneficial occupation [83].
The Housing Act 1996 places a duty on local housing authorities to ensure that suitable accommodation is available for homeless persons who fulfil certain criteria. An authority may cease to be subject to that duty where an applicant refuses an offer of accommodation, but only if the authority notifies him, in writing, that it regards itself as having discharged its duty. If dissatisfied with an authoritys decision that its duty has been discharged, an applicant may appeal to the county court. But he may only do so on a point of law arising from the decision; the county court judge is not entitled to decide factual disputes as to whether or not events have happened. In this case, Birmingham City Council maintained that it had successfully discharged its duty to a number of applicants who were homeless and fulfilled the relevant criteria. The applicants disputed this, claiming that, although written notification of the kind the law requires may have been sent to them by the authority, they never actually received it. The dispute between the parties as to whether the duty had been discharged therefore turned entirely on a pure question of fact. It was therefore of a nature which a county court judge on appeal has no power to determine. Before this Court, the applicants argued that the lack of a fact finding jurisdiction for a county court on appeal put that aspect of the system in breach of Article 6(1) of the European Convention on Human Rights, which guarantees the right to a fair trial in the determination of civil rights and obligations. Two main issues arose for the courts determination: (1) whether an appeal to the county court involved the determination of a civil right for the purposes of Article 6(1); (2) if so, whether Article 6(1) required that a court hearing such an appeal must itself be able to determine issues of fact such as those raised in the present case. The Supreme Court unanimously dismissed the appeal. It held that a decision that a local housing authority takes under the Housing Act 1996 that it has discharged its duty to an applicant is not a determination of the applicants civil rights for the purposes of Article 6(1). It therefore lies outside the protection of that Article. The Court also holds that, although it is unnecessary to decide the point, the appeal procedure as a whole complies with Article 6(1) in any event. As to the first issue: Lord Hope (with whom Lady Hale and Lord Brown agreed) reasoned that in cases such as this, where the award of services or benefits in kind is not an individual right of which the applicant can consider himself the holder, but is dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met, Article 6(1) is not engaged (see para [49]). Lord Collins, whilst agreeing with Lord Hopes reasoning, placed less emphasis on the evaluative nature of the decision making process (para [58]). The mere fact that evaluative judgments are required did not take the case out of Article 6(1) (para [61]). The main reason why the decision fell outside the scope of the Article was that the statutory duty lacked precision. There was no right to any particular accommodation; the duty was simply to ensure that accommodation was available. Together with the essentially public nature of the duty, those factors meant that the duty did not give rise to an individual economic right (para [73]). As to the second issue: Although the question whether or not the letters were received was factual, it was just one among a number of interlinked questions that had to be addressed to determine whether the housing authoritys duty had been discharged. No case of the European Court of Human Rights was to the effect that an appeal from such a determination on a point of law only would constitute a breach of Article 6(1) (paras [53] [55], [79]).
The main controversy in the appeal was whether, under the test laid out in section 446X of ITEPA, the disposal of the shares had been for a price which exceeded the market value of the shares at the time of the disposal [2]. If so, then the excess (less the costs associated with completing the transaction) would be treated as employment income [2]. ITEPA 2003 had adopted the definition of market value set out in capital gains tax legislation [22]. This required consideration of what a hypothetical purchaser would pay to acquire the rights attached to the shares [49]. Two questions emerged: (1) whether Gs shares were to be valued simply as shares whose rights were set out in Grays Groups articles of association, or whether his special rights under the subscription agreement were to be taken into account as if they were set out in the articles and (2) if the latter, what effect those special rights had on the valuation exercise [25]. The first question could be divided into two parts: (a) whether the special rights should be taken as attaching to the shares as a matter of company law and (b) whether Part 7 of ITEPA, which also dealt with other financial instruments, should be taken as consistently requiring such special rights to be taken into account in the assessment of market value [26]. On (a), shareholders mutual obligations were normally set out in the companys articles of association, and Grays Groups articles said nothing about special rights attaching to Gs shares on their disposal [27]. A clause in the subscription agreement did state that the agreements provisions should prevail over the articles, but there was a previous House of Lords case which suggested that such a provision would have no effect [31]. That case had not been cited in argument before the court, and might require further legal submissions, but was not decisive owing to the conclusions reached on other points [32]. On (b), elsewhere in Part 7 of ITEPA, in relation to other financial instruments, similar special rights did affect the market value of the asset in question [33]. The principle that tax is to be charged only by clear words was less potent than it had been, but was still relevant to interpreting tax laws. There was real doubt as to whether Parliament, in Part 7 of ITEPA, had enacted a scheme which drew a coherent distinction between the treatment of rights attaching to shares and those attaching to other financial instruments [37]. The appeal was dismissed on the second question. When P purchased Grays Group Ltd, it was not concerned with the division of the sale price between the vendors, except in so far as that might have adverse tax consequences for Timber Products [38]. Whether it was right to say that Gs special rights did in some sense attach to the shares or not, those rights had no value to the hypothetical purchaser [40, 49]. They were rights personal to G [51] and were extinguished by the payment which G received [50]. The valuation did not have to take account of the actual sale of Gs shares at a special price enhanced for reasons relating to Gs special position as managing director [43].
The issue in this appeal is whether, in terms of the Scotland Act 1998 (the Scotland Act), section 72 of the Agricultural Holdings (Scotland) Act 2003 (the 2003 Act) is outside the legislative competence of the Scottish Parliament. The argument for Mr Salvesen is that it is incompatible with his rights under article 1 of the First Protocol to the European Convention on Human Rights (A1P1) relating to the protection of his property [1, 26]. For much of the post war period, agricultural tenants enjoyed effectively indefinite security of tenure under statute. The practice had grown up of granting new agricultural tenancies to limited partnerships constituted under the Limited Partnerships Act 1907 in which the landlord or his nominee was the limited partner and the tenants of the farm were the general partners. When such a limited partnership is dissolved, the remaining partners cannot carry on the business of the firm, and there ceases to be anyone who can claim to be the tenant. Therefore by dissolving the limited partnership, the limited partner effectively had a way of terminating the tenancy. Landlords were reluctant to let agricultural land on any other basis and the practice of letting to limited partnerships became widespread. But it came to be recognised that a new system was needed [8, 9]. Section 72(6) of the 2003 Act provides that if the limited partner serves a dissolution notice after 16 September 2002, the tenancy continues to have effect and the general partner becomes the tenant under the tenancy in his own right if he gives notice to the landlord as required under the subsection. Section 72 also provides that if the dissolution notice is served between 16 September 2002 and 30 June 2003, the landlord can apply to the Land Court for an order that section 72(6) does not apply. The Land Court can make such an order only if it is satisfied that (a) the dissolution notice had been served otherwise than for the purposes of depriving any general partner of any right derived from the section and (b) that it is reasonable to make the order. Section 72(10) provides that where a tenancy continues to have effect by virtue of section 72(6) and the dissolution notice was served on or after 1 July 2003, section 73 applies. Section 73 allows the landlord to terminate the tenancy at the end of its term by giving intimation of his intention to do so and then serving a notice to quit. It is this section, and the conditions for its application in section 72(10), that gives rise to the devolution issue in this case [13 16, 21]. The Agricultural Holdings (Scotland) Bill had been introduced into the Scottish Parliament on 16 September 2002. Amendments were published on 3 February 2003, which included the precursor to section 72. At that stage, the start date of the period on or after which a notice of dissolution would trigger the application of the provision was 4 February 2003. On or about 10 March 2003, an amendment to that provision was published which moved the start date back to 16 September 2002. The aim was apparently to address urgently the mass service of dissolution notices and to prevent any further steps by way of avoidance by landlords. The March 2003 amendment was retrospective. It caught dissolution notices that had been served in the period since the Bill was introduced. They included the notice served by Mr Salvesen [18 21]. Peaston Farm, near Ormiston, East Lothian was subject to a tenancy held by a limited partnership in which the general partners were the Riddells. When Mr Salvesen purchased the farm in 1998 and became the landlord, the limited partners rights were assigned to his nominee. The lease was to run until 28 November 2008 and would continue from year to year thereafter unless the limited partnership was dissolved. On 3 February 2003 the limited partner gave notice to the general partners that the limited partnership which was to run until 28 November 2008 and from year to year thereafter unless dissolved would be dissolved on 28 November 2008. On 12 December 2008 the general partners gave notice to the landlord that they intended to become the joint tenants of the farm in their own right. Mr Salvesen then applied to the Land Court for an order that section 72(6) did not apply. He said that his intention when he bought the farm was, when the tenancy came to an end, to amalgamate it with other farms he had in hand, and farm everything as one unit. The Land Court was not satisfied that the test for such an order had been made out. Mr Salvesen then appealed to the Court of Session and obtained leave to raise the devolution issue which is now before the Supreme Court. Although the underlying dispute between the parties to the lease was settled during the summer of 2012, the question whether section 72 is incompatible with the landlords A1P1 rights is a matter of general public importance [4 7]. The Supreme Court unanimously allows the appeal. It finds that Mr Salvesens A1P1 rights were violated by section 72(10) of the 2003 Act and that this provision is outside the legislative competence of the Scottish Parliament. It makes an order under the Scotland Act suspending the effect of this finding effectively until the defect is corrected [58]. The judgment is given by Lord Hope with whom all the other justices agree. A1P1 is, as was conceded by the Lord Advocate, engaged in this case [33]. A measure designed to deal with the large number of dissolution notices served on 3 February 2003 in an attempt to avoid the effects of the Bill can be said to have had a legitimate aim [40]. The effect of section 72(10) is to deny the benefit of section 73 to all cases where the tenancy was purportedly terminated between 16 September 2002 and 30 June 2003 but which continue to have effect by virtue of section 72(6). The landlords who served dissolution notices during that period are in a worse position than those who served notices from 1 July 2003. The provision is discriminatory in a respect that affects the landlords right to the enjoyment of their property. It is hard not to see it as having been designed to penalise landlords in this group retrospectively [42]. The Court is not persuaded that there was a justified difference in treatment between this group and landlords of continuing tenancies who served notices from 1 July 2003. The benefit of section 73 was regarded in their case as an appropriate counterweight to the benefit that was conferred on the general partner by section 72(6). The difference in treatment of those whose notices were served before that date has no logical justification. It is unfair and disproportionate. It is no answer to this criticism to say that there was an urgent need to meet the problem that had been identified. The legislation was intended to have an effect which was permanent and irrevocable. Section 72 does not pursue an aim that is reasonably related to the aim of the legislation as a whole. On this reading of it, Mr Salvesens rights under A1P1 would have been violated if it had still been applied to him [44]. The relevant provisions are expressed in clear and unequivocal language. Section 72 can be read only in a way that is incompatible with the A1P1 right. It is plain that the whole section needs to be looked at again, as does its relationship with section 73. But the finding of incompatibility ought not to extend any further than is necessary to deal with the facts of this case, and it is important that accrued rights which are not affected by the incompatibility should not be interfered with. The incompatibility arises from the fact that section 72(10) excludes landlords of continuing tenancies from the benefit of section 73 if their notices were served between 16 September 2002 and 30 June 2003. So the Court limits the decision about the lack of legislative competence to that subsection only [47 51]. The Court declines to make an order removing or limiting the retrospective effect of its decision on incompatibility. A long period has elapsed since the legislation came into operation, and there are competing rights and interests which will need to be considered, as well as a number of different possible scenarios. Decisions as to how the incompatibility is to be corrected, for the past as well as for the future, must be left to the Parliament guided by the Scottish Ministers following research, consultation with both sides of the industry, and the formulation of proposals for dealing with the situation that respects the parties Convention rights [54 57]. An order will be made under the Scotland Act suspending the effect of this finding for a period that will enable this process to be carried out [58].
The parties entered into a joint venture agreement on 29 January 1981. Article 8 provided that any dispute arising from the joint venture should be resolved by arbitration before three arbitrators, each of whom was required to be a respected member of the Ismaili community (the Requirement). The Ismaili community comprises Shia Imami Ismaili Muslims and is led by the Aga Khan. The issue arising on this appeal is whether the Requirement, and/or the arbitration agreement as a whole, became void when the Employment Equality (Religion or Belief) Regulations 2003 (the Regulations) came into force on 2 December 2003, as an unlawful arrangement to discriminate on grounds of religion when choosing between persons offering personal services. The joint venture ended in 1988. The division of the joint venture assets was largely determined by a three man panel appointed in accordance with the arbitration agreement, but some matters remained in dispute. On 31 July 2008 Mr Hashwanis solicitors wrote to Mr Jivraj asserting that a balance of over US$4.4m was due to him and giving notice of his intention to appoint Sir Anthony Colman, a retired judge of the Commercial Court, as an arbitrator. Sir Anthony was not a member of the Ismaili community. Mr Jivraj commenced proceedings for a declaration that his appointment was void as a breach of the Requirement. Mr Hashwani sought an order that Sir Anthony be appointed as sole arbitrator. The High Court (David Steel J) held that the appointment of arbitrators fell outside the scope of the Regulations as they were not employed or, if they were, that the Requirement fell within the exception permitted for genuine occupational requirements which it was proportionate to apply. Had he held that the Requirement was void, he would have held that the arbitration agreement as a whole was void. The Court of Appeal allowed Mr Hashwanis appeal in relation to the Regulations, finding that arbitrators were employed and that there had been unlawful religious discrimination. However, they concluded that the agreement should not be enforced with the Requirement severed from it and, accordingly, Sir Anthonys appointment was invalid (the severance issue). Mr Jivraj appealed to the Supreme Court in respect of the finding that the clause was void by reason of the Regulations. Mr Hashwani cross appealed on the severance issue. The Supreme Court unanimously allows the appeal on the ground that an arbitrator is not a person employed under a contract personally to do work within the meaning of the Regulations, which do not therefore apply. The majority (Lord Phillips, Lord Walker, Lord Clarke and Lord Dyson) also find that the Requirement would have fallen within the exception for genuine occupational requirements if the Regulations had applied. Lord Mance preferred not to deal with this issue as it did not arise in the light of the finding that the Regulations did not apply. The judgment of the majority is given by Lord Clarke. The High Court judge had correctly concluded that an arbitrator was not employed within the scope of the Regulations [22]. He or she fell outside the definition of a worker laid down by the case law of the European Court of Justice and was instead an independent provider of services who was not in a relationship of subordination with the person who received the services [34][40]. The dominant purpose of the contract was not the sole test for determining employment, although it might be relevant in arriving at the correct conclusion on the facts of a particular case [39]. An arbitrator was a quasi judicial adjudicator whose duty was not to act in the particular interests of either party [41]. The dominant purpose of the appointment, insofar as it was relevant, was the impartial resolution of the dispute [45]. The question of whether the Requirement was a genuine occupational requirement for the job for the purposes of the exception in regulation 7(3) of the Regulations did not therefore arise. However, whether a particular religion or belief was a legitimate and justified requirement of an occupation was an objective question for the court [59]. Arbitration was more than the application of a given national law to a dispute and a stipulation that an arbitrator be of a particular religion or belief can be relevant to the manner in which disputes are resolved [61]. In this case, the judge had correctly found that the Ismaili community had demonstrated an ethos, based on religion, for dispute resolution contained within that community [68]. The test was not one of necessity. The parties could properly regard arbitration before three Ismailis as likely to involve a procedure in which parties could have confidence and as likely to lead to conclusions of fact in which they could have particular confidence [70]. The severance issue did not therefore arise [72].
The appellant is an Egyptian national who has lived in the UK since 1994. He is subject to an asset freeze imposed on persons associated with Al Qaida under Chapter VII of the United Nations Charter. The United Nations Security Council Sanctions Committee maintains a list of persons and entities subject to the asset freeze. All members of the committee must agree to a nomination for inclusion on the list, or to de listing. The sanctions imposed on designated persons have a drastic impact on the individuals and entities concerned, and are of an indeterminate length. The United Kingdom had originally placed a hold on the appellants designation by the Sanctions Committee. On 14 September 2005 the respondent, in his capacity as a member of the Sanctions Committee, removed the United Kingdoms hold on the appellants designation. As a consequence, the appellant became subject to the asset freeze. The appellant challenged the respondents decision of 14 September 2005 to remove the hold the United Kingdom had placed on the appellants designation. The appellant challenged the respondents decision on four grounds: (i) although the respondents decision was made on untainted evidence, he was aware that the information on which other members of the Sanctions Committee were proceeding was or might have been obtained by torture, and this placed the respondent under an obligation not to support a tainted committee decision; (ii) the intended and inevitable effect of the committees decision was a serious interference with the appellants right to peaceful enjoyment of his property, which could only be achieved by a clear statutory power or common law rule, neither of which existed; (iii) the standard of proof adopted by the respondent, namely reasonable grounds to suspect that the appellant met the criteria for designation, was too low; (iv) the Wednesbury standard of review, that of reasonableness or irrationality, was wrong given the gravity of the context, and the appellant was entitled to a full merits review or at least one involving a proportionality analysis. The appellants judicial review was dismissed by the Divisional Court and the Court of Appeal. He was subsequently granted permission to appeal to the Supreme Court. The Supreme Court unanimously dismisses Mr Youssefs appeal. Lord Carnwath gives the only judgment, with which Lord Neuberger, Lord Mance, Lord Wilson and Lord Sumption agree. The court finds that the respondents 2005 decision to remove his hold on the proposal for the appellants designation by the Sanctions Committee was the exercise of prerogative powers for the conduct of foreign relations. This does not make it immune from judicial review, but the courts should proceed with caution [24]. On the first ground, torture tainted evidence, the court finds that the respondents decision must be judged by reference to his reasons, which were untainted, and not by the reasons of the committee which were published in 2010 [27]. Whilst there is no doubt as to the importance of the rules against torture and the use of torture tainted evidence, these rules do not imply a duty on states to inquire into the possible reliance on torture tainted evidence by other states, acting alone or as part of an international organisation [29]. On the second ground, absence of power, the court finds that there is statutory authority to satisfy the principle in Entick v Carrington that interference by the state with individual property rights cannot be justified by the exercise of prerogative powers, unsupported by specific statutory authority. The requisite statutory authority is provided by EU Regulation 881, which was given legislative effect by the European Communities Act 1971. The causative role played by the prior decision of the Sanctions Committee and the respondent as a member of the committee does not affect this conclusion [34]. The appellants third ground, that the standard of proof of reasonable grounds for suspicion is too low, is rejected. The court holds that the position of a decision maker trying to assess risk in advance is very different from that of a decision maker trying to determine whether someone has actually done something wrong. Designation has a preventative purpose [50]. The Financial Action Task Force (FATF) recommendations relating to money laundering and terrorist financing refer to the objective of freezing terrorist related assets based on reasonable grounds, or a reasonable basis, to suspect or believe that the assets could be used to finance terrorist activity. A similar test of whether there is sufficient information to provide a reasonable and credible basis for the listing was proposed by the Ombudsperson in her report to the Security Council in January 2011 and reaffirmed by her in 2013 [38 9]. The appellants reliance on the criticisms of a reasonable suspicion test by this court in Ahmed v HM Treasury (no. 2) [2010] UKSC 5 is rejected on the basis that the majority judgments in Ahmed turned principally on the interpretation of the United Nations Act 1946, and that this court has the advantage of more recent evidence as to the current practice of the UN committee court [49]. The fourth ground is the standard of review. The respondent accepted in light of the approach in Kennedy v Charity Commission [2014] UKSC 20 and Pham v Secretary of State for the Home Department [2015] UKSC 19, that the facts of the case are such that the review to be conducted will be in accordance with common law principles, incorporating notions of proportionality, but submitted that this does not imply a shift to merits review [54]. The court finds that whilst there is support for the use of proportionality as a test in relation to interference with fundamental rights, in many cases the application of a proportionality test is unlikely to lead to a different result from traditional grounds of judicial review, particularly in cases involving national security, where a large margin of appreciation is accorded to the executive [56 7]. The court rejects the appellants submission that a full merits review was required, finding that the UN Security Council has entrusted member states, as members of the Sanction Committee, with determining whether the designation criteria are met. It would be inconsistent with that regime for a national court to substitute its own assessment [58]. The court finds that whilst the Divisional Court was wrong to lay emphasis on an irrationality test, the applicant had failed to identify any particular aspect of the reasoning which is open to challenge even applying a proportionality test [59]. The court holds that even if there were a flaw in the respondents 2005 decision, this of itself would not entitle the appellant to a remedy. Quashing the decision would not have any substantive effect on the appellants present position, as it would not detract from the continuing effect of the Sanction Committees listing or its application in the United Kingdom through Regulation 881 [60].
These appeals concern the question whether customs officers have the power to detain goods which they reasonably suspect may be liable to forfeiture. In Eastenders, customs officers entered Eastenders premises and inspected consignments of alcoholic goods. Eastenders' employees were unable to provide documentary evidence that duty had been paid on the goods. The officers decided to detain the goods pending the outcome of further enquiries. The Commissioners subsequently stated that the goods had been detained under section 139 of the Customs and Excise Management Act 1979, which empowers customs officers to seize or detain "anything liable to forfeiture under the customs and excise Acts." [3 4] Eastenders applied for judicial review of the decision to detain those goods that were subsequently returned when the officers' enquiries proved inconclusive. Mr Justice Sales dismissed the application, holding that, where the Commissioners had reasonable grounds to suspect that goods might be liable to forfeiture, they had the power under section 139(1) to detain them for a reasonable time while they made enquiries. The Court of Appeal reversed that decision, holding that section 139(1) applied only where goods were actually liable to forfeiture. [5 7]. The Commissioners appeal to the Supreme Court. In First Stop, customs officers detained alcoholic goods at First Stop's premises, on suspicion that duty had not been paid, while enquiries were made. Written notices were provided stating that the goods had been detained "pending evidence of duty status (CEMA 1979, section 139)". Most of them were subsequently seized and the remainder returned to First Stop [8]. First Stop successfully applied for judicial review of the decision to detain the goods. Mr Justice Singh held that the detention was unlawful as the reason given for it was the need for investigation. The Court of Appeals judgment in Eastenders meant that goods could not lawfully be detained under section 139(1) for that purpose. However, the Court of Appeal disagreed with his interpretation, and decided that the effect of Eastenders was that if goods were in fact "liable to forfeiture", detention for a reasonable time was lawful under section 139(1) irrespective of the reason given for it [9 12]. Mr Justice Singh also held that the Commissioners were not protected from an order for costs by section 144(2) of the 1979 Act (which applies where officers had reasonable grounds for detaining goods) as the reason they gave for detaining the goods was unlawful. The Court of Appeal held that this was inconsistent with Eastenders. First Stop appeal against both decisions [12]. In a judgment delivered by Lord Sumption and Lord Reed, the court unanimously allows the Commissioners' appeal in Eastenders, dismisses First Stop's first appeal and allows its second appeal. The right to seize or detain property under section 139(1) is dependent on the property actually being liable to forfeiture. This turns on objectively ascertained facts; not on beliefs or suspicions, however reasonable. This is apparent when one looks at section 139(1) in the context of other provisions in the Act. For example, other powers are expressly stated to be exercisable on the basis of suspicion or belief [23], whereas the section 139(1) power is not. However, this interpretation would have troubling implications were there no other power to detain goods. It is essential in practice that customs officers should be able to secure goods where, following an examination, it is necessary to carry out further enquiries investigations that might lead to their seizure. If there were no other power of detention, then detention on the basis of suspicion would be unlawful in all cases where the suspicion turned out to be unfounded, and this would be problematic in terms of compliance with EU law and Convention standards on legal certainty [24]. In neither case however had it been argued that the power to detain could have a source other than section 139(1). But customs officers have long had a statutory power to examine goods in order to determine the duty payable or whether the goods are liable to forfeiture. Prior to the enactment in the Customs and Excise Act 1952 of the power to detain goods liable to forfeiture, the courts interpreted customs officers' statutory powers of examination as including, by necessary implication, an authority to detain goods on reasonable suspicion for such time as was reasonably necessary in order to make enquiries allowing officers to make their determination [26 35]. When enacting the 1952 Act, Parliament did not impliedly abolish that power of detention, which is not conditional upon the goods being liable to forfeiture [37; 52]. In Eastenders, the officers were entitled to detain the goods for a reasonable period in order to complete their enquiries; they were carrying out a lawful inspection of the goods for the purpose of determining whether the appropriate duties had been paid, and had reasonable grounds to suspect that they had not been [49]. In First Stop, the officers' examination was not completed until the necessary enquiries had been made, and the power of examination impliedly included an ancillary power of detention for a reasonable time while these enquiries were undertaken [50 51]. Detention in both cases was therefore lawful. The section 144(2) costs protection did not apply as both judicial review applications ought to have been dismissed. The parties are invited to make submissions on costs on the basis that the court possessed its ordinary costs discretion [52 55].
In 1999, the first appellant established a business providing support for young people leaving care. In 2002, she sold a 50% interest to Mr and Mrs Costelloe. The respondent company, One Step (Support) Ltd (One Step) was incorporated as the vehicle for this transaction. In 2004, relations began to deteriorate between the first appellant and the Costelloes. In August 2006, Mrs Costelloe served a deadlock notice under the shareholders agreement, requiring the first appellant either to buy her shares or to sell her own for a certain price. The first appellant opted to sell her shares in One Step to the Costelloes for 3.15m. Both appellants agreed to be bound for three years by restrictive covenants prohibiting them from competing with One Step or from soliciting its clients. In 2004, without the Costelloes knowledge, the appellants had incorporated a new company, called Positive Living. In 2007, Positive Living began trading, in competition with One Step. In 2010, the appellants sold their shares in Positive Living for 12.8m. In 2012, the claimant company issued the present proceedings for breaches of the restrictive covenants. The trial judge, Phillips J, found that the appellants had breached the restrictive covenants and that One Step was entitled to damages to be assessed on a Wrotham Park basis (for such amount as would notionally have been agreed between the parties, acting reasonably, as the price for releasing the defendants from their obligations) or alternatively ordinary compensatory damages. Wrotham Park damages, named after the case Wrotham Park Estate Co Ltd v Parkside Homes Ltd [1974] 1 WLR 798, and also known as negotiating damages1, refer to the sum that the claimant could hypothetically have received in return for releasing the defendant from the obligation which he failed to perform. The Court of Appeal upheld the decision of the trial judge. The appellants appealed to the Supreme Court on the question of damages. The Supreme Court allows the appeal on the basis that the courts below erred in their approach to the assessment of damages. The case should now return to the High Court for a hearing on quantum to measure the claimants actual financial loss. Lord Reed gives the main judgment, with which Lady Hale, Lord Wilson and Lord Carnwath agree. Lord Carnwath gives a concurring judgment. Lord Sumption gives a separate judgment, agreeing that the appeal should be allowed. 1 This is the term preferred by Lord Reed in his judgment at [3]. First principles Before considering negotiating damages for breach of contract, it is necessary to consider general principles relating to user damages in tort, damages in equity, and damages for breach of contract [24]. (i) User damages in tort: Damages assessed by reference to the value of the use wrongfully made of property, measured by what a reasonable person would have paid for the right of user (sometimes termed user damages), are readily awarded at common law for the invasion of property rights. Damages are available on a similar basis for the invasion of intellectual property rights [25 30, 95(1) (2)]. (ii) Damages in equity under Lord Cairns Act: Under section 2 of the Chancery Amendment Act 1858 (Lord Cairns Act), now re enacted in section 50 of the Senior Courts Act 1981, damages can be awarded in substitution for an injunction or specific performance where the court had jurisdiction to grant such a remedy when the proceedings were commenced. Damages on this basis are a monetary substitute for what is lost by the withholding of the remedy. One method of quantifying damages under this head is by reference to the economic value of the right which the court has declined to enforce. Such a valuation can be arrived at by reference to the amount which the claimant might reasonably have demanded in return for the relaxation of the obligation in question [41 47, 95(3) (5)]. (iii) Common law damages for breach of contract: Common law damages for breach of contract are intended to place the claimant in the same position as he would have been in had the contract been performed. They are therefore normally based on the difference between the effect of performance and non performance upon the claimants situation. Where the breach of a contractual obligation has caused the claimant to suffer loss, that loss should be measured or estimated as accurately and reliably as possible. The law tolerates imprecision, and there are different legal principles which can assist in estimating the claimants loss [31 40, 95(6) (9)]. Contract law damages cannot be awarded merely for the purpose of depriving the defendant of profits made as a result of the breach, except in exceptional circumstances, following Attorney General v Blake [2001] 1 AC 268 [35, 73, 82, 95(11)]. Contract law damages are not a matter of discretion. They are claimed as of right, and are awarded or refused on the basis of legal principle [36, 81, 95(12)]. Negotiating damages for breach of contract Lord Reed reviews the Wrotham Park line of cases at [48 90], dividing the caselaw into two phases. In the initial period, beginning with Wrotham Park, awards based on a hypothetical release fee were made in the exercise of the jurisdiction under Lord Cairns Act in substitution for injunctions to prevent interferences with property rights and breaches of restrictive covenants over land [49 63]. In the later period, awards calculated in a similar way were made at common law on a wider and less certain basis [83 90]. This later phase includes Experience Hendrix LLC v PPX Enterprises Inc [2003] EWCA Civ 323. Lord Reed expresses some doubts on the reasoning of Experience Hendrix, but supports the decision as it can be understood on an orthodox basis [89 90]. The two phases are divided by the case of Attorney General v Blake, in which the wider availability of hypothetical release fee awards was signalled, but the seeds of uncertainty were sown. However, although Wrotham Park was discussed in Attorney General v Blake, negotiating damages were not sought, and were not before the court [64 82]. The discussion above leads to the conclusion that negotiating damages can be awarded for breach of contract where the loss suffered by the claimant is appropriately measured by reference to the economic value of the right which has been breached, considered as an asset. The imaginary negotiation is merely a tool for arriving at that value. That value may be the measure of loss where the breach of contract results in the loss of a valuable asset created or protected by the right which was infringed, as in the case of the breach of a restrictive covenant or an intellectual property agreement. The rationale is that the claimant has in substance been deprived of a valuable asset, and his loss can therefore be measured by determining the economic value of the right in question, considered as an asset. The defendant has taken something for nothing, for which the claimant was entitled to require payment [91 93, 95(10)]. The present case Applying these conclusions to the present case, both the trial judge and the Court of Appeal adopted a mistaken approach [96 97]. The substance of the claimants case is that it suffered financial loss in the form of lost profits and goodwill. Though difficult to quantify, this is a familiar type of loss, which can be quantified in a conventional manner. The claimants did not suffer the loss of a valuable asset created or protected by the right which was infringed. Accordingly, the case should be remitted for the judge to measure the financial loss which the claimant has actually sustained. If evidence is led in relation to a hypothetical release fee, it is for the judge to determine its relevance and weight, if any. However, such a fee is not itself the measure of the claimants loss in a case of the present kind [96 100]. The other judgments Lord Sumption would also allow the appeal. He considers that damages based on a notional release fee may be awarded in three categories of cases: (i) where the claimant has an interest, such as a property right, or the governments interest in Attorney General v Blake, which extends beyond financial reparation [110 111]; (ii) where the claimant would be entitled to the specific enforcement of his right, and the notional release fee is the price of non enforcement [112 114]; and (iii) where the notional price of a release may be relevant as an evidential technique for estimating the claimants loss, such as in cases of patent infringement [115 123]. The present case may fall into this third category [106]. Lord Sumption would modify the declaration of the judge accordingly [124]. Lord Carnwath agrees with Lord Reeds analysis and takes issue with certain aspects of Lord Sumptions analysis [133 137]. Lord Carnwath also considers the impact of the reasoning on other areas of the law concerning compensation for statutory interference with property rights [138 152], and makes some observations on the date of assessment of negotiating damages in different types of cases [153 159].
These appeals concern a little used provision in article 1F(c) of the Geneva Convention on the Status of Refugees. This excludes from protection any person with respect to whom there are serious reasons for considering thathe has been guilty of acts contrary to the purposes and principles of the United Nations. Both appellants have been refused the grant of refugee status by the respondent on this ground. Al Sirri is a citizen of Egypt who arrived in the UK in 1994. The facts relied on for the refusal of his asylum claim included his possession of and contribution to books connected with Al Qaeda and other proscribed organisations and his alleged involvement in the murder of General Masoud in Afghanistan in 2001. The issue raised by his case is whether all activities defined as terrorism by United Kingdom domestic law are for that reason acts falling within article 1F(c), or whether such activities must constitute a threat to international peace and security. DD is a citizen of Afghanistan who came to the UK in 2007. His claim for asylum was based on his fear of persecution as the brother of the leader of forces allied with the Taliban, who had fought against both the Afghan government and the UN mandated International Security Assistance Force (ISAF). In his case the question is whether armed insurrection against not only the incumbent government but also a UN mandated force supporting that government falls within article 1F(c). In both appeals the issue also arises as to what is meant by serious reasons for considering a person to be guilty of the act in question. The appellants appealed against the respondents refusal to grant asylum. On 18 March 2009 the Court of Appeal set aside the determination of the Asylum and Immigration Tribunal (AIT) in Al Sirris case and remitted it to be determined afresh omitting certain matters on which the respondent had sought to rely. DD was initially successful in his appeals but the Court of Appeal remitted his case for reconsideration by the Upper Tribunal because the AIT had failed to consider DDs individual responsibility and whether he fell within article 1F(c). Both appellants have nonetheless pursued an appeal to the Supreme Court in order to challenge the approach of the Court of Appeal to the interpretation of article 1F(c) in a number of respects. The Supreme Court unanimously dismisses both appeals. Both cases will now be remitted to the relevant tribunal for reconsideration in accordance with the orders of the Court of Appeal. In the case of Al Sirri the guidance given to that tribunal should be in line with the judgment of the Supreme Court. The judgment is given by Lady Hale and Lord Dyson, with whom the other justices agree. The general approach to article 1F(c) Article 1F(c) should be interpreted restrictively and applied with caution. There should be a high threshold defined by the gravity of the act in question, the manner in which the act is organised, its international objectives and its implications for international peace and security. There should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character [16]. International dimension It is clear that the phrase acts contrary to the purposes and principles of the United Nations must have an autonomous meaning and member states are not free to adopt their own definitions. There is as yet no internationally agreed definition of terrorism. It was appropriately cautious therefore to adopt paragraph 17 of the United Nations High Commissioner for Refugees (UNHCR) Guidelines which provided that article 1F(c) was only triggered in extreme circumstances by activity which attacks the very basis of the international communitys co existence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between States, as well as serious and sustained violations of human rights would fall under this category [36 38]. It could be enough if one person plotted in one country to destabilise another. The test was whether the resulting acts had the requisite serious effect upon international peace [40]. Armed insurrection against UN mandated forces DD had been engaged in fighting against ISAF in Afghanistan. ISAF was an armed force under the lead command of individual nations authorised by the UN from 2001, and was distinct from the United Nations Assistance Mission in Afghanistan (UNAMA), which was established in 2002 as a peacekeeping force. Both ISAF and UNAMA had the same objective to maintain peace and security in Afghanistan. DD argued that simple participation in an attack against UN mandated forces did not engage article 1F(c). The Supreme Court agreed that the protection for ISAF against attack was not the same as for peacekeeping forces. This was not however material to the issue under article 1F(c) which was to be judged under the same principle in paragraph 17 of the UNHCR Guidelines quoted above [66]. The fundamental aims and objectives of ISAF accorded with the purposes stated in the UN Charter and DD was seeking to frustrate that purpose [68]. Standard of proof This issue arose in acute form in Al Sirri. Al Sirri had been indicted at the Old Bailey in relation to the murder of General Masoud but the charge was dismissed on the ground that the evidence was as consistent with his innocence as it was with his guilt. Article 1F(c) required that there be serious reasons for considering that the asylum seeker had been guilty of the acts. This had an autonomous meaning, and was not the same as the criminal standard of proof beyond reasonable doubt, or any domestic standard. Serious reasons was stronger than reasonable grounds, strong or clear and credible evidence had to be present and the considered judgment of the decision maker was required. The reality was that there were unlikely to be sufficiently serious reasons for considering an applicant to be guilty unless the decision maker could be satisfied that it was more likely than not that he was. But the task of the decision maker was to apply the words of article 1F(c) in the particular case [75].
The central question in these two appeals is whether statements by the Secretary of State of her policy as regards the granting of concessions outside the immigration rules and of changes to it amount to statements as to the practice to be followed within the meaning of section 3(2) of the Immigration Act 1971 (the 1971 Act) which requires her to lay such statements before Parliament [1]. In March 1996, the Secretary of State introduced Deportation Policy 5/96 (DP5/96) relating to cases involving children with long residence in the UK [9]. On 24 February 1999, this was revised so as to introduce the general presumption that enforcement action (broadly, deportation) would not normally proceed in cases where a child, either from birth or an early age, had accumulated 7 years or more continuous residence in the UK [11]. On 9 December 2008, the Minister for Borders and Immigration announced the immediate withdrawal of DP5/96 [13]. The introduction, revision and withdrawal of DP5/96 were not laid before Parliament. The Appellants, Mr Rahman and Mr Munir are citizens of Bangladesh and Pakistan respectively. Mr Rahman entered the UK with his wife and two children in 2001. His visitors visa expired in February 2002 and his application for an extension of his leave was refused in March 2003. He remained in the UK unlawfully after that date. On 20 July 2009, he applied for indefinite leave to remain. This application was refused on 12 February 2010 on the ground that he did not satisfy the test for indefinite leave to remain under the relevant immigration rule [14]. Mr Munir entered the UK with his wife and daughter in August 2002 on a visitors visa, which expired in January 2003. They remained unlawfully after that date. They had a son together in 2005. On 27 November 2009, they applied for indefinite leave to remain. The application was refused on 18 June 2010 [16]. Mr Rahman and Mr Munir claimed judicial review of the Secretary of States refusal of their applications, seeking to rely on DP5/96 among other grounds. Mr Rahmans claim was allowed by the judge on the basis that he and his family had been resident in the UK for more than 7 years before the withdrawal of the policy and that it was irrational and unfair for the Secretary of State to withdraw DP5/96 in a way which prevented persons already in the UK who had built up at least 7 years residence prior to the withdrawal of the policy from benefiting from it [15]. Mr Munirs claim failed because neither of his children had been resident in the UK for a continuous period of 7 years before the withdrawal of DP5/96 [17]. Prior to the appeals to the Court of Appeal, the Secretary of State reconsidered the cases and decided not to enforce removal because of the length of time since the original decisions, but she decided to proceed with the appeals because of the importance of the central question referred to above [18]. The Court of Appeal allowed the Secretary of States appeal in Rahmans case and dismissed Mr Munirs appeal. Mr Munir and Mr Rahman appeal to the Supreme Court. The Supreme Court unanimously dismisses the appeals. The source of concessionary policies is the 1971 Act and not the Royal prerogative. However, DP5/96, being an amply flexible statement that a rule may be relaxed depending on all the circumstances of the case, is not a rule within the meaning of s.3(2) of the 1971 Act and the Secretary of State did not have to lay it before Parliament. Lord Dyson gives the leading judgment with which Lord Hope, Lord Walker, Lord Clarke and Lord Wilson agree. The power to make immigration rules under the 1971 Act derives from the Act itself and is not an exercise of the Royal prerogative. The purpose of the 1971 Act was to replace earlier laws with a single code of legislation on immigration control. While there is no provision in the 1971 Act which in terms confers on the Secretary of State the power or imposes on her the duty to make immigration rules, it is implicit in the language of the Act that she is given such a power and made subject to such a duty under the statute itself [21] [33]. The Court therefore rejects the Secretary of States submission that, if a concessionary policy such as DP5/96 is a rule as to the practice to be followed in the administration of the 1971 Act, there is no legal obligation on the Secretary of State to lay it before Parliament [41]. If a concessionary policy statement says that the applicable rule will always be relaxed in specified circumstances, it may be difficult to avoid the conclusion that the statement is itself a rule within the meaning of s.3(2) of the 1971 Act which should therefore be laid before Parliament. But if the statement says that the rule may be relaxed if certain conditions are satisfied, but that whether it will be relaxed depends on all the circumstances of the case, then it does not fall within the scope of s.3(2) [45]. DP5/96 was not a statement as to the practice to be followed within the meaning of section 3(2). It made clear that it was important that each case had to be considered on its merits and that certain specified factors might (not would) be of particular relevance in reaching a decision. It was not a statement as to the circumstances in which overstayers would be allowed to stay. It did not therefore have to be laid before Parliament [45]. While the Court rejects the Secretary of States submission that the issuing of a concessionary policy (or indeed the waiving of a requirement in the rules in an individual case) is an exercise of prerogative power which for that reason does not come within the scope of s.3(2), the Secretary of State is authorised by the 1971 Act to make policies setting out the principles by which she may, as a matter of discretion, grant concessions in individual cases to those seeking leave to enter or remain in the UK. The less the flexibility inherent in the concessionary policy, the more likely it is to be a statement as to the practice to be followed within the meaning of section 3(2) and therefore an immigration rule. But DP5/96 was amply flexible and was therefore not an immigration rule and did not have to be laid before Parliament [46].
The question raised in these appeals is whether decisions to keep the appellant prisoners in solitary confinement (also known as segregation) for substantial periods were taken lawfully. The decisions were made under the Prison Act 1952, rule 45 of the Prison Rules 1999 and PSO 1700, a non statutory document issued by the Secretary of State. Rule 45, paragraph (1) enables the governor of the prison to arrange for the prisoner to be segregated. Paragraph (2) provides that the prisoner shall not be segregated under the rule for more than 72 hours without the authority of the Secretary of State and that authority given under this paragraph shall be for a period not exceeding 14 days. In 2010 the first appellant, Kamel Bourgass, was serving a life sentence in HMP Whitemoor. On 23 April 2010 a prisoner who had previously assaulted Bourgass was himself assaulted. Bourgass was not present. He was segregated under rule 45(1) on the orders of the challenging prisoners manager, Mr Colley. The reason given was investigation into a serious assault. He remained in segregation for seven months. His continued segregation after 72 hours was purportedly authorised under rule 45(2), in accordance with PSO 1700, by various prison officers chairing the prisons Segregation Review Board (SRB), including Mr Colley. Authority for his segregation was accompanied by the same reason on a number of occasions, i.e. investigation of the assault. In May 2010 the police indicated that they did not regard Bourgass as a suspect in connection with the assault. After that another reason given for continued segregation was that the prison was referring Bourgass to the Close Supervision Centre (CSC). Bourgasss representatives initiated judicial review proceedings. In his response of June 2010 the Secretary of State said that Bourgass was segregated not only because of the assault but because he is considered to pose an unacceptable risk on normal location. It was alleged that he had been intimidating other prisoners to change faith. On 2 August 2010 the Secretary of State filed detailed grounds of defence to the judicial review claim, disclosing that on the morning prior to the assault, Bourgass had been seen on CCTV speaking to the perpetrator. This had not been disclosed previously. The Secretary of State also filed a witness statement repeating the suspicions about the assault and intimidation. In September 2010 the CSC decided not to accept Bourgass, stating that there was insufficient evidence to support the allegations. Segregation continued to be authorised until Bourgass was transferred to HMP Woodhill in November 2010. The second appellant, Tanvir Hussain, was serving a life sentence in HMP Frankland. On 26 April 2010 he was placed in segregation under rule 45(1) on the orders of the residential governor Mr Greener, following an incident in which another prisoner was seriously injured. He remained in segregation for six months. His continued segregation after 72 hours was purportedly authorised under rule 45(2), in accordance with PSO 1700, by various prison officers chairing the SRB, including Mr Greener. The reasons given were the assault, police and prison investigations into it, and, later, the risk of reprisals from other prisoners. Judicial review proceedings were initiated. On 30 July 2010 the Secretary of State submitted detailed grounds of defence and a witness statement of Mr Greener, stating that Hussain was initially segregated because of the assault and the risk he posed to others. Another reason was intelligence linking Hussain with converting other prisoners in segregation to his interpretation of Islam (an allegation which the prison subsequently withdrew). In October 2010 Hussain was transferred to HMP Wakefield. The applications for judicial review focused on issues of procedural fairness. They were dismissed by the High Court. Appeals to the Court of Appeal were dismissed. The Supreme Court unanimously allows the appeals and grants a declaration in each case that the appellants segregation beyond the initial period of 72 hours was not authorised, so was unlawful. Lord Reed gives a judgment with which Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agree. There are two issues: whether the segregation was lawfully authorised, and whether the procedure followed met the requirements of fairness under the common law and, if applicable, article 6(1) of the European Convention on Human Rights. On the first issue, the decisions taken under rule 45(2) were not taken by the Secretary of State, but by the senior prison officer or operational manager chairing the SRB, in accordance with PSO 1700. The argument was that the decision of the operational manager was the decision of the Secretary of the State, by virtue of the Carltona principle. [44 46, 58, 60, 72] Under the Carltona principle, a decision of a departmental official is constitutionally the decision of the minister himself. [48 49] However, the relationship between governors and other prison officers on the one hand, and the Secretary of State on the other, is the subject of specific legislation: this is not readily reconciled with the idea that prison governors and other officers are constitutionally indistinguishable from the Secretary of State. [55] Prison governors are the holders of an independent statutory office. In both the 1952 Act and the Rules there are provisions imposing duties specifically on the governor or prison officers and provisions that confer separate powers on the Secretary of State. It is clear that the relationship between the governor, or his officers, and the Secretary of State bears no resemblance to the relationship between a minister and his officials. [58 60, 64] Neither can perform the functions properly belonging to the other. Rule 45(2) is intended to provide a safeguard for the prisoner against excessively prolonged segregation by the local prison management. It can only operate as a safeguard if it ensures that segregation does not continue for a prolonged period without being considered by officials who are independent of the prison. It follows that the Carltona principle cannot apply to rule 45(2) so as to enable a governor to take the decision on the Secretary of States behalf. [88 89] That is sufficient to allow the appeals, but it is also appropriate to consider the second issue, procedural fairness: first, the prisoners right to make representations and second, the scope of judicial review of decisions under rule 45(2), and its compatibility with article 6(1) ECHR. [91] Common law fairness requires that a prisoner should normally have a reasonable opportunity to make representations before a decision is taken to authorise continued segregation. He must therefore normally be informed of the substance of the matters on the basis of which the authority of the Secretary of State is sought. In the present cases, more could and should have been said. [98, 100] As to whether the decisions to authorise continued segregation fall within article 6(1), so that the prisoner is entitled to a hearing before an independent and impartial tribunal, this depends on whether the decision involves the determination of a civil right recognised by English law. [117] A prisoner does not possess any private law right to association, or any precisely defined entitlement as a matter of public law. Article 6(1) therefore does not apply. In any event judicial review could meet the requirements of article 6(1) in this context. [122 126]
The Respondents, Barratt Homes Limited, were engaged in building a substantial development of homes and a primary school in Llanfoist, near Abergavenny in Monmouthshire. They sought to exercise the right of a property owner under s 106 Water Industry Act 1991 to connect the drains to the public sewer at a point close to the development. The appellant sewerage undertakers, Welsh Water, argued that it was entitled to insist on a connection at point some 300m further downstream, as the sewer did not have the capacity to deal with the increased load until that point. Welsh Water succeeded in the High Court but the decision was reversed on appeal and Barratt Homes made the connection at the place of its choice. Welsh Water pursued an appeal to the Supreme Court, seeking to establish that s 106 gave a sewerage undertaker the right to refuse to permit connection to the public sewer at an unsuitable point. The Supreme Court dismissed the appeal (Lady Hale dissenting). The judgment of the majority was given by Lord Phillips. The exercise of the right of a property owner to discharge into a public sewer pursuant to s 106 Water Industry Act 1991 (the 1991 Act) was an absolute right which could not be prevented on the ground that the additional discharge would create a nuisance. That was for the sewerage undertaker to deal with [paras 23 26]. The right to object to the mode of construction in s 106(4) did not extend to the point of connection [para 32]. It was significant that in nearly a century and a half since the first enactment conferring this right was passed, this was the first dispute between an owner and sewerage undertaker as to the point of connection to a public sewer to have reached the courts [para 38]. The real problem behind the dispute in this case lay in the requirement to give only 21 days notice to a sewerage undertaker before exercising the absolute right in s 106. This was manifestly unsatisfactory in relation to a development which in this case would add 25% or more to the load on the public sewer [para 41]. The only way to achieve a deferral of the right was through the planning process, in which both the sewerage undertaker and OFWAT should be consulted. More thought might need to be given to the interaction of planning and water regulation systems under modern law to ensure that the different interests were adequately protected [paras 57 58]. The 21 day limit for refusing applications to connect to the public sewer in s 106(4) was mandatory, in view of the fact that it was a criminal offence to connect a drain after such notice had been given [para 62]. Lady Hale would have allowed the appeal on the construction of s 106(4). The legislative history led her to conclude that Parliament had not intended to cut down the scope of the local authoritys power to control the place and manner of connection in the Public Health Act 1936 (the predecessor to the 1991 Act), while leaving the position in Scotland unchanged [para 73]. The words mode of construction or condition in s 106(4) should be interpreted as including the place of connection to the public sewer [para 79].
These appeals concern whether the criminal courts are prevented from trying certain former Members of Parliament on charges relating to expenses claims on the basis that the proceedings would infringe parliamentary privilege. The three Appellants, Mr Morley, Mr Chaytor and Mr Devine have been committed for trial in the Crown Court on charges of false accounting, contrary to section 17(1)(b) of the Theft Act 1968. The charges relate to claims for parliamentary expenses and are alleged to have been committed when each Appellant was a serving member of the House of Commons. The claims concerned mortgage payments, IT services, rent for accommodation, cleaning and maintenance services, and the supply of stationery. A fourth defendant, Lord Hanningfield, who is a member of the House of Lords, faces similar charges. The system for payment of Members of Parliaments allowances and expenses, as it existed at the relevant time, was created by Resolutions of the House of Commons and overseen by the Members Estimate Committee. The Fees Office received and considered claim forms and made payments in relation to claims. The claim forms which are the subject matter of all the charges were submitted to the Fees Office and contained a declaration, signed by the Member, confirming that the costs were incurred exclusively for the purpose of performing duties as a Member of Parliament. Each Appellant is facing a separate trial but all have raised a common point of law, namely that criminal proceedings cannot be brought because they would infringe parliamentary privilege. The claim to privilege has two bases. The first is Article 9 of the Bill of Rights 1689, which provides: That the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament. The second is described alternatively as the exclusive cognisance or exclusive jurisdiction of Parliament and refers to the right of each House to manage its own affairs without interference from the other or from outside Parliament. It is a privilege which is wider than, and embraces, Article 9. A single preparatory hearing was held to consider the point of law. The judge ruled against the Appellants and Lord Hanningfield, and the Court of Appeal upheld that decision. The Appellants appealed to the Supreme Court. Lord Hanningfield did not appeal but was granted permission to intervene on a limited basis. On 10 November 2010 the Supreme Court ordered that each of the three appeals be dismissed, with reasons to follow. The Court now delivers those reasons. The Supreme Court unanimously dismisses the appeals. Lord Phillips (President) and Lord Rodger give the lead judgments. The Court holds that neither Article 9 nor the exclusive jurisdiction of the House of Commons poses any bar to the jurisdiction of the Crown Court to try the Appellants. The issue under Article 9 was whether making claims for parliamentary expenses fell within the phrase proceedings in Parliament. The Court held that conduct of a Member is not privileged merely because it occurs within the House of Commons. The principal matter to which Article 9 is directed is freedom of speech and debate in the Houses of Parliament and parliamentary committees. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament. On this basis, submission of expenses claims does not qualify for the protection of privilege. Scrutiny of claims by the courts will not inhibit freedom of speech or debate. The only thing that it will inhibit is the making of dishonest claims: [48]. Parliament has expressed the same conclusion and although the extent of parliamentary privilege is ultimately a matter for the courts, it is one on which the courts will pay careful regard to the views of Parliament: [16]; [59]. There are also good policy reasons for giving Article 9 a narrow ambit, namely that its protection is absolute and, where it applies, it denies redress to those injured by civil wrongdoing and prevents Members being prosecuted for conduct which is criminal, despite the fact that Parliament has only limited penal powers of its own: [61]. On the exclusive jurisdiction issue, Parliament has to a large extent relinquished any claim to have exclusive jurisdiction over the administrative business of the two Houses. Nor does Parliament assert an exclusive jurisdiction to deal with criminal conduct within the walls of Parliament, even where it relates to or interferes with proceedings in committee or the Houses. The courts and Parliament have different, overlapping, jurisdictions. Parliament can hear proceedings for contempt of Parliament and a court can try the offender for the crime. The area of activity to which the present prosecutions relate is administrative: it concerns the implementation of the expenses scheme, not the decisions of parliamentary committees in respect of the scheme itself. The expenses scheme merely provides the setting for the alleged offences and there is nothing in the allegations against the Appellants which relates to the core activities of Parliament, namely the legislative and deliberative processes, however widely construed. The House of Commons has asserted a disciplinary jurisdiction over expenses claims and has set up a review of such claims under Sir Thomas Legg. It has not, however, asserted exclusive jurisdiction. On the contrary, it has co operated with the police investigation and excluded from the claims referred to Sir Thomas Legg any that are under investigation by the police: [89] [92]; [122] [123]. For these reasons, the Court held that the prosecutions neither infringed Article 9 nor impinged upon the exclusive jurisdiction of Parliament.
On 9 November 2016 the Supreme Court gave judgment in a series of judicial review claims concerning Regulation B13 of the Housing Benefit Regulations 2006, which governed the removal of the spare room subsidy, otherwise known as the bedroom tax (R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58 (Carmichael SC)). It declared that where there was a transparent medical need for an additional bedroom, which was not catered for in regulation B13 (5) and (6), there was unjustified discrimination on the ground of disability, contrary to article 14 of the European Convention on Human Rights (the Convention). Regulation B13 was amended in 2017 by Parliament to reflect the ruling, but this was not retrospective. The principal question arising in this appeal is the effect of the Supreme Courts decision in Carmichael SC on decision makers in the housing benefit system local authorities, and the First tier Tribunal (FTT) and the Upper Tribunal (UT) hearing appeals from local authority decisions in claims relating to periods before the amendment. A second issue is whether account should be taken of any discretionary housing payments (DHPs) received by the claimant during the period, if the deduction to housing benefit should not have been applied. RR lives with his severely disabled partner in a two bedroomed social housing property for which he claims housing benefit. They require separate bedrooms because of her disabilities and her need to accommodate medical equipment and supplies. In 2013 his local authority applied the discount to his housing benefit required by Regulation B13. He appealed to the FTT which found that he had suffered unjustified discrimination. To avoid this discrimination the FTT held that regulation B13(5)(a) should be read so as to apply to persons in RRs position, pursuant to s 3 of the Human Rights Act 1988 (HRA). The respondent Secretary of State appealed to the UT. The appeal was stayed while a similar appeal by Mr Carmichael proceeded to the UT and then to the Court of Appeal. The UT held that the FTTs reading of regulation B13(5)(a) was impermissible but reached the same result by holding that the decision to make a deduction from Mr Carmichaels housing benefit was a clear breach of his Convention rights, contrary to s 6(1) HRA (Carmichael UT). The Court of Appeal reversed that decision. The stay in RRs case was then lifted and the Secretary of States appeal was allowed by the UT. The UT granted RR a leapfrog certificate under s 14A Tribunals, Courts and Enforcement Act 2007, enabling him to appeal directly to the Supreme Court. The Supreme Court unanimously allows the appeal against the local authoritys decision. It orders that RRs housing benefit is to be recalculated without making the under occupancy deduction of 14%, in order to avoid a breach of RRs rights under the Convention, contrary to s 6(1) HRA. Lady Hale gives the only reasoned judgment. It is not unconstitutional for a public authority, court or tribunal to disapply a provision of subordinate legislation which would otherwise result in their acting incompatibly with a Convention right, where this is necessary in order to comply with the HRA. Subordinate legislation is subordinate to the HRA, which is an Act of Parliament [27]. The HRA draws a clear and careful distinction between primary and subordinate legislation, both in s 6 (the requirement for public authorities to act compatibly with Convention rights) and in s 3 (the interpretative obligation) [28]. Primary legislation which cannot be read or given effect compatibly with Convention rights must still be given effect under the exception in s 6(2), but this exception does not extend to subordinate legislation, where there is no primary legislation preventing removal of the incompatibility [29]. The courts have consistently held that, where it is possible to do so, a provision of subordinate legislation which results in a breach of a Convention right must be disregarded, if it is possible to do so without affecting the statutory scheme [18 23, 30]. A decision maker must find that a claimant who is unjustifiably discriminated against is entitled to the housing benefit he would have received if the discrimination had not occurred [30]. Otherwise the local authority or court would be acting in a manner which s 6 HRA declares to be unlawful [32]. On the question of whether any DHPs received by the appellant should be deducted from the housing benefit to which he is entitled as a result of this decision, the parties were agreed as to the position. The appeal concerns the initial decision made by the local authority to make a deduction under regulation B13 to the appellants housing benefit. At that stage no question of DHPs could have arisen and the only question was entitlement to housing benefit. It is for the local authority to consider whether there are any steps which they can or wish to take to recover any DHPs [33 34]. It follows that the Supreme Court should make the same order as the UT made in Carmichael UT for the same reason as the UT gave in that case [35].
Rule 5.4C of the Civil Procedure Rules (CPR) provides that a person who is not a party to proceedings may obtain from the court records copies of a statement of case and judgment or orders made in public, and, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person. This appeal concerns the scope of Rule 5.4C, and whether the court has an inherent power to order access to documents for non parties outside this provision. Cape Intermediate Holdings Ltd (Cape), a company that was involved in the manufacture and supply of asbestos, was a defendant in a trial in the High Court to claims brought by employers insurers. Voluminous documentation was available to the court during the trial. After the trial had ended, but before judgment was delivered, the claims were settled. The Asbestos Victims Support Groups Forum UK (the Forum), which was not a party to the proceedings, applied to the court under Rule 5.4C for access to all documents used at or disclosed for the trial, including trial bundles and transcripts. The Master held that she had jurisdiction either under Rule 5.4C or at common law to grant the order sought. The Court of Appeal allowed an appeal by Cape, limiting the disclosure to the Forum to (i) statements of case held by the court pursuant to Rule 5.4C; (ii) provision by Cape of witness statements, expert reports and written submissions, and (iii) ordering that the application for further disclosure be listed before the trial judge or another High Court judge to decide whether any other documents had lost confidentiality and had been read out in court or by the judge, or where inspection by the Forum was necessary to meet the principle of open justice. Cape appealed to the Supreme Court, arguing that the disclosure should have been limited to the statements of case held on the court file; that the scope of any inherent jurisdiction of the court was very limited and could only extend to skeleton arguments or written submissions relied on in court; and that the Forum did not have a legitimate interest based on the public interest in open justice in the content of the documents it was seeking. The Forum cross appealed on the ground that the Court of Appeal had been wrong to limit the scope of Rule 5.4C in the way that it did. The Supreme Court unanimously dismisses the appeal and cross appeal. In a judgment of the court, the Supreme Court upholds orders (i) and (ii) of the Court of Appeal and replaces (iii) with an order that the application be listed before the trial judge (or another High Court judge if he is unavailable) to determine whether the court should require Cape to provide a copy of any other document placed before the judge and referred to in the course of the trial to the Forum (at the Forums expense) in accordance with the principles laid down in the judgment. Rule 5.4C refers to the records of the court. The CPR do not define this term or provide what the records of the court are to contain. The essence of a record is something which is kept. It must therefore refer to documents kept for the courts own purposes, presently at least the claim form and the judgments or orders which resulted, but not every document lodged or held for the time being at court. However current practice in record keeping cannot determine the scope of the courts power to order access to materials to non parties, which is informed by the principle of open justice, not the practical requirements of running a justice system [19 24]. The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. They all have inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before them. The extent of any access permitted by the courts rules is not determinative (except where they contain a valid prohibition) [41]. The principal purposes of the open justice principle are two fold: to hold individual courts and judges to account, and to enable the public to understand how the justice system works and why decisions are taken. Now that much more of the argument and evidence is reduced to writing before a hearing it is difficult for non parties to follow what is going on without access to the written material, including documents [42 43]. The default position is that the public should be allowed access, not only to the parties submissions and arguments, but also to the documents which have been placed before the court and referred to during the hearing, which are not limited to those the judge has been asked to or has said that he has read [44]. It does not follow, however, that an applicant has a right for access to be granted (save to the extent that the rules grant such a right). A non party seeking access must explain why he seeks it and how granting access will advance the open justice principle. The court will carry out a fact specific balancing exercise to take account of any countervailing principles, such as the need to protect national security, privacy interests or commercial confidentiality. The practicalities and proportionality of granting the request will also be relevant, especially when proceedings are over [45 47]. In the present appeal and cross appeal, both parties submissions are therefore incorrect. The Court of Appeal did have inherent jurisdiction to make the order it did, to support the open justice principle, and it could have made a wider order if it were right to do so. The basis for the order is not Rule 5.4C [49]. There seems no realistic possibility of the judge making a more limited order than the Court of Appeal, so the orders for access already made will stand, while the balance of the application be listed before the trial judge (or another High Court judge if that is not possible) to determine whether the court should require Cape to provide a copy of any other document placed before the judge and referred to in the course of the trial to the Forum, at the Forums expense, in accordance with the principles laid down in the judgment [50]. By way of postscript, the Supreme Court urges the bodies responsible for framing the court rules in each part of the United Kingdom to give consideration to and consult on the questions of principle and practice raised by this case [51].
Between 2003 and 2008, John Worboys, the driver of a black cab in London, committed sexual offences against many women. The respondents were two of his victims and both reported their assault to the police. DSD was one of Worboys first victims. She was attacked in 2003. After her assault Worboys was not identified as her assailant. In NBVs case, following an attack in 2007, Worboys was quickly arrested as a suspect but released without charge. Following a review of sexual assault cases by police in February 2008, cases were identified which involved a particular modus operandi by the perpetrator. This resulted in a police media appeal. This led to DSD and NBV being identified as his victims. Many other women were also identified as being victims of his attack. Worboys was eventually convicted of 19 counts of sexual assault, including the assault on NBV. Both women brought proceedings against the police, alleging failure to conduct effective investigations into Worboys crimes. They claimed that these failures constituted a violation of their rights under article 3 of the European Convention on Human Rights (ECHR), which provides that no one shall be subjected to torture or inhuman or degrading treatment or punishment. The main issue was to what extent article 3 imposes a positive obligation on states effectively to investigate reported crimes perpetrated by private individuals. The High Court and the Court of Appeal held that a positive obligation to investigate did exist and that, in this case, this obligation had been breached. Compensation was awarded to the respondents. The Commissioner of Police of the Metropolis appealed to the UK Supreme Court, although it was accepted that, whatever the outcome of the appeal, recoupment of any of the compensation paid would not be sought. The Supreme Court unanimously dismisses the appeal. Lord Kerr gives the main judgment, with which Lady Hale agrees. Lord Neuberger agrees with Lord Kerr but also gives a judgment with which Lady Hale agrees. Lord Hughes and Lord Mance give separate judgments with differing reasons but agreeing with the outcome. The main area of dispute is the nature of the positive obligation imposed by article 3 of the ECHR, particularly the issue of whether the obligation relates only to systemic failures or whether it also includes operational failures [6]. Lord Kerr examines the ECHR case law supporting the existence of the positive obligation under article 3 and concludes that there is an operational duty to conduct a proper inquiry into behaviour amounting to a breach of article 3 [20, 54 58]. In order to be an effective deterrent, laws which prohibit conduct constituting a breach of article 3 must be rigorously enforced and complaints of such conduct must be properly investigated [24]. Deficiencies in investigations do not have to be part of a flawed approach of the system generally for a breach of article 3 to arise. It is clear, however, that errors must be serious in order to give rise to such a breach [29 30]. The ECtHR case law demonstrates a clear and constant line of authority to the effect that the state has a duty to conduct an effective investigation into crimes involving serious violence to the individual [44 48]. It has consistently been held that the positive obligation to investigate effectively is not solely confined to cases of ill treatment by state agents [59 62]. Lord Neuberger agrees with Lord Kerr that serious failures which are purely operational will suffice to establish a claim. ECtHR case law supports this approach. There is no basis in that case law for the suggestion that the investigatory duty should be limited to systemic, as opposed to operational, failures [85, 93]. Lord Hughes differs from this view in that he considers there is a positive obligation to ensure that there are appropriate legal structures in place but that there is no operational obligation. ECtHR case law leaves uncertainty as to the source and extent of the investigative duty [117]. The proper test for the positive obligation under article 3 to investigate reports of past violence is whether the state has a proper structure of legal and policing provision designed to punish it when it occurs and has administered that structure in good faith and with proper regard for the gravity of the behaviour under consideration. The test is not whether the investigation was careless or involved mistakes which ought not to have been made [127]. There is a breach of the positive obligation in this case as there were plain structural errors [140]. Lord Kerr considers that the fact that the police do not have a common law duty of care in tort does not extend to claims advanced under the Human Rights Act 1998 (HRA). The bases of liability are different and no assumption should be made that the policy reasons which underlie the exemption of police from common law liability apply in the same way to liability for breach of HRA obligations. The existence of a duty to investigate effectively does not depend on whether it is fair, just or reasonable to impose one [67 70]. Lord Hughes takes a different view and examines the public policy reasons why English law does not recognise a duty of care owed in tort by the police to individual citizens. Law enforcement and the investigation of alleged crime involve a complex series of judgments and discretionary decisions to re visit such matters step by step by way of litigation with a view to private compensation would inhibit the robust operation of police work. English law cannot control the operation of the ECHR, but there is a delicate balance to be struck and it is undesirable to permit detailed review of a particular criminal investigation by way of the ECHR, which is why the positive obligation should be confined to structural failings [131 132, 134]. Lord Mance considers that the distinction between operational and systemic failures has been replaced by a distinction between simple errors/isolated omissions and more serious failings, and emphasises that the positive obligation under article only relates to more serious failings [151].
In order to trade, sex shops in Westminster need a licence from Westminster City Council (Westminster) under schedule 3 of the Local Government (Miscellaneous Provisions) Act 1982, paragraph 19 of which provides that an applicant for the grant, renewal or transfer of a licenceshall pay a reasonable fee determined by the appropriate authority [1]. European Union law has placed limits upon the licence fees which can be charged. Article 13(2) of Directive 2006/123/EC, given domestic effect by regulation 18(4) of the Provision of Services Regulation 2009 SI No 2999, provides that the authorisation procedures and formalities for applicants shall not be dissuasiveand any charges which the applicants may incur from their application shall be reasonable and proportionate to the cost of the authorisation procedures in question and shall not exceed the cost of the procedures. Mr Hemming runs sex shops in the Westminster area under the name Simply Pleasure Ltd. Westminster has over past years required applicants for sex shop licences to pay with their applications a substantial sum (29,435 in 2011/12), broken down into a smaller amount (2,667 in 2011/12) relating to the processing of the application and a larger amount (26,435 in 2011/12) relating to the cost of administering and enforcing the licensing regime as a whole. The larger amount was refundable whenever an application failed [2]. Mr Hemming claims that this system was illegitimate under domestic and EU law. His primary case has been that there is no basis for requiring successful or unsuccessful applicants to meet the costs of administering and enforcing the regime. But he has also developed a secondary case, that there was no basis for requiring such costs to be paid with the applications, even on a refundable basis. The courts below agreed with Mr Hemmings primary case, holding that such costs had to be funded by an authority such as Westminster out of its general rates or other funds [4]. Westminster appeals to the Supreme Court, submitting that: (1) Under domestic law, paragraph 19 is wide enough to cover the fees it charged. (2) Under EU law, article 13(2) and regulation 18(4) are concerned only with charges made in respect of authorisation procedures and their cost. The refundable amounts are not a cost of the application but a cost of the application succeeding. (3) Alternatively, if that is wrong, then the authorisation procedures and formalities to which article 13(2) refers can be interpreted widely enough to include all aspects of the licensing scheme, including the costs of enforcing the scheme against unlicensed operators, so that the total sum required to be paid with applications can be regarded as a cost of such procedures and formalities. The Supreme Court, Lord Mance giving its unanimous judgment, allows the appeal in part but, on the critical question of whether it was lawful to require payment of the larger refundable amounts with the applications, makes a reference to the Court of Justice in Luxembourg. The Court concludes that: (1) Paragraph 19 of schedule 3 to the Local Government (Miscellaneous Provisions) Act 1982 enables a licencing authority to impose on an applicant a fee for the grant or renewal of a licence which covers the running and enforcement costs of the licensing scheme, to be payable either (a) at the time when the licence is granting; or (b) on a refundable basis, at the time when the application is lodged [7]. (2) Article 13(2) of Directive 2006/123/EC deals only with authorisation procedures and fees relating to applications for permission to access or exercise a service activity, such as operating a sex shop. It does not prevent the imposition on those who receive licences of proportionate charges to fund the cost of administering and enforcing the licensing regime [15] [17]. (3) As to the legitimacy of Westminsters system, it is helpful to distinguish between two types of scheme. Under Type A, applications for licences are made on terms that the applicant must, upon their application being granted, pay a fee to cover the cost of administering and enforcing the licensing regime. Under Type B, which represents the scheme actually adopted by Westminster, applications for licences are made on terms that the applicant must, at the time of making the application, pay a fee, refundable in the event that the application fails, to cover the cost of administering and enforcing the licensing regime [18]. (4) Type A schemes are permissible under regulation 18(4) of the Provision of Services Regulation 2009 SI No 2999 and article 13(2) of Directive 2006/123/EC, because they permit a licensing authority to charge a successful applicant with a proportionate part of the cost of administering and enforcing the licensing regime as a whole [19]. (5) Whether article 13(2) also permits Type B schemes is more problematic, because payment is required to be made by every applicant, albeit on a potentially refundable basis, at the time when the application is made. There was no evidence that a Type B scheme could or would have a potentially dissuasive effect upon applicants but it remains unclear whether it involves in law a charge incurred from the application, contrary to article 13(2) [20] [24]. (6) A reference to the Court of Justice is therefore required on whether and when a Type B scheme is consistent with article 13(2). The parties are invited to make proposals on the wording of the question to be referred [25].
This appeal raises a question concerning the role of the Supreme Court in relation to the principles governing the award of costs in lower courts. The Appellant, Mr Gourlay, is a prisoner serving a life sentence, the minimum term of which has expired. In 2014, the Parole Board decided not to direct his release on licence and not to recommend his transfer to open prison conditions. Mr Gourlay challenged those decisions on a claim for judicial review. The Parole Board did not take part in the proceedings. The High Court decided that the Parole Boards decision not to recommend Mr Gourlay for transfer to open conditions was unlawful. Upon his success, Mr Gourlay applied for an order requiring the Parole Board to pay the costs he incurred in bringing his claim for judicial review. The High Court decided not to make such an order, following the practice described in R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2755 (Davies): that, if a court or tribunal adopts a neutral stance in proceedings in which its decision is challenged, it will not be liable for the costs of the claim, unless there are exceptional circumstances. The Court of Appeal upheld the High Courts decision not to make an award of costs. Mr Gourlay appealed to the Supreme Court. He argued that the approach described in Davies is no longer correct, that it was wrongly treated by the Court of Appeal as a binding precedent, and that it does not apply to the Parole Board in any event. The Supreme Court unanimously dismisses the appeal. Lord Reed gives the sole judgment, with which the other Justices agree. Section 51 of the Senior Courts Act 1981 provides that the High Court and the Court of Appeal have discretion as to the award of costs, subject to the rules of court [21] [22]. The rules of court include the general rule that, if the court decides to make an order about costs, the unsuccessful party will be ordered to pay the costs of the successful party [23]. The rules of court do not, however, set out a comprehensive code [24]. It is also important that the appellate courts establish principles upon which the courts discretion as to the award of costs may, within the framework of the Senior Courts Act 1981 and the rules of court, be exercised [24]. Responsibility for the development of those principles falls principally upon the Court of Appeal [24]. Generally, such principles are matters of practice, rather than matters of law [24]. The Supreme Court will ordinarily be slow to intervene in matters of practice, including guidance given by the Court of Appeal as to the practice to be followed by lower courts in relation to the award of costs [36]. This is because the Supreme Court is generally less well placed to assess what changes in practice can appropriately be made [36]. The Supreme Court can intervene where there has been an error of law, but, bearing in mind the discretionary nature of decisions on costs, and the rarity of their raising any question of law of general public importance, appeals solely on costs are not ordinarily appropriate [36]. The counterpart of this restraint on the part of the Supreme Court is that the Court of Appeal must fulfil its primary responsibility for monitoring and controlling developments in practice [37]. In order to fulfil that responsibility, decisions on matters of practice should not be treated as binding precedents [37]. Otherwise, any departure from a previous decision could only be brought about by an appeal to the Supreme Court [37], and the Court of Appeal would be unable to respond flexibly to unusual situations, and reach a just result in each individual case [38]. Instead, it is appropriate for decisions of the Court of Appeal on matters of practice to be open to review by the Court of Appeal itself [39]. To avoid repeated arguments, potentially divergent decisions, and the attendant risk of inconsistency and incoherence, such decisions should be reviewed only where there is sufficient reason to do so: for example, where there has been a material change of circumstances [40]. In the present case, the High Court took full account of the arguments made on behalf of Mr Gourlay, and reached a decision which reflected established practice [44]. The question of whether the Parole Board falls within the scope of the practice described in Davies is itself a matter of practice: it is not determined abstractly or on the basis of definitions used for other purposes, such as the meaning given to the expression court or tribunal in the European Convention on Human Rights [44]. There is nothing in the Judges reasoning which was erroneous in law, or with which the Supreme Court would consider it appropriate to interfere as a matter of practice [44]. The Court of Appeal also did not commit any error of law [45]. In particular, its approach was not inconsistent with the rules of court [46]. The choice of a judicial or quasi judicial body to take a neutral position in court proceedings accords with principles of judicial independence and impartiality, and this cannot be what the framers of the rules of court had in mind when they referred to an unsuccessful party [46]. In addition, the Court of Appeal correctly recognised that the fact that a party is in receipt of legal aid cannot affect the principles on which the discretion to award costs is normally exercised [47] [48]. It also did not incorrectly treat itself as bound, as a matter of precedent, to follow the decision in Davies [42], [45]. The Court of Appeal could have proceeded on the basis that there was no good reason to review its recent decisions on this issue [42], [45]. Nonetheless, the Court considered Mr Gourlays submissions in full and gave detailed reasons for rejecting them on their merits [42], [45]. Insofar as the decision whether to award costs against the Parole Board turns on matters of practice, it would not be appropriate for the Supreme Court to impose on the Court of Appeal its own assessment of the merits of the parties arguments [49]. Mr Gourlays appeal must therefore be dismissed [50].
These proceedings concern three sets of claims which arise out of the deaths of three young British servicemen and the serious injuries of two other young British servicemen in Iraq. The first set (the Challenger claims) arise from a friendly fire incident involving British tanks which caused the death of Cpl Stephen Allbutt and the serious injury of Lance Cpl Daniel Twiddy and Tpr Andrew Julien. They are brought in negligence and allege failures by the Ministry of Defence (the MoD) to properly equip the tanks involved and to give soldiers adequate recognition training. The second set (the Snatch Land Rover claims) arise from the deaths of Pte Phillip Hewett (son of the claimant Susan Smith) and Pte Lee Ellis (father of the claimant Courtney Ellis and brother of the claimant Karla Ellis) by the detonation of improvised explosive devices level with the Snatch Land Rovers in which the soldiers were travelling. The claimants all claim that the MoD breached the implied positive obligation in article 2 of the European Convention on Human Rights (the Convention) to take preventive measures to protect life in the light of the real and immediate risk to life of soldiers who were required to patrol in Snatch Land Rovers. The third (the Ellis negligence claim) is brought by Courtney Ellis in negligence and is based on various alleged failures on the part of the MoD [1 12]. The MoD argued that the Snatch Land Rover claims under article 2 of the Convention should be struck out because at the time of their deaths Pte Hewett and Pte Ellis were not within the jurisdiction of the UK for the purposes of the Convention, and because on the facts as pleaded the MoD did not owe a duty to them at the time of their deaths under article 2. It also argued that the Challenger claims and the Ellis negligence claim should all be struck out (1) on the principle of combat immunity (which operates to exclude liability for negligence in respect of the acts or omissions of those engaged in active operations against the enemy), and (2) because it would not be fair, just or reasonable to impose a duty of care on the MoD in the circumstances of those cases [13]. The High Court and Court of Appeal considered these arguments. The effect of the Court of Appeals judgment was that: (1) the Snatch Land Rover claims under article 2 of the Convention should be struck out because the deceased were outside the jurisdiction of the UK for the purposes of the Convention and there was no basis for extra territorial jurisdiction; and (2) the Challenger claims and the Ellis negligence claim should proceed to trial [15]. The following issues were before the Supreme Court. (1) In relation to the Snatch Land Rover claims, whether at the time of their deaths Pte Hewett and Pte Ellis were within the jurisdiction of the UK for the purposes of the Convention. (2) If they were, whether and if so, the extent to which article 2 imposes positive obligations on the UK with a view to preventing the deaths of its own soldiers in active operations against the enemy. (3) In relation to the Challenger claims and the Ellis negligence claim, whether the allegations of negligence should be struck out because they fall within the scope of combat immunity or because it would not be fair, just or reasonable to impose a duty to take care to protect against death or injury in the circumstances [16]. The Court unanimously holds that, in relation to the Snatch Land Rover claims, Pte Hewett and Pte Ellis were within the UKs jurisdiction for the purposes of the Convention at the time of their deaths. By a majority (Lords Mance, Wilson and Carnwath dissenting), the Court holds that: (i) the Snatch Land Rover claims should not be struck out on the ground that the claims are not within the scope of article 2 of the Convention; and (ii) the Challenger claims and Ellis negligence claim should not be struck out on the ground of combat immunity or on the ground that it would not be fair, just or reasonable to extend the MoDs duty of care to those cases [101]. The effect of the Courts decision is that all three sets of claims may proceed to trial. Issue 1: Convention jurisdiction: In its judgment of July 2011 in the Al Skeini case, the European Court of Human Rights decided that six Iraqi civilians who had died as a result of the actions of British armed forces in Iraq were within the UKs jurisdiction for the purposes of the Convention. The judgment does not answer issue 1 directly, but elements can be extracted from it which point clearly to the conclusion that the Court reaches in this case. It formulates a relatively general principle that extra territorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual. It also indicated that Convention rights can be divided and tailored to the particular circumstances of the extra territorial act in question, as opposed to being an indivisible package. A states extra territorial jurisdiction over local inhabitants exists because of the authority and control that is exercised over them as a result of the authority and control that the state has over its own armed forces. They are all brought within the states jurisdiction by the application of the same general principle [42 52]. Issue 2: Snatch Land Rover claims under article 2 of the Convention: In this area, the court must fully recognise the wide margin of appreciation to be given to the state and avoid imposing obligations which are unrealistic or disproportionate. But it must give effect to those obligations where it would be reasonable to expect the individual to be protected by article 2. Policy decisions made at a high level of command and things done on the battlefield will fall outside the scope of article 2. But whether claims which are between these two categories are within the scope of article 2 will require the exercise of judgment in the light of the facts of each case [76]. The present claims provide only brief outlines of the claimants cases and they pre date developments in relevant case law on article 2. The circumstances in which the various decisions were made need to be inquired into before it can be determined with complete confidence whether or not there was a breach of article 2. However, given the Courts guidance on the margin of appreciation to be given to the state, it is far from clear that the claimants will be able to demonstrate such a breach [78 81]. Issue 3: Challenger claims and Ellis negligence claim: The doctrine of combat immunity should be construed narrowly and should not be extended beyond its established scope to the planning of and preparation for active operations against the enemy. The Challenger claims are not within the scope of the doctrine because they relate to decisions which are sufficiently far removed from the pressures and risks of active operations against the enemy. The Ellis negligence claim is less obviously directed to things done away from the theatre of battle so it is arguably within the doctrine. It would be premature for these claims to be struck out and the issue should be open to further argument in the light of the evidence [89 96]. The circumstances in which active operations are undertaken by the UKs armed services today vary greatly and cannot all be grouped under a single umbrella as if they were all open to the same risk of judicialising warfare. However, considerations similar to those affecting the Snatch Land Rover claims under article 2 arise in relation to whether it would be fair, just and reasonable to impose a duty of care on the MoD in this area. The question whether the negligence claims in this case entail subjecting the MoD to duties that are unrealistic or excessively burdensome cannot properly be determined without hearing evidence [98 100]. Minority judgments: Lord Mance (with whom Lord Wilson agrees) would have struck out all three sets of claims in their entirety, essentially because they are not suitable for resolution by a court [125 137, 146, 150 152]. For the same reasons, Lord Carnwath would have struck out the Challenger claims. However, he considered that the Snatch Land Rover claims were not necessarily excluded, because major combat operations had ceased by the time of the relevant incidents [156, 186 188].
Oracle America Inc, formerly known as Sun Microsystems, [Sun] are the manufacturers of computer systems, workstations and related goods. Sun is the proprietor of trade marks registered for use in connection with computer hardware [5]. M Tech Data Limited, is a supplier of computer hardware [5]. Articles 5 and 7 of Directive 89/104/EC confer upon a trade mark proprietor the exclusive right to control the first marketing in the European Economic Area [EEA] of goods bearing his trade mark, even if the goods are genuine and have previously been put on the market by him or with his consent outside the EEA [4]. This means that third parties cannot import or sell a product for the first time in the EEA without the trade mark proprietors consent. Sun has the right to first market its hardware in the EEA. In 2009, a trap order was placed by a UK purchaser called KSS Associates for 64 Sun disk drives [5]. A trap order is used in litigation to gather evidence as to what a potential defendant supplies in response to a request for a trade mark proprietors products. M Tech supplied 64 Sun disk drives sourced from a US broker, which had previously been sold in China, Chile and the USA. Sun had never consented to these goods being put on the market in the EEA. Consequently, M Tech infringed Suns trade marks contrary to Article 5.1(a) of the Directive [5]. Sun sought summary judgment for damages for the infringement and an injunction restraining further infringements [6]. In its defence, M Tech alleged that Sun had sought to secure the secondary market for its hardware, worth US$ 1.07 billion, for itself and its authorised dealers by declining to supply information on whether any particular equipment was first put on the EEA market by or with Suns consent [9]. This had a chilling effect on independent resellers, including M Tech, as a result of Suns aggressive enforcement of its trade mark rights and withholding of the requisite information, which was not otherwise available and could not be inferred from circumstances [9]. In fact, the disks had been imported and supplied by M Tech because of internal procedure failures and not due to any alleged policy by Sun to withhold the requisite information [10]. M Techs defence was that Suns trade marks are not enforceable at all because (i) the object and effect of enforcement would be to partition the EEA market contrary to the free movement of goods within the EU enshrined in Articles 34 to 36 of the Treaty on the Functioning of the European Union; (ii) the exercise of Suns trade marks is connected with its distribution agreements that contained restrictive provisions inconsistent with Article 101 and (iii) enforcement of Suns trade marks would constitute an abuse of rights under EU law [6]. Kitchin J granted summary judgment, ordering an inquiry into damages, and an injunction that prevented M Tech marketing goods if Sun has confirmed that those goods have not previously been put on the EEA market by Sun or with Suns consent [7, 10]. The Court of Appeal allowed M Techs appeal and set aside the order [7]. Sun appeals to the Supreme Court, inviting the court to make a reference to the Court of Justice of the European Union [CJEU'] [7]. The issue is whether a person who has imported and sold goods in the EEA without the consent of the trade mark proprietor is entitled to defend an action for infringement on the ground that the proprietor of the trade mark is engaged in conduct calculated to obstruct the free movement of goods or distort competition in the EEA market [1]. If this were an arguable defence in EU law, a reference to the CJEU would be necessary [7]. The Supreme Court unanimously allows the appeal and restores the order of Kitchin J. The Supreme Court declines to make a reference to the CJEU [36]. Lord Sumption delivers the judgment of the Court. The fundamental question is whether, as a matter of construction of Articles 34 to 36 of the EU Treaty, there is an implied limitation on the application of Article 5 of the Directive to preclude any exercise of trade mark rights that would have the object or effect of partitioning the EEA internal market [11]. Such a limitation would effectively suspend Suns trade mark rights as against the entire EEA market [11]. The scheme of Articles 5 and 7 of the Directive embodies both the primary provisions of the Treaty governing free movement of goods and the limited exception in Article 36 of the Treaty for the protection of industrial and commercial property [14]. Reconciliation of the right under Article 5 to prevent the use by others of his own or identical trade mark for the registered class of goods with the Treaty is achieved by Article 7.1, as the right is exhausted as soon as goods are put on the EEA market by or with the consent of the trade mark proprietor [15]. This is subject to Article 7.2, which permits a proprietor to control the marketing of his goods within the EEA market for legitimate reasons, which naturally do no include restricting trade between member states [16]. The principle of the free movement of goods is incapable of restricting the right of a trade mark proprietor to prevent the first marketing within the EEA of goods imported from outside the EEA, per EMI Records Ltd v CBS United Kingdom Ltd 9 (Case 51/75) [1976] ECR 811 [18 20]. The Directive is a definitive statement of the harmonised law concerning the rights of trade mark proprietors that confers on them a right to control the first marketing of their goods in the EEA, save where that right has been unequivocally renounced [20]. The right affects only the entry of goods onto and not the movement of goods within the EEA market [25]. Under Article 7.2, when goods have been put on the EEA market, the free movement of goods may be engaged and control of the marketing can only be exercised for legitimate reasons [21]. Where there are no such legitimate reasons, the right to control the marketing does not exist at all [22]. This reasoning cannot be applied to the right to control the first marking of goods in the EEA as that right is in every relevant respect unqualified [22]. National law may place the burden of proving the consent of the trade mark proprietor to put goods on the EEA market on an alleged infringer who asserts it, unless the effect would be to enable the partitioning of national markets, in which case the burden lies with the proprietor [23]. This rule is of no application in a case where it is admitted or clear that the goods were imported into the EEA without the proprietors consent [23]. It is clear that the unlawful conduct alleged by M Tech does not amount to a defence, even if proved [24]. On the agreed facts, the disk drives were never marketed in the EEA until they were imported by M Tech without Suns consent. The only right that Sun is seeking to enforce is the right to control the first marketing of goods in the EEA and the exercise of these rights affects only the entry of goods onto the EEA market and thus does not engage the principle of the free movement of goods [25]. The control of marketing of goods in circulation within the EEA under Article 7.2 is a different and irrelevant situation [25]. Sun cannot be prevented from enforcing its right to control first marketing, which is entirely lawful and consistent with the principle of the free movement of goods, simply because it is alleged that Sun proposes to withhold information about the provenance of its goods, which is unlawful and inconsistent with that principle [26]. The case law on Article 7.2 only prevents a trade mark proprietor claiming a right to oppose further commercialisation if the exercise of that right itself would unjustifiably impede the free movement of goods. It does not restrain any exercise that does not [27]. The limitation contended for would have the effect of preventing Sun enforcing its trade mark rights against anyone, which is unnecessary to vindicate the Treaty and contrary to the object and terms of the Directive [28]. There is no relevant connection between the alleged policy of withholding information about the provenance of goods and the prevention, restriction or distortion of competition, contrary to Article 101 of the Treaty, by means of distribution agreements with a network of authorised Sun dealers. The policy had no effect on the choices made by the dealers and neither trade marks nor the right to enforce them can be characterised as the subject, means or result of an agreement or concerted practice [32]. The exercise of Suns rights was not an abuse of rights in EU law [35]. A reference to the CJEU is not necessary as the legislative and legal principles that made M Techs case impossible are entirely clear [36].
This appeal raises an important question about the application of copyright law to the technical processes involved in viewing copyright material on the internet. Where a web page is viewed by an end user on his computer, without being downloaded, the technical processes involved will require temporary copies to be made on screen and in the internet cache on the hard disk of the computer. The end users object is to view the material. He does not make a copy unless he downloads or prints the image. The copies temporarily retained on the screen or in the cache are merely an incidental consequence of using a computer to view the material. Temporary copies of copyright material on a computer are dealt with by section 28A of the Copy, Designs and Patents Act 1988. S28A gives effect to Directive 2001/29/EC (the Directive). The Directive gives copyright owners various rights. Article 5.1 qualifies rights in relation to temporary acts of reproduction which are transient or incidental [and] an integral and essential part of a technical process whose sole purpose is to enable: (a) the transmission in a network between third parties by an intermediary, or (b) a lawful use of a work or other subject matter to be made, and which have no independent economic significance The appellant is a professional association of public relations professionals who monitor news coverage for clients, using on line monitoring and search services. The Meltwater group of companies provides members of the association with automated software programmes to create a daily index of words appearing on newspaper websites. Meltwaters customers supply them with search terms, and Meltwater produces a monitoring report listing the results. Meltwater sends the monitoring report to the customer by email, but the customer can also access it through Meltwaters website. The question in this appeal is whether Meltwaters customers need a licence to receive its service if a monitoring report is made available only on Meltwaters website. Proudman J held that the end user needed a licence and the Court of Appeal agreed, largely on the ground that making copies, however temporary, in the end users computer while browsing was not part of the technological process but generated by the users voluntary decision to access the web page. Before making an order, the Court refers the question of whether the requirements of article 5.1 of the Directive are satisfied to the CJEU for a preliminary ruling. Lord Sumption gives the judgment of the Court. Lord Sumption reviewed and summarised the effects of a series of CJEU decisions [26]. He rejects the idea that article 5.1 does not apply to temporary copies generated by an end user of the internet. Recital 33 to the Directive makes clear it was intended to include acts which enable browsing as well as acts of catching to take place. Browsing by its very nature is an end user function. These acts are acts of temporary reproduction which enable browsing and are the making of temporary copies in the end users cache and screen. The exception is wider than the process of transmission in a network between third parties by an intermediary. Article 5.1(b) also extends it to lawful use. This covers use of work subject to copyright, whether or not authorised by the copyright owner, provided it is not restricted by legislation. This necessarily includes use of the work by an end user browsing the internet [27]. Once it is accepted that the purpose of article 5.1 is to authorise the making of copies to enable the end user to view copyright material on the internet, the various conditions laid down by it must be constructed consistently with that purpose, and apply to ordinary technical processes associated with internet browsing [28]. As to the other conditions of article 5.1, copies in the cache and on screen are an integral part of a technological process as they are basic features of modern computers. The technical process required to browse the internet could not function correctly and efficiently with the acts of reproduction concerned [29]. Copies are stored automatically by browsing and deleted automatically by a lapse of time coupled with continuing browser use, rather than being dependent on discretionary human intervention. The technological processes are those necessarily associated with browsing including retention of material in the cache for no longer than the ordinary processes associated with internet use continue. The restriction to temporary and transient is designed to prevent downloading or copying which is permanent until the user chooses to delete the material. The copying has no independent economic value unless Meltwaters customers download or print the material. The sole economic value is from accessing information on Meltwaters website which is derived from merely reading it on screen [31]. The above conclusions would not result in large scale piracy. It has never been an infringement of EU or English law to view or read an infringing article in physical form. Making mere viewing, rather than downloading or printing, the material an infringement could make infringers of millions of ordinary internet users across the EU. Nothing in article 5.1 stops Meltwater needing a licence to upload copyright material on their website. The copyright owner still has remedies against pirates including the remedies provided in the Directive itself. Given the appeals transnational dimension and potential implications for internet users across the EU, the Court, while expressing its own view of the matter, proposes to refer the matter to the CJEU for a preliminary ruling. The question which it will refer is (in substance) whether the requirements of article 5.1 of the Directive that acts of reproduction should be (i) temporary (ii) transient or incidental and (iii) an integral and essential part of the technological process are satisfied, having regard in particular to the fact that copies may remain in the cache after the browsing session that generated them has ended until overlaid by other material, and a screen copy will remain on screen until the browsing session is terminated by the end user [38].
Three prisoners brought appeals concerning the circumstances in which the Parole Board is required to hold an oral hearing. Osborn was convicted in 2006 following an incident in which he was said to have brandished an imitation firearm at the home of his estranged wife. He was given a six year prison sentence and was released on licence in February 2009, the halfway point. He was recalled to prison later that day for breach of his licence conditions [18 29]. Booth and Reilly are indeterminate sentence prisoners who have served their minimum terms. In 1981, Booth [30 42] received a discretionary life sentence for attempted murder, with a minimum term of six and a half years. Reilly [43 53] was convicted in 2002 of robbery, attempted robbery and possession of an imitation firearm. He received an automatic life sentence with a minimum term of six years and eight months, which expired in September 2009. Both remain in custody. Each case was considered on paper by the boards single member panel. It decided not to direct the prisoners release or recommend their transfer to open prison conditions. Their solicitors made written representations to the board, disputing its findings and requesting an oral hearing in each case, but those requests were refused. All three sought judicial reviews of the decisions not to offer oral hearings. Only Reilly succeeded in the High Court, which found that the board had breached its common law duty of fairness, and had acted incompatibly with the appellants rights under article 5(4) of the European Convention on Human Rights1 by failing to offer him an oral hearing. This was overturned by the Northern Ireland Court of Appeal. The Supreme Court unanimously allows the appeals and declares that the board breached its common law duty of procedural fairness to the appellants, and article 5(4) of the European Convention, by failing to offer them oral hearings [116]. 1 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The judgment, delivered by Lord Reed, emphasises that human rights protection is not a distinct area of the law based on the case law of the European Court, but permeates our legal system. Compliance with article 5(4) requires compliance with the relevant rules of domestic law [54 56]. The legal analysis of the problem does not begin and end with the Strasbourg case law [63]. Lord Reed sets out guidance (summarised at [2]) on complying with common law standards in this context. The board should hold an oral hearing whenever fairness to the prisoner requires one in the light of the facts of the case and the importance of what is at stake [81]. By doing so, it will act compatibly with article 5(4) [103]. It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but these will often include: (a) where important facts are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility [73 78; 85]; (b) where the board cannot otherwise properly or fairly make an independent assessment of risk, or of how it should be managed and addressed [79; 81; 86]; (c) where it is tenably maintained that a face to face encounter, or questioning of those who have dealt with the prisoner, is necessary to enable his case to be put effectively or to test the views of those who have dealt with him [82]; and (d) where, in the light of the prisoners representations, it would be unfair for a paper decision taken by a single member panel to become final without an oral hearing [96]. The purpose of the oral hearing is not only to assist in the boards decision making, but also to reflect the prisoners legitimate interest in being able to participate in a procedure with important implications for him, where he has something useful to contribute [82]. The likelihood of release or transfer is separate from the question of whether fairness requires an oral hearing [88 89]. When dealing with recalled prisoners cases, the board should bear in mind that they have been deprived of their freedom [83]. For indeterminate sentence prisoners, increased scrutiny should be afforded by the board in assessing whether the risk they present is unacceptable the longer they have spent in prison post tariff [83]. The board must be, and appear to be, independent and impartial [90 91] and guard against any temptation to refuse an oral hearing to save time, trouble and expense [91]. Lord Reed stresses that paper decisions are provisional; the right to request an oral hearing is not an appeal, and the prisoner need only persuade the board that an oral hearing is appropriate [94 95]. The common law duty to act fairly is influenced by the requirements of article 5(4); compliance with the former should ensure compliance with the latter [101 113]. Breach of article 5(4) will not normally result in an award of damages under the Human Rights Act unless the breach has resulted in the prisoner suffering a deprivation of liberty [114 115]. An oral hearing ought to have been offered to the appellants. Osborn and Reilly had advanced various explanations and mitigations [98] and their requests for an oral hearing were mistakenly characterised as appeals [99 100]. In Booths case, input from his psychiatrist at an oral hearing would have been helpful and it was relevant that he had spent so long in custody post tariff [99]. Reillys claim for damages failed it had not been argued that he had suffered any deprivation of liberty as a result of the article 5(4) breach [115].
A special rule has been developed for cases brought by persons who contract mesothelioma after being wrongly exposed to asbestos, known as the Fairchild exception after the decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. This provides that defendants whose breaches of their duty of care materially increase the risk of mesothelioma are jointly and severally liable for the damage suffered if mesothelioma does in fact develop. The rule relaxes the usual requirement that a claimant must show that it is more likely than not that the harm he has suffered has been caused by the defendants breach, in order to reflect the fact that medical science cannot presently determine which asbestos fibre or fibres has caused the mesothelioma to develop, often decades later. The issue in these two appeals was whether this special rule applies in cases where only one defendant is proved to have exposed the victims to asbestos, but where the victims were also at risk of developing the disease from environmental exposure to asbestos in the general atmosphere. Mrs Karen Sienkiewicz is the daughter and administratrix of the estate of the late Mrs Enid Costello, who died of mesothelioma on 21 January 2006 at the age of 74. Mrs Costello had worked in an office at factory premises manufacturing steel drums for employers who were found to have wrongly exposed her to asbestos, although the level of that exposure was very light. This was calculated by the trial judge to have increased her total level of exposure, over the general environmental exposure, by 18%. Mr Barre Willmore is the husband and administrator of the estate of the late Dianne Willmore who died of mesothelioma on 15 October 2009 aged 49. She was found to have been exposed to asbestos at her secondary school. In Mrs Costellos case, the judge held that the Fairchild exception did not apply and that she had failed to establish that her occupational exposure to asbestos was the likely cause of her disease. This decision was reversed by the Court of Appeal, which entered judgment on liability with damages to be assessed. The judge in Mrs Willmores case applied the Fairchild exception and awarded her damages of 240,000. The Court of Appeal upheld his decision. The defendants in each case appealed to the Supreme Court, arguing that the Fairchild exception should have been held to be inapplicable when proceedings are directed against one defendant. They submitted that, in such cases, liability could only be established if a claimant could prove on the balance of probability that the mesothelioma was caused by the defendants exposure ie that such exposure had at least doubled the risk of the victim developing mesothelioma. The Supreme Court unanimously dismisses the appeals. It holds that the Fairchild exception applies to cases of mesothelioma involving a single defendant and that there is no requirement for a claimant to show that the defendants breach of duty doubled the risk of developing the disease. The main judgment is given by Lord Phillips, with each of the other justices adding shorter judgments concurring in the result. Numbers in square brackets below are to paragraphs in the judgment. Knowledge about mesothelioma is based in part on medical science and in part on statistical analysis or epidemiology. It is summarised at [19] and in the annex after [112]. Much remains still to be discovered. The courts may revert to the conventional causation test if advances in medical science in relation to this disease make such a step appropriate [70][142][208]. The decision in Fairchild was made in the context of claims against multiple employers who had each been found to be in breach of duty. It left open the question of whether the principle applied where other possible sources of injury were similar but lawful acts of someone else or a natural occurrence. In the subsequent case of Barker v Corus [2006] UKHL 20 the House of Lords answered this question by refining the exception so as to render each employer liable only for the proportion of damages which represented his contribution to the risk. Parliament then intervened to overturn this apportionment of damages, by providing in section 3 of the Compensation Act 2006 that where a person was liable under the common law in tort to a victim who had contracted mesothelioma, that liability was for the whole of the damage caused by the disease, jointly and severally with any other responsible person. Parliament has therefore legislated to impose draconian consequences on an employer or his insurers who has been responsible for only a small proportion of the overall exposure of a claimant to asbestos and the court had to have regard to this when considering the issues in these appeals [58][131][167][185]. The Fairchild exception did apply to single defendant cases [103][113]. The doubles the risk test for causation was therefore only potentially relevant in connection with the question of what constituted a material increase of risk. There was no justification for adopting the test as a benchmark for this. Whether exposure was too insignificant to be taken into account, having regard to the overall exposure, was a matter for the judge on the facts of the particular case [107 108]. Epidemiological evidence alone is not a satisfactory basis for making findings of causation. The exercise of comparing the statistical relationship between exposure and the incidence of the disease with the experience of the individual victim is particularly problematic in mesothelioma cases because of the very long latency of the disease [97 102][163][172] Accordingly the appeals must be dismissed. Even though the judge in Mrs Costellos case did not expressly consider whether the exposure in her case materially increased the risk, if he had thought it insignificant he would have said so [109]. In Mrs Willmores case, the challenges to the judges findings of fact also failed. The court considered that they had been very generous to Mrs Willmore but that it was not justified in taking the exceptional step of disturbing them [166]
This case concerns the correct approach to calculating beneficial interests in property where the legal title to the property is held in joint names by an unmarried couple but there is no express statement of how it is to be shared. Ms Jones and Mr Kernott met in 1981. They had two children together. In 1985 they purchased a house in Thundersley, Essex in their joint names. The price paid was 30,000 with a 6,000 deposit paid exclusively by the proceeds of sale from Ms Joness previous home. No declaration was made as to how the beneficial interest in the property was to be held. The mortgage and upkeep on the house was shared between them. In 1986 they jointly took out a loan of 2000 to build an extension. Mr Kernott did some of the work himself. The relationship deteriorated and in 1993 Mr Kernott moved out. From that point onwards Ms Jones lived in the Thundersley property with both children. In 1996 Mr Kernott bought his own house in Benfleet, Essex. Over the years, the value of the Thundersley property increased and in 2006 Mr Kernott indicated that he wished to claim a beneficial share in it. In response, Ms Jones, in 2007, applied to the county court for a declaration under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 that she owned the entire beneficial interest in the property. By 2008 the property was valued at 245,000. The county court judge noted that the house was first purchased to set up a family home. It was bought in joint names and a presumption arose that they intended to jointly share the beneficial ownership of it as well. Up until 1993 there was no evidence to rebut that presumption. Ms Jones claimed however that in the 14 and a half years following there was evidence that their common intention had changed. Mr Kernott had ceased to make contributions towards the running of the house and had made only very limited contributions towards the support of their children. Furthermore it was mostly during that latter period that the value of the property had increased. The judge held that their common intention had indeed changed. In reliance upon the decision of the House of Lords in Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432, he held that once the initial presumption of joint beneficial ownership is displaced and there is no further clear evidence as to the division of shares in the property it falls upon the court to infer or impute an intention to the parties as to the division of the property that they, as reasonable and fair people, would have intended. He decided that Mr Kernott was entitled to only a 10% share. Mr Kernott appealed to the High Court arguing that it was wrong for the court to infer or impute a change of common intention and further wrong for the judge, in effect, to substitute a division that he considered to be fair as between the parties. Mr Nicholas Straus, QC sitting as a High Court judge dismissed his appeal. Mr Kernott appealed to the Court of Appeal which, by a majority (Jacob, LJ dissenting), allowed his appeal. The Supreme Court unanimously allows the appeal and restores the order of the county court. Lord Walker and Lady Hale give the lead judgment. Lord Collins agrees with Lord Walker and Lady Hale and adds some reflections of his own. Lord Kerr and Lord Wilson agree in the result but reach it by a different route. Lord Walker and Lady Hale: The principle recognised in Stack v Dowden is that where people purchase a family home in their joint names the presumption is that they intend to own the property jointly in equity also [15]. The starting point is different in cases where the property is bought in the name of one party only. The presumption of joint beneficial ownership arises because (i) purchasing property in joint names indicates an emotional and economic commitment to a joint enterprise and (ii) the practical difficulty of analysing respective contributions to the property over long periods of cohabitation [19 22]. The presumption may be rebutted by evidence that it was not, or ceased to be, the common intention of the parties to hold the property jointly. This may more readily be shown where the parties did not share their financial resources [25]. In the absence of clear evidence of intention, a question arises as to when the court can infer such intention and when the court can, instead, impute an intention. An inference is drawn where an actual intention is objectively deduced from the dealings of the parties; an imputation is one attributed to the parties by the court [26 27]. The search is primarily to ascertain the parties actual intentions, expressed or inferred but if it is clear that the beneficial interests are shared but impossible to infer a common intention as to the proportions in which they are shared, the court will have to impute an intention to them which they may never have had [31]. The following principles apply: (i) the starting point where a family home is bought in joint names is that they own the property as joint tenants in law and equity; (ii) that presumption can be displaced by evidence that their common intention was, in fact, different, either when the property was purchased or later; (iii) common intention is to be objectively deduced (inferred) from the conduct and dealings between the parties; (iv) where it is clear that they had a different intention at the outset or had changed their original intention, but it is not possible to infer an actual intention as to their respective shares, then the court is entitled to impute an intention that each is entitled to the share which the court considers fair having regard to the whole course of dealing between them in relation to the property; and (v) each case will turn on its own facts; financial contributions are relevant but there are many other factors which may enable the court to decide what shares were either intended or fair [51]. On the facts of this case the county court judge held that the parties intentions as regards the Thundersley property had changed after their separation. It was a logical inference that they intended [Mr Kernotts] interest in Badger Hall Avenue should crystallise in 1995, when they took the house off the market, cashed in an insurance policy, so that Mr Kernott was able to buy a house in his own name [48]. The calculation of their shares on this basis produced a result so close to that produced by the judge that it would be wrong for an appellate court to interfere. Lord Collins agrees with Lord Walker and Lady Hale, holding that the differences in reasoning set out below are largely terminological and conceptual and are likely to make no difference in practice. [58]. Lord Kerr holds that the divergence in reasoning might, in practice, make a difference [67]. The question concerns how far the court should go in seeking to infer intention and when it is justified in imputing it. It is preferable to give effect to the parties intentions where possible but the courts should not be reluctant to recognise when it is not and to impute an intention accordingly. In agreement with Lord Wilson it is not possible to infer the intention in this case but the division that the judge made is a fair one as between the parties and should stand. Lord Wilson considers that on the facts of this case, it is impossible to infer the intentions of the parties and the court can only impute to the parties an intention that the house be held in fair proportions along the lines of those set out by the county court judge [89].
The Finance Act 2015 introduced a regulatory scheme requiring wholesalers supplying duty paid alcohol to be approved by Her Majestys Revenue and Customs Commissioners (HMRC) under section 88C of the Alcoholic Liquor Duties Act 1979 (the 1979 Act). Approval may only be given if HMRC are satisfied that the person seeking to carry on the activity is a fit and proper person to do so. OWD, Hollandwest and Budge Brands (the wholesalers) were already involved in the wholesale supply of duty paid alcohol when the scheme was introduced. They needed HMRC approval to continue to trade. HMRC refused as they were not satisfied that the wholesalers were fit and proper. Each wholesaler appealed to the First tier Tribunal (FTT) against the decision. They asked HMRC to permit them to continue trading whilst the appeals were pending. HMRC refused to do so and the wholesalers brought judicial review proceedings in the High Court challenging that refusal. The High Court dismissed their claims. The Court of Appeal held that temporary approval can be granted to a person under section 88C of the 1979 Act, but not under section 9 of the Commissioners for Revenue and Customs Act 2005 (the 2005 Act). Contrary to the wholesalers argument, it held that considerations of hardship and the impact on the persons appeal rights were irrelevant to the decision on temporary approval. The Court of Appeal further held that if HMRC was not able or willing to permit trading pending the appeal, the High Court was able to grant injunctive relief under section 37 Senior Courts Act 1981. Relief (i.e. a mandatory injunction requiring temporary approval of the wholesalers) would only be granted in rare circumstances, including where there was a clear and properly evidenced claim that a failure to grant interim relief would render the appeal to the FTT futile. The wholesalers appeal and HMRC cross appeal to the Supreme Court. The two questions considered are: (1) What power does HMRC have to permit a person to carry on trading pending the determination of an appeal to the FTT? (2) If HMRC does not have such a power or refuses to exercise it, what interim relief can the High Court grant? The Supreme Court unanimously allows HMRCs appeal against the Court of Appeals conclusion that HMRC has the power to permit temporary trading under section 88C of the 1979 Act. It unanimously dismisses the wholesalers appeal against the Court of Appeals determination that HMRC does not have that power under section 9 of the 2005 Act. Lady Black gives the judgment of the court. Lord Hughes gives a concurring judgment, with which Lord Sumption agrees. Issue 1A the powers of HMRC under section 88C of the 1979 Act HMRC has concluded that the wholesalers were not fit and proper, regardless of any conditions that could be imposed, including a time limit on the approval. In those circumstances, HMRC do not have the power to grant temporary approval pending appeal. If the person is not fit and proper for even a limited period, that holds good whatever purpose the time limited approval would be designed to achieve. The Court of Appeal was right to conclude that considerations of hardship and the impact of maintaining the decision on the efficacy of the appeal were not material to the evaluation under section 88C of whether a person is fit and proper [38]. HMRCs former practice of continuing approval during a winding down period does not prove the existence of the power for which the wholesalers contend [40]. Issue 1B the powers of HMRC under section 9 of the 2005 Act Section 9 permits HMRC to do anything which they think necessary or expedient in connection with, or incidental or conducive to, the exercise of their functions [42]. It is not concerned with ancillary powers that undermine or contradict those functions. Recourse cannot be had to section 9 to provide an alternative route to time limited approval, supplementing section 88C in the way that the wholesalers suggest. This is not only because section 88C itself only permits authorisation under that section, but also because of the attributes of the whole scheme of which section 88C forms a part [45]. By using section 9 powers to enter a wholesaler on the register, HMRC would appear to be holding out as fit and proper a person in relation to whom they have formed the opposite view [46]. The fact that HMRCs decision is subject to an appeal is not a proper foundation upon which to conclude that it is necessary or expedient, incidental or conducive, to the exercise of their functions to assume a power to grant temporary approval [48]. Issue 2 High Court powers In the Court of Appeal, it was common ground that the High Court has the power to grant injunctive relief to assist a wholesaler pending his appeal to the FTT, but there was a dispute as to the basis on which relief could be granted [50]. The two judges at first instance were not satisfied that the evidence in support of injunctive relief was sufficient, and the wholesalers did not have permission to appeal to the Supreme Court in relation to the circumstances in which the High Court may grant injunctive relief [61 63]. The question that arose during the hearing was what form the High Courts order could legitimately take, where a case for injunctive relief was made out [64]. If the High Court orders HMRC to grant temporary approval to the wholesaler where HMRC has concluded that the wholesaler is not fit and proper, it would necessarily be requiring HMRC to be satisfied of the opposite [70]. The High Courts power to order a mandatory injunction is exercisable for the purpose of making a person do something that he has it within his powers to do, yet here there is nothing HMRC can properly do in the exercise of their statutory functions [71]. However, the absence of debate between the parties makes it undesirable to make a definitive pronouncement on this matter, and the fact that the case for relief was not made out in the present case means it is unnecessary to do so [72]. Lord Hughes adds that the legislation may be incompatible with the European Convention on Human Rights, where traders who had an existing business when the registration scheme was introduced, and who are refused approval but have good grounds for appeal, might be forced out of business before their appeal could be determined [77].
SeaFrance SA, a French company, operated a ferry service between Dover and Calais until it ceased operations on 16 November 2011. It was formally liquidated on 9 January 2012, and most of its employees were dismissed. Groupe Eurotunnel SA (GET), the parent company of the Group operating the Channel Tunnel, and Socit Cooprative De Production SeaFrance SA (SCOP), a workers co operative incorporated by a number of former SeaFrance employees to secure the continuance of the ferry service, acquired substantially all of SeaFrances assets on 2 July 2012. This included three of the four SeaFrance vessels, trademarks, IT systems, goodwill and customer lists. GET and SCOP resumed ferry services on 20 August 2012 through GETs subsidiary company, MyFerryLink SAS. The vessels were operated by employees who had almost all worked for SeaFrance. The reemployment of those employees had been incentivised by a statutory Plan de Sauvegarde de lEmploi (known as the PSE3), by which SeaFrances parent company SNCF would provide payments to employers for employing ex SeaFrance employees. The acquisition was referred to the Competition Commission, the regulator at the time. It concluded that there was a relevant merger situation for the purpose of the merger control provisions of the Enterprise Act 2002, which could be expected to result in a substantial lessening of competition in the cross Channel market. The enterprise of SeaFrance continued since its activities continued, even though there had been a hiatus of over seven months in its operations. The Commission imposed restrictions on the operation of the service by GET and SCOP, including a ban on using the ex SeaFrance vessels for ferry services from Dover for 10 years. On appeal to the Competition Appeal Tribunal, the Tribunal gave guidance on the meaning of enterprise in the Eurotunnel I judgment, and remitted the question of jurisdiction back to the new regulator, the Competition and Markets Authority. Upon the remission, the Competition and Markets Authority (which had assumed the functions of the Commission) considered that what had been acquired was an enterprise, and therefore that a relevant merger situation existed. Accordingly they confirmed the restrictions previously imposed by the Commission. That decision was upheld by the Competition Appeal Tribunal in the Eurotunnel II judgment. The Court of Appeal allowed an appeal by a majority, holding that GET and SCOP had not acquired an enterprise, but only the means of constructing a new (but similar) one. In particular, this was because they had not acquired SeaFrances crews. They concluded that it was irrational for the Competition and Markets Authority to reach any other conclusion on the facts. The Supreme Court unanimously allows the appeal by the Competition and Markets Authority, thereby reinstating the decision of the Competition Appeal Tribunal in Eurotunnel II. Lord Sumption gives the judgment of the Court. The merger control provisions of the Enterprise Act 2002 are not limited to the acquisition of a business that is a going concern. The possession of activities is a descriptive characteristic of an enterprise under the Act. An enterprise is subject to merger control if the capacity to perform those activities as part of the same business subsists. [32 35] The test is one of economic continuity. An Acquirer acquiring assets acquires an enterprise where (i) those assets give the Acquirer more than might have otherwise been acquired by going into the market and buying factors of production and (ii) the extra is attributable to the fact that the assets were previously employed in combination in the activities of the target enterprise. The period of time between cessation of trading and acquisition of control of the assets may be a relevant factor, but is not necessarily decisive. [36 40] This was substantially the same principle set out by the Competition Appeal Tribunal in Eurotunnel I, which the Competition and Markets Authority applied in this case. [40 41] The Court of Appeals finding that the Authoritys evaluation was irrational was unjustified. GET and SCOP acquired substantially all the assets of SeaFrance, including trademarks, goodwill, specialist vessels maintained in a serviceable condition, and substantially the same personnel. The Authoritys conclusion that this demonstrated considerable continuity and momentum and the embers of an enterprise, which could be passed to GET and SCOP, was unimpeachable. The order of the French Court of 9 January 2012 to dismiss the employees did not disrupt that continuity and momentum because the order was made on terms that the PS3 preserved the prospect of employment on the ships for the dismissed crew members. [41 43] The majority of the Court of Appeal was wrong to narrow the question of economic continuity to the legal effect of the decision of the French Court in January 2012 and whether this terminated the employment relationship between SeaFrance and its employees. The Competition and Markets Authority is not entitled to any special level of deference: the test for determining whether there is a relevant merger situation and relevant activities is a legal question. [31] But the Authority undertook a broader economic analysis, concluding that there was economic continuity. That evaluation was complex and sensitive to a whole range of factors. It was not a purely legal enquiry. Its economic analysis should be respected. [44 45]
The appeal concerns whether three products manufactured by the Actavis group of companies (Actavis) would infringe a patent whose proprietor is Eli Lilly & Company (Lilly), namely European Patent (UK) No 1 313 508 and its corresponding designations in France, Italy and Spain. The patent relates to the use of the chemical pemetrexed. This has therapeutic effects on cancerous tumours, but, when used on its own it can have seriously damaging side effects. The Patent discloses that these side effects can largely be avoided if a compound called pemetrexed disodium is administered together with vitamin B12. Such a medicament has been successfully marketed, under the brand name Alimta, by Lilly since 2004. Actavis proposed products (the Actavis products) involve pemetrexed compounds being used together with vitamin B12 for cancer treatment; however, rather than pemetrexed disodium, the active ingredient is (a) pemetrexed diacid; (b) pemetrexed ditromethamine, or (c) pemetrexed dipotassium. Actavis contend that because they intend to use the Actavis products which do not include pemetrexed disodium, the claims of the Patent would not be infringed. At trial, Arnold J decided that none of the Actavis products would directly or indirectly infringe the Patent in the UK, or in France, Italy or Spain [2015] RPC 6. The Court of Appeal allowed Lillys appeal to the limited extent of holding that there would be indirect infringement in the four jurisdictions, but agreed with the Judge that there would be no direct infringement [2015] Bus LR 68. Lilly appeals to the Supreme Court against the holding that there would be direct infringement and Actavis cross appeal against the holding that there would be no indirect infringement. The appeal raises the issue of the correct approach to the interpretation of patent claims, and the requirement of the European Patent Convention 2000 (EPC) to take account of so called equivalents. It also raises the issue of the extent to which it is permissible to make use of the prosecution history of a patent when determining its scope. The issue on the cross appeal is whether the application of the law of contributory infringement would justify a finding of indirect infringement in this case. The Supreme Court unanimously allows Lillys appeal and holds that the Actavis products would infringe the Patent in the United Kingdom, and in France, Italy and Spain. Actavis cross appeal is unanimously dismissed, so that, if its products would not directly infringe, they would indirectly infringe as held by the Court of Appeal. On direct infringement, Article 1 of the Protocol on the Interpretation of Article 69(1) EPC provides that the scope of protection afforded to a patentee is not to be limited by the literal meaning of the claims. Article 2 provides that there can be a difference between the interpreted scope of a claim and the scope of protection afforded by it, and when considering the scope of protection equivalents must be taken in to account [33 34]. Further guidance is needed to guide a court through this exercise [53]. Whether an item directly infringes a patent is best approached by addressing two questions through the eyes of the notional addressee of the patent, i.e. the person skilled in the relevant art, namely: 1. Does the item infringe any of the claims as a matter of normal interpretation; and if not, 2. Although the item may be characterised as a variant, does it nonetheless infringe because it varies from the invention in a way which is immaterial? If the answer to either question is yes, there is an infringement; otherwise there is not [54]. On question 1, according to normal principles of interpretation the Actavis products do not infringe the Patent [58]. Question 2 raises the issue of equivalents and poses a more difficult question of principle [59]. The following questions should be considered by a court as a guide to the question of materiality [66]: 1. Notwithstanding that it is not within the literal meaning of the relevant claim(s) of the patent, does the variant achieve substantially the same result in substantially the same way as the invention, i.e. the inventive concept revealed by the patent? 2. Would it be obvious to the person skilled in the art, reading the patent at the priority date, but knowing that the variant achieves substantially the same result as the invention, that it does so in substantially the same way as the invention? 3. Would such a reader of the patent have concluded that the patentee nonetheless intended strict compliance with the literal meaning of the relevant claim(s) of the patent was an essential requirement of the invention? To establish infringement where there is no literal infringement, a patentee would have to establish that the answer to the first two questions was yes and the answer to the third was no [66]. The Actavis products directly infringe the Patent [68]. They all involve a medicament containing the pemetrexed anion and vitamin B12, and achieve substantially the same result in substantially the same way as the invention. Once he or she knew that the Actavis products achieved substantially the same result as the invention, the notional addressee of the Patent would have thought it obvious that this was so, particularly as he or she would have regarded investigating whether pemetrexed free acid, pemetrexed ditromethamine or pemetrexed dipotassium worked as a routine exercise [69]. On the third question, the Court of Appeal had placed too much weight on the words of the claim. It is very unlikely that the notional addressee would have concluded that the patentee could have intended to exclude any pemetrexed salts other than pemetrexed disodium from the scope of protection [70 74]. Direct infringement is also established under French, Spanish and Italian law [92 102]. Recourse to the contents of the prosecution file by a UK court will only be appropriate in limited circumstances, particularly if they clearly resolve a genuine ambiguity in the patent or it would be contrary to the public interest to disregard the file [87 88]. The contents of the file do not justify departing from the conclusion in this case [89]. In the circumstances, Actavis cross appeal does not arise. However, the Supreme Court would have upheld the Court of Appeals determination that Actavis are liable to Lilly for indirect infringement in the United Kingdom [103 112].
Delivering the Courts judgment, Lord Hodge sets out seven principles relevant in the case [10], which counsel for Mr Zoumbas had enumerated. He notes that Lord Kerrs formulation spoke of dictating the outcome of cases such as ZH, and in that case the Court was dealing with British citizens, unlike the children in this case. The benefits of British citizenship are an important factor in assessing whether it is reasonable to expect a child with such citizenship to live in another country. Moreover, Lord Kerr had explained that what he was seeking to say was that no factor should be given greater weight than the interests of a child [12]. Further, the decision maker is required to assess the proportionality of the interference in the particular circumstances in which the decision is made an evaluative exercise that excludes any hard edged or bright line general rule [13]. In this case, the Secretary of State accepted that Mr Zoumbas had established a private life and a family life in the UK. She then concluded that the interference would be in accordance with the law and in pursuit of the legitimate aim of maintaining effective immigration control [14], having referred to the familys unlawful residence, the fact that family life had been established in the full knowledge that they had no right to reside in the UK and could be removed at any time, and the couples appalling immigration history and the unidentified bank credits [15]. Family life would be preserved as the whole family would be removed with Mr Zoumbas [16]. The first part of Mr Zoumbas challenge rests on a mistaken construction of the decision letter. It had been accepted that the status of the well being the children as a primary consideration did not mean that it had in every case to be considered first with other possible countervailing issues considered thereafter. It is important to read the letter as a whole and to analyse the substance of the decision [19]. There is nothing wrong with the Secretary of States use of a template letter in which her conclusion is followed by her reasoning what is important is that the best interests of the children are at the forefront of the decision makers mind [21]. That the conclusions on best interests are set out briefly does not mean they were not considered carefully, and the Secretary of State does not need to record and deal with every piece of evidence in her letter [22 23]. The Court suggests that challenges such as the present would be less likely if her advisers were to express the test in the way it was expressed in ZH (Tanzania), and to expand the explanation of the separate consideration given to the interests of the children [28]. As for the second part of the challenge, it would be possible to conclude, other things being equal, that it would be in the childrens best interests to stay in the UK. But other things are not equal, including that the children are not British citizens [24]. The Court rejected the criticism that the assessment of best interests was flawed because it assumed that the parents would be removed. It was legitimate for the decision maker to ask herself first whether it would have been proportionate to remove the parents if they had no children and then, in considering the best interests of the children in the proportionality exercise, ask whether their well being altered that provisional balance [25]. The third part of the challenge cannot succeed, the first two parts having failed [26].
The Financial Services Authority (the FSA) had brought a criminal prosecution against the Appellant, Mr Neil Rollins, for (i) offences of insider dealing contrary to section 52 of the Criminal Justice Act 1993 and (ii) offences of money laundering contrary to sections 327 and 328 of the Proceeds of Crime Act 2002 (POCA). The allegations under (i) related to the sale of shares in a company by which he was employed. The allegations under (ii) related to the transfer of part of the proceeds of the sale from his bank account to a bank account in his fathers name. The Appellant contended that the FSAs powers to prosecute criminal offences were limited to the offences referred to in sections 401 and 402 of the Financial Services and Markets Act 2000 (FSMA). He conceded that the FSA had power to prosecute the insider dealing offences under section 402 of FSMA. However, he challenged the FSAs power to prosecute the money laundering offences, since this had not been provided for by section 402. He argued that FSMA set out a complete code within which the FSA had to operate and that its only powers to prosecute were those referred to in sections 401 and 402. The Crown Court and the Court of Appeal rejected the Appellants arguments. The Appellant appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. It holds that the Financial Services Authority does have the power to prosecute the money laundering offences. Sir John Dyson SCJ gave judgment on behalf of the Court. The Financial Services Authority, like other corporate bodies, was entitled to bring a prosecution for any offence subject to statutory restrictions and conditions and provided that it was permitted to do so by its memorandum and articles of association [paragraphs 11, 14]. Section 401 (2) of Financial Services and Markets Act 2000 provided that offences created by FSMA itself or any subordinate legislation made under the Act could be instituted only by the FSA or the Secretary of State or by the consent of the Director of Public Prosecutions. If section 401 (2) had the effect of conferring the power to prosecute such offences on the FSA, that would support the argument that its power to prosecute was limited to those offences set out in the Act. However, the true effect of section 401 (2) was to limit the power to prosecute to those listed in the section to the FSA, the Secretary of State and the Director of Public Prosecutions and not to limit which offences could be prosecuted [paragraph 15]. There was no policy reason which could have led Parliament to deprive the FSA of the power it previously enjoyed to bring prosecutions for offences other than those listed in sections 401 and 402. The policy considerations pointed the other way. One of the objectives of the FSA as defined by FSMA was to reduce financial crime. It would therefore have been perverse for Parliament to deprive the FSA of its previous power to prosecute financial offences. Similarly the Appellants argument would have the effect of requiring multiple prosecutions in some cases and prevent the FSA from amending charges in other cases where the sought amendment concerned an offence which was not contained within section 401 or 402. [paragraphs 17, 18]. The Appellant had submitted that Parliament must have intended to limit the FSAs power to prosecute offences not created by FSMA itself to those listed in section 402, as there was no other explanation for their inclusion in the statute. This was not correct there were rational reasons [paragraphs 23, 24]. FSMA cannot have set out a complete code within which the FSA to operate. For example, the FSA had powers under other statutes which were not derived from FSMA [paragraph 26].
This appeal arises out of what has become known as the phone hacking scandal. During 2005 6 the Appellant, Mr Glenn Mulcaire, worked as a private investigator, often engaged by staff on the News of the World newspaper, then published by News Group Newspapers Ltd (NGN). During that period, Mr Clive Goodman was employed by NGN as a reporter on the News of the World with responsibility for news about the royal family and household. In January 2007, Mr Mulcaire and Mr Goodman pleaded guilty to offences relating to the interception of voicemail messages of the royal household and were sentenced to six and four months imprisonment respectively. During 2008 10 a large number of civil claims were brought by individuals against NGN and, some against Mr Mulcaire, claiming that messages on their mobile phones had been unlawfully intercepted. [3] [5]. On 10 May 2010, the Respondent, Ms Nicola Phillips, began proceedings against NGN in relation to voicemail messages left on her mobile phone [6]. Ms Phillips worked for Max Clifford Associates (MCA), the corporate vehicle of the well known public relations consultant, Max Clifford. Her responsibilities included trying both to place favourable stories and to prevent the placing of unfavourable stories in the media about MCAs clients [2]. Part of her case was that the contents of voicemail messages left by clients on her mobile included factual information, some of which is private information and some of which is commercially confidential information, including that relating to her clients personal lives and relationships, health, finances, incidents in which the police have become involved, personal security or publicity issues, commercial business transactions, professional relationships and future career plans [6]. On 12 October 2010, Ms Phillips applied to add Mr Mulcaire as a defendant and for an order that he serve a witness statement disclosing information under several heads, including the identity of the person instructing him to intercept the messages. He opposed the order for disclosure relying on privilege against self incrimination, that is, on the basis that he could not be required to disclose that information as to do so would tend to expose him to prosecution. Against that, Ms Phillips relied on s.72 of the Senior Courts Act 1981 (the Act) as excluding the privilege [8]. That section applies to, among others, proceedings for infringement of rights pertaining to any intellectual property and, when it applies, it excludes the privilege if the offence to which the person would tend to be exposed is a related offence [9]. The High Court and Court of Appeal considered that both of these conditions were made out. Mr Mulcaire therefore could not rely on the privilege and he was ordered to provide the requested information. The issues on this appeal are therefore: (i) whether information left in voicemail messages on Ms Phillipss mobile is technical or commercial information within the definition of intellectual property such that the proceedings are for infringement of rights pertaining to any intellectual property; and (ii) whether, on the footing that Mr Mulcaire would expose himself to a charge of conspiracy in providing the information ordered, such proceedings would be for a related offence within the meaning of s.72(5) [1]. The Supreme Court unanimously dismisses Mr Mulcaires appeal. S.72 of the Act excludes his privilege against self incrimination: the proceedings brought by Ms Phillips are proceedings forrights pertaining tointellectual property and the conspiracy proceedings to which Mr Mulcaire would expose himself on disclosure of the information amount to a related offence. Lord Walker gives the leading judgment with which Lords Hope, Kerr, Clarke and Dyson agree. Where Parliament has left no room for doubt that it intends the privilege to be withdrawn, there is no need for the Court to lean in favour of the narrowest possible construction of the reach of the relevant provision. An important part of the legislative purpose of these provisions is to reduce the risk of injustice to victims of crimes. That purpose might be frustrated by an excessively narrow approach [14]. Various definitions of intellectual property were put before the Court but they are not particularly helpful because there is no universal definition of the term [18]. The starting point must be the language of the definition in s.72(5). For present purposes the essential point is that the definition in s.72(5) contains the words technical or commercial information. The meaning of those words must be something in which a civil claimant has rights capable of being infringed. The fact that technical and commercial information ought not, strictly speaking, to be described as property cannot prevail over the clear statutory language. Whether or not confidential information can only loosely, or metaphorically, be described as property is simply irrelevant [19] [20]. Not all technical or commercial information is confidential [23]. Conversely a secret about a persons private life is not naturally described in normal usage as technical or commercial, even if it could be turned to financial advantage by disclosing it, in breach of confidence, to the media. [24]. Purely personal information is not other intellectual property within the meaning of s.72(5). The purpose of s.72 was to prevent remedies against commercial piracy from being frustrated, not to cover the whole of the law of confidence [28] [29]. While there may be commercial value in personal information and this may lead to some difficult borderline cases, it is not a reason for adopting an unnatural construction of the definition [31]. On the facts pleaded in this appeal there is no great difficulty as to mixed messages, where some of the information is commercial and some is not. Ms Phillipss pleading is to the effect that the voicemail messages left by her clients contained commercially confidential information. There is no reason to suppose that the commercial information was not significant [32]. There must be a sufficient connection between the subject matter of the claimants civil proceedings and the offence with which the defendant has a reasonable apprehension of being charged. Pursuant to s.72(5) the offence must be committed by or in the course of the infringement to which the proceedings relate unless the offence involves fraud or dishonesty, in which case a looser connection is sufficient [34]. It is well established that conspiracy is a continuing offence. While the offence is committed as soon as the unlawful agreement is made, the conspiracy continues until the point when the agreement is terminated by completion, abandonment or frustration [43]. If Mr Mulcaire conspired to intercept messages on mobile phones, an offence was committed when the unlawful agreement was made. But the offence continued so long as the agreement was being performed. Every interception pursuant to the unlawful agreement would be in the course of the offence [45].
The claimant (respondent to this appeal) was born in 1983. She had cervical smear tests in 2008 and 2012 and cervical biopsies in 2012. Each of these tests was negligently wrongly reported by the defendant hospital (the appellant). In 2013, when the errors were detected, her cervical cancer was too far advanced for her to have surgery which would preserve her ability to bear a child. She was advised to have chemo radiotherapy, which would result in her being unable to do so. Before having the treatment, she had eight eggs collected and frozen. The focus of this appeal is on the damages payable for the loss of the ability to bear her own child. She and her partner wanted to have four children. It was probable that, through surrogacy arrangements, they could have two children using her eggs and his sperm. They then wished to have two more children using donor eggs and his sperm. Her preference was for surrogacy arrangements in California on a commercial basis. If this was not funded, she intended to use non commercial arrangements in the UK. The hospital admitted liability. Assessing damages, the judge held in relation to surrogacy that, following Briody v St Helens & Knowsley Area Health Authority [2000] EWCA Civ 1010; [2002] QB 856 (Briody), he was bound to reject the claim for commercial surrogacy in California as contrary to public policy, and to hold that surrogacy using donor eggs was not restorative of the claimants fertility. By contrast, damages could be awarded for two own egg surrogacies in the UK. The claimant appealed against the denial of her claim for commercial surrogacy and the use of donor eggs. The hospital cross appealed against the award for the two own egg surrogacies. The Court of Appeal dismissed the cross appeal and allowed the appeal on both points. The hospital now appeals to the Supreme Court. The appeal raises three issues. First, can damages to fund surrogacy arrangements using the claimants own eggs be recovered? Second, if so, can damages to fund arrangements using donor eggs be recovered? Third, in either event, can damages to fund the cost of commercial surrogacy arrangements in a country where this is not unlawful be recovered? By a majority, the Supreme Court dismisses the appeal. Lady Hale gives the majority judgment, with which Lord Kerr and Lord Wilson agree. Lord Carnwath gives a judgment dissenting on issue three, with which Lord Reed agrees. Lady Hales judgment explains that under UK law, in essence, surrogacy arrangements are completely unenforceable; the surrogate mother is always the childs legal parent unless and until a court makes a parental order transferring legal parenthood to the commissioning parents; and the making of surrogacy arrangements on a commercial basis is banned. The details are more complicated [9]. For example, section 2(1) of the Surrogacy Arrangements Act 1985 (the 1985 Act) bans third parties from (among other things) initiating or taking part in negotiations with a view to making surrogacy arrangements on a commercial basis. However, offences under the 1985 Act can only be committed in the UK, and so there is nothing to stop agencies based abroad from making surrogacy arrangements on a commercial basis abroad. Nor does this ban extend to acts by commissioning parents or surrogate mothers [19 21]. As for Briody, it is not binding on the court, and its persuasiveness is affected by subsequent developments in the law and social attitudes relating to surrogacy (see below) [29 39]. Nothing which the claimant proposes to do involves a criminal offence here or abroad. Damages in tort seek to put the injured party in the position she would have been in had she not been injured; but they cannot be recovered where it would be contrary to legal or public policy, or unreasonable [40 43]. On the first issue in the appeal, Briody did not rule out the award of damages for own egg surrogacy arrangements made in the UK; rather, it held that whether it was reasonable to seek to remedy the loss of a womb through surrogacy depended on the chances of a successful outcome. Here, those chances are reasonable, and the claimant delayed cancer treatment to ensure that her eggs were harvested. It is therefore difficult to see why the claim should not succeed [44]. On the second issue, the view expressed in Briody, that damages for donor egg surrogacy arrangements could not be recovered as they were not restorative of what the claimant had lost, was probably wrong then, and is certainly wrong now. There have been dramatic developments in the laws idea of what constitutes a family [30]. And this is the closest one can get to putting the claimant in the position she would have been in had she not been injured. Therefore, as long as the arrangement has reasonable prospects of success, damages for the reasonable costs of it may be awarded [45 48]. On the third issue, UK courts will not enforce a foreign contract if it would be contrary to public policy. But most items in the bill for a surrogacy in California could also be claimed if it occurred here. In addition, damages would be awarded to the claimant, the commissioning parent, and it is not against UK law for such a person to do the acts prohibited by section 2(1) of the 1985 Act. Added to that are developments since Briody: the courts have striven to recognise the relationships created by surrogacy; government policy now supports it; assisted reproduction has become widespread and socially acceptable; and the Law Commissions have proposed a surrogacy pathway which, if accepted, would enable the child to be recognised as the commissioning parents child from birth. Awards of damages for foreign commercial surrogacy are therefore no longer contrary to public policy. However, there are important factors limiting the availability and extent of such awards: both the treatment programme and the costs involved must be reasonable; and it must be reasonable for the claimant to seek the foreign commercial arrangements proposed rather than to make arrangements within the UK; this is unlikely to be reasonable unless the foreign country has a well established system in which the interests of all involved, including the child, are properly safeguarded [49 54]. Lord Carnwaths dissenting judgment differs from the majority on the third issue only. In his view, while this case is not concerned with illegality, there is a broader principle of legal coherence, which aims to preserve consistency between civil and criminal law. It would go against that principle for civil courts to award damages based on conduct which, if undertaken in the UK, would offend its criminal law. Societys approach to surrogacy has developed, but there has been no change in the critical laws on commercial surrogacy which led to the refusal in Briody of damages on that basis. It would not be consistent with legal coherence to allow damages to be awarded on a different basis [55 68].
This judgment is concerned with a number of points which arise from the Supreme Courts decision in Coventry v Lawrence [2014] UKSC 13. That decision held the occupiers of a Stadium, David Coventry trading as RDC Promotions, and a Track, Moto Land UK Limited, liable in nuisance to the appellants, Katherine Lawrence and Raymond Shields. The appellants were the owners and occupiers of a residential bungalow, Fenland, some 850 yards away. The nuisance arose from the use of the Stadium for speedway racing and other motorcar racing, and the use of the Track for motorcycle racing and similar activities. The appellants brought their proceedings not only against Mr Coventry and Moto Land (the respondents), but also against their respective landlords, Terence Waters and Anthony Morley and a predecessor landlord (the landlords). The effect of the Supreme Courts decision was to reverse the Court of Appeal and restore the trial judges order, which was based on his finding that the respondents, but not the landlords, were liable in nuisance. By the time of the trial, Fenland was unoccupied due to a fire, and is still fire damaged today. The order made by the judge included: (i) An injunction against the respondents limiting the noise which could be emitted from the Stadium and the Track to take effect on 1 January 2012 or, if earlier, when Fenland is again fit for occupation; (ii) Permission to the parties to apply to vary the terms of this injunction not earlier than 1 October 2011; (iii) A provision dismissing the claims against the landlords; and (iv) A direction that the respondents pay 60% of the appellants costs. The effect of the Supreme Courts earlier decision is to restore the orders for an injunction and for damages, as well as the order for costs. Four further issues now arise: (1) Should the injunction be suspended until Fenland is rebuilt? (2) When should the parties be able to apply to the judge to vary the terms of the injunction? (3) Are the landlords also liable to the appellants in nuisance?; and (4) Does the order for costs against the respondents infringe article 6 of the European Convention on Human Rights (the Convention), which protects the right to a fair hearing? Lord Neuberger, with whom Lord Clarke and Lord Sumption agree, gives the main judgment. The injunction imposed by the judge against the respondents should be suspended until Fenland is fit to be occupied, subject to any party having liberty to apply at any time to vary or discharge the injunction. The respondents claim in nuisance against the landlords is dismissed as the landlords neither authorised nor participated in the nuisance. Lord Carnwath, with whom Lord Mance agrees, would have held that the landlords participated in, and were consequently liable for, the nuisance. Consideration of the respondents contention that the judges order for costs infringes the respondents rights under article 6 of the Convention is adjourned for a further hearing after notice is given to the Attorney General and the Secretary of State for Justice. The first two issues are of no general application, the third issue is of some significance, and the fourth issue concerns a matter which is important [4]. The two minor issues On the first issue, the injunction should not take effect before Fenland is restored, unless it could be shown that the fact that the injunction is still suspended in some way prevented Fenland being restored [6] [7]. On the second issue, there should not be a delay before the parties are able to apply to vary the injunction [8]. The third issue: the liability of the Landlords in nuisance The law relating to the liability of a landlord for his tenants nuisance is tolerably clear in terms of principle. In order to be liable a nuisance, the landlords either must have authorised it by letting the property or they must participate directly in the commission of the nuisance [11]. In the present case, there can be no question of the landlords having authorised the nuisance on the ground that it was an inevitable, or nearly certain, consequence of the letting the Stadium and the Track to the respondent tenants. The intended uses of the Stadium and the Track were known to the landlords at the time of the lettings and those uses have in fact resulted in nuisance, but that is not enough to render the landlords liable in nuisance as a result of the letting. It is clear that those uses could be, and could have been, carried on without causing a nuisance to the appellants [15]. Accordingly, if the claim in nuisance against the landlords is to succeed, it must be based on their active or direct participation [18]. Although there is little authority on the issue, the question whether a landlord has directly participated in a nuisance must be largely one of fact for the trial judge, rather than law [19]. The issue whether a landlord directly participated in his tenants nuisance must turn principally on what happened subsequent to the grant of the leases, although that may take colour from the nature and circumstances of the grant and what preceded it [20]. None of the factors upon which the appellants rely establish that the landlords authorised or participated in the nuisance [21] [30]. Lord Carnwath, with whom Lord Mance agrees, would have held that the landlords actively encouraged the tenants nuisance, and are therefore liable for that nuisance [66, 69]. The fourth issue: the level of costs The appellants costs at first instance consisted of three components in the light of the Court and Legal Services Act 1990, as amended by Part II of the Access to Justice Act 1999, and in accordance with the Civil Procedure Rules: (1) Base costs: what their lawyers charged on the traditional basis; (2) Success fee: the lawyers were entitled to this because they were providing their services on a conditional fee (no win, no fee) basis; and (3) ATE premium: a sum payable to an insurer who agreed to underwrite the appellants potential liability to the respondents for their costs if the respondents had won. The appellants base costs were 398,000, the success fee was approximately 319,000, and the ATE premium was around 350,000. As a result of the judges order, therefore, the respondents are liable for over 640,000 of a total of around 1,067,000. Even if one ignores the success fee and ATE premium, the fact that it can cost two citizens 400,000 in legal fees to establish and enforce their right to live in peace in their home is on any view highly regrettable [32] [36]. The consequences of the judges order that the respondents pay 60% of the appellants costs means that they have to pay 60% of the 100% success fee as well as 60% of the ATE premium. The respondents contend that, if the court required them to pay 60% of the success fee and of the ATE premium, their rights under article 6 would be infringed [38]. In the light of the facts of this case and the European Court of Human Rights jurisprudence, it may be that the respondents are right in their contention that their liability for costs would be inconsistent with their Convention rights [41]. However, it is unclear whether such infringement of the respondents human rights, if established, should be recognised by a declaration of incompatibility or by other relief, and a declaration of incompatibility ought not to be made without the Government having the opportunity of addressing the court [42]. Accordingly, if the respondents wish to maintain their contention that article 6 is infringed by the order for costs in this case, the present appeal should be re listed for hearing before the Supreme Court, after appropriate notice has been given to the Attorney General and the Secretary of State for Justice [44].
In this judgment the Supreme Court reformulates the approach a family court should take when exercising its discretion to decide whether to order a child to give live evidence in family proceedings. In so doing it removes the presumption or starting point of the current test, which is rarely if ever rebutted, that it is only in the exceptional case that a child should be so called. At issue in this case is the care of five children. The mother and father at the relevant time were in a relationship and the father is the biological parent of the four youngest children. A sixth child is due to be born to the couple this month. The proceedings began in June 2009 when the eldest child, a 14 year old girl, alleged that her de facto stepfather had seriously sexually abused her. All the children were taken into foster care and the four younger children are having supervised contact with both parents. The father has since been charged with 13 criminal offences and is currently on bail awaiting trial. In the family proceedings the parties originally agreed that there would be a fact finding hearing in which the 14 year old girl would give evidence via a video link. The judge however asked for further argument on whether she should do so. The Local Authority, having had time to consider the material received from the police, decided that they no longer wished to call the girl as a witness. In November 2009 the judge decided to refuse the fathers application for her to be called. Instead, she would rely on the other evidence, including a video recorded interview with the child. The Court of Appeal dismissed the fathers appeal. They did, however, express some concern about the test laid down in previous decisions of that court and suggested that the matter might be considered by the Family Justice Council. The father appealed to the Supreme Court. The Supreme Court unanimously allows the appeal and remits the question of whether the child should give evidence, and if so in what way, to Her Honour Judge Marshall to be determined at the fact finding hearing scheduled for 8 March 2010 in light of the principles set down in this judgment. Lady Hale gave the judgment of the court. The court agreed with counsel for the Local Authority that there were very real risks to the welfare of children which the court must take into account in any reformulation of the approach. [17 to 21] However the current law, which erects a presumption against a child giving live evidence in family proceedings, cannot be reconciled with the approach of the European Court of Human Rights, which aims to strike a fair balance between competing Convention rights. In care proceedings there must be a balance struck between the article 6 requirement of fairness, normally entails the opportunity to challenge evidence, and the article 8 right to respect for private and family life of all the people directly and indirectly involved. No one right should have precedence over the other. Striking the balance may well mean that a child should not be called to give evidence in a great majority of cases, but this is a result and not a presumption nor even a starting point. [22, 23] Accordingly, when considering whether a particular child should be called as a witness in family proceedings, the court must weigh two considerations: the advantages that that will bring to the determination of the truth and the damage it may do to the welfare of this or any other child. [24] The court sets out a number of factors that a family court should consider when conducting this balancing exercise. An unwilling child should rarely, if ever, be obliged to give evidence. The risk of harm to the child if he or she is called to give evidence remains an ever present factor to which the court must give great weight. The risk, and therefore the weight, will vary from case to case, but it must always be taken into account. [25, 26] At both stages of the test the court must also factor in any steps which can be taken to improve the quality of the childs evidence, and at the same time decrease the risk of harm to the child. [27, 28] The essential test is whether justice can be done to all the parties without further questioning of the child. The relevant factors are simply an amplification of the existing approach. What the court has done however is remove the presumption or starting point; that a child is rarely called to give evidence will now be a consequence of conducting a balancing exercise and not the threshold test. [30] In this case the trial judge had approached her decision from that starting point. The Supreme Court could not be confident that the judge would have reached the same result had she approached the issue without this starting point, although she might well have done so. Nor did the court consider it appropriate to exercise its own discretion, given that all of the relevant material was not before the court. The question is remitted to the trial judge to decide at the fact finding hearing scheduled for next week. Taking account of the detriment which delay would undoubtedly cause to all of the children concerned, including the unborn baby, there should be no question of adjourning that hearing. [31 to 35]
The Le Strange family (the Estate) is the owner of a substantial amount of land adjoining the east side of the foreshore (the Foreshore) on the east side of the Wash, on the west coast of Norfolk (the Wash), as well as holding an exclusive right to take cockles and mussels from the Foreshore (the Right). In 1970, the Estate granted a lease of the Right to Mr John Loose, who is still holding over under that lease. The appellants operate fishing boats out of Kings Lynn in Norfolk. During the summer of 2007, 13 of the appellants boats fished for cockles in locations claimed by the respondents to be within the area of the exclusive fishery vested in the Estate (the Area). Mr Loose and the Estate (the respondents) subsequently brought a claim in the Chancery Division of the High Court, alleging that the appellants had infringed the Right. The parties accepted that the Estate is the owner by prescription of the Right, but were in dispute as to two issues relating to the extent of the Area. The first issue was which of the low water measurements should determine the location of the western, seaward, boundary of the Area. Four different types of low water measurement were contended for: (i) mean low tide; (ii) mean spring low tide; (iii) mean neap low tide; and (iv) the lowest astronomical tide, the most extreme neap low water, which occurs every 18.6 years. At first instance, the High Court held that the mean spring low water represented the location of the western, seaward boundary of the Area; whereas the Court of Appeal concluded that it was the lowest astronomical tide mark. The second issue between the parties was whether the Right extended to sandbanks which, having been previously separated from the Foreshore, became attached to it as a result of the gradual silting up of channels separating the banks and the Foreshore. The appellants contended that the respondents must establish that the Right extended to the relevant sandbanks before they became part of the foreshore; whereas the respondents contended that either the Right applied to the Foreshore as it was constituted from time to time, or, by the doctrine of accretion, the sandbanks were treated in law as added to the Area when it became attached to the Foreshore. The High Court and the Court of Appeal accepted both the respondents arguments on this issue. The Supreme Court unanimously (i) dismisses the appeal regarding the seaward boundary, finding that the boundary is determined by the lowest astronomical tide, and (ii) allows the appeal in relation to the second issue, holding that the Estates right to fish does not extend to the sandbanks which attach to the Foreshore as and when they become so attached. Lord Neuberger and Lord Carnwath give a joint judgment, with which the other Justices agree. There are two important principles which apply to both issues. The first principle is that unless it is taken away from them, the public have the right to gather fish and shellfish from the foreshore and since Magna Carta it has not been possible for the Crown, the owner of the foreshore, to grant a private fishery ( ousts the public right) [32 35]. The second principle is that, in order to establish that he has obtained a fishery (as with any right) by prescription, a person must establish that he has physically enjoyed the fishery as of right for the requisite period, so the extent of the right must be determined by the extent of the actual or probable use in the past, not by inquiring into the mind of the notional grantor [44 47]. The first issue: the seaward boundary Resolving the first issue involves answering two questions. The first is whether the western boundary is fixed or whether it fluctuates with the relevant low mark, because, over time, the low water marks, marking the edge of the sea at low water had moved further seaward [57]. The Court concludes that it is a fluctuating boundary. The evidence clearly establishes that during the substantial period during which the prescriptive Right to take shellfish from the Foreshore was exercised, the only way in which the shellfish were gathered was by individuals walking from the land when the tide was out [58]. In those circumstances, it was very likely that the putative Right would have been exercised over an area which was defined or limited by a shifting low tide mark [58]. It is not as if the existence of such a fluctuating right would have detrimentally affected any other interests of any significant value [60]. The second question is which of the suggested low water marks is the appropriate boundary [57]. The Court concludes that the most satisfactory low water mark is the lowest astronomical tide, as this means that all parts of the Foreshore which are at any time uncovered by the sea are included in the Area, whereas any other selection involves some of those parts being excluded from the Area [64]. The second issue: the previously separated sandbanks As to the respondents first argument, the evidence does not establish that the Estates prescriptive Right extends to sandbanks which were not previously joined to the Foreshore as and when they become so attached [70]. There are two distinctions between the change in the Foreshore and the fluctuation of the low tide mark boundary. First, (while the silting up of channels which leads to the attachment is gradual), the actual attachment of sandbanks to the Foreshore itself will happen at one moment, whereas the shifting of the low tide mark will normally be gradual [71]. Second, and of particular significance, the public will have had the right to take fish, including shellfish, from such a sandbank. Unlike the position in relation to the fluctuating low tide mark, and notwithstanding the respondents contention to the contrary, it is by no means plain or obvious that, once a sandbank became attached to the Foreshore, the Estate would have exercised an exclusive Right to take shellfish from that former sandbank [72 73]. In fact, it appears unlikely that local fisherman would have been prepared to accept the Estate maintaining its exclusive Right to fish over former sandbanks which became attached to the Foreshore [73]. The fact that it is common ground between the parties that one of the sandbanks, Stubborn Sand, falls within the Area, is not inconsistent with the Courts conclusion [74]. As to the Respondents second argument, based on accretion, the doctrine of accretion is concerned with gradual and imperceptible changes in a boundary; in the present case, however, there is a specific moment in time when the whole of a sandbank becomes attached to the Foreshore [78]. There is a difference in kind between the gradual extension of one recognised bank and the joining up of two formerly distinct banks. There is no room for the doctrine of accretion in relation to the sandbanks which became connected to the foreshore in the present case [80]. Conclusion The Court would only be able to define the precise extent of the Area if the parties were able to agree it following receipt of the Courts judgment. In the absence of agreement, the Court considers that the best course of action would be to remit the proceedings to the Chancery Division to enable the precise extent of the Area to be identified [83]. This summary is provided to assist in understanding the Courts decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: http://supremecourt.uk/decided cases/index.html
The Scottish Parliament decided to address the health and social consequences arising from the consumption of cheap alcohol by a minimum pricing regime (the Regime). The Alcohol (Minimum Pricing) (Scotland) Act 2012 (the 2012 Act) amends schedule 3 to the Licensing (Scotland) Act 2005 by inserting in the licence which any retail seller of alcohol in Scotland must hold, an additional condition that an alcohol product must not be sold at a price below a statutorily determined minimum price per unit of alcohol. The minimum price is to be set by secondary legislation. The current proposal is 50 pence per unit of alcohol. The Scottish Ministers have undertaken not to bring the 2012 Act into force or to make any order setting a minimum price until determination of these proceedings. The 2012 Act contains a requirement for Scottish Ministers to evaluate and report to the Scottish Parliament on its operation after five years, and a provision terminating its operation automatically after six years, unless the Scottish Ministers by order affirmed by the Scottish Parliament determine that it should continue (the Sunset Clause). The appellants presented a petition for judicial review challenging the lawfulness of the 2012 Act. The remaining ground of challenge is that minimum unit pricing is disproportionate under EU law, namely: article 34 of the Treaty on the Functioning of the European Union (TFEU) and Regulation (EU) No 1308/2013 establishing a Common Organisation of the Markets in agricultural products (including wine) (the Single CMO Regulation) and the Common Agricultural Policy set out in article 39 TFEU (CAP). The claim was rejected at first instance. The Extra Division of the Inner House hearing the appellants reclaiming motion made a preliminary reference to the Court of Justice of the EU (CJEU). Following a ruling from the CJEU, the First Division of the Inner House refused the reclaiming motion. The Supreme Court unanimously dismisses the appeal. Lord Mance gives the judgment with whom the remaining six Justices agree. The 2012 Act does not breach EU law. Minimum pricing is a proportionate means of achieving a legitimate aim. The CJEUs Judgment The issues have to be examined in light of the guidance given by the CJEU: [5]. Advocate General Bot (the AG) and the CJEU both assimilated the analysis of proportionality under articles 34 and 36 TFEU and under the Single CMO Regulation. The AG conducted a three stage proportionality analysis: (i) appropriateness, (ii) necessity and (iii) a balancing of interests. The CJEU, in contrast, conducted a two stage analysis: (i) appropriateness and (ii) necessity, but appears to have subsumed an element involving a balancing of interests into the second stage of analysis: [9] and [15]. The CJEU concluded that where a national court examines national legislation in the light of the justification relating to the protection of health under article 36 TFEU it is bound to examine objectively whether it may reasonably be concluded from the evidence submitted by the Member State concerned that the means chosen are appropriate for the attainment of the objectives pursued and whether it is possible to attain those objectives by measures that are less restrictive of the free movement of goods and of the CMO: [13] [14]. The issues The respondents accept that minimum pricing will affect the market and EU trade in alcohol. The issue is therefore whether the respondents can justify the EU market interference under article 36 TFEU and the parallel principles governing wine under the CAP and Single CMO Regulation: [3] [4] and [18]. The appellants accept the legitimacy and appropriateness of the objective pursued by the respondents. The parties were not however agreed as to the precise implications or qualifications of the objective: [18]. The objectives pursued by minimum pricing The objective as it was put before the CJEU was two fold: reducing, in a targeted way, both the consumption of alcohol by consumers whose consumption is hazardous or harmful, and also, generally, the populations consumption of alcohol: [19]. However, the objective is more refined than might appear [20]. The aim is not that alcohol consumption be eradicated or that its costs should be made prohibitive for drinkers. The aim is to strike at alcohol misuse and overconsumption manifesting themselves in particular in the health and social problems suffered by those in poverty in deprived communities: [20] [28]. Less restrictive measures to achieve the same aim The appellants submission that an excise or tax would be a less restrictive and equally effective way of achieving the governments objectives is rejected. The Supreme Court is ready to accept, contrary to the view on which the courts below proceeded, that the relevant EU directives (Council Directive 92/83/EEC, Council Directive 92/84/EEC and Council Directive 2008/118/EC) would permit additional excise duties or VAT levied at different rates by references to narrowly defined bands of alcoholic strength: [38] [45]. Nevertheless and in agreement with the Lord Ordinary, minimum pricing targets the health hazards of cheap alcohol and the groups most affected in a way that an increase in excise or VAT does not. The latter would be felt across the board in relation to the whole category of goods to which it applied and unnecessarily affect groups which are not the focus of the legislation: [34] [37]. Second, in agreement with the Lord Ordinary, minimum pricing is easier to understand and simpler to enforce. It would not be open to absorption (e.g. by selling alcohol below cost in order to attract other business onto their premises): [46]. The lack of market impact analysis and balancing under proportionality It is unclear how far an objective, which is reasonable and can only be achieved in one way, can or should be measured against an assessment of any damage which giving it effect might cause to the ordinary operation of the EU market. [47]. But the CJEUs refusal to endorse the AGs third stage enquiry is an indication that the matter should be treated very lightly [48]. The comparison to be undertaken is between two incomparable values: (i) health and (ii) the market and economic impact on producers, wholesalers and retailers of alcoholic drinks across the EU. The courts should not second guess the value which a domestic legislator puts on health. As such, there is limited scope for the criticism made by the appellants about the lack of EU market impact evidence [48]. An analysis of the market and competition impact material that is available demonstrates that the impact will be minor: [50] [62]. The Sunset Clause indicating the provisional nature of the Regime is a significant factor in favour of upholding it: [63]. The submission that the Scottish Government should have gone further than it did to assess market impact is not realistic: [63].
The issues in the appeal were (1) whether there should be a presumption of anonymity in civil proceedings in the High Court relating to a patient detained in a psychiatric hospital or otherwise subject to compulsory powers under the Mental Health Act 1983 (the MHA 1983) and (2) whether there should be an anonymity order on the facts of this particular case. The appellant, C, who had a history of severe mental health problems, was convicted of murdering his former girlfriend and her partner in 1997. He was sentenced to life imprisonment with a tariff subsequently set at 11 years. During his imprisonment he was transferred to a high security psychiatric hospital on the direction of the Secretary of State for Justice under the MHA 1983 for psychiatric treatment, with a restriction order which meant that the appellant could not be granted leave of absence, transferred to another hospital, or discharged without the consent of the Secretary of State. In July 2012 the appellants responsible clinician applied unsuccessfully for consent for the appellant to have unescorted leave in the community to assess his suitability for discharge. The appellant applied for discharge to the Firsttier tribunal. On 25 April 2013 the tribunal notified the Secretary of State that conditional discharge (subject to supervision, supported accommodation and further treatment) would be suitable for the appellant, but that if he was not conditionally discharged he should remain in hospital. The Secretary of State referred the case to the Parole Board. The appellants responsible clinician then made a further application for consent for the appellant to have unescorted community leave, which the Secretary of State refused on 18 October 2013. The appellant applied for judicial review of that decision. In December 2013 the High Court ordered that the appellant be anonymised in the proceedings and granted permission to bring the claim. The claim was rejected by Cranston J, who also refused an application for the anonymity order to remain in force. The appellant appealed in relation to the refusal of anonymity, but the Court of Appeal upheld the judges order. The appellant brought a further appeal on the anonymity issue to the Supreme Court. In the meantime the Parole Board approved the appellants conditional release on life licence and he was released from hospital in October 2015. The Supreme Court unanimously allows the appeal against the refusal to maintain the anonymity order protecting the appellant. It finds that there is no presumption of anonymity and the question in High Court proceedings relating to the compulsory powers under the MHA 1983 is whether an order for anonymity is necessary in the interests of the patient. Such an order was necessary in the appellants interests in this case. Lady Hale gives the only substantive judgment. The rules governing privacy and anonymity in all civil proceedings in the High Court are found in rule 39.2 of the Civil Procedure Rules [15]. The general rule that hearings should be held in public is subject to established exceptions in relation to whole classes of hearings such as those relating to children, which should normally be heard in private [17]. Most of the important safeguards secured by a public hearing can be achieved without the press publishing or the public knowing the identities of the people involved, but it is for the court and not the parties to balance the interests at stake [18]. It is necessary to distinguish between ordinary civil proceedings in which a mental patient may be involved, and proceedings concerning the compulsory powers under the MHA 1983 [21]. For the latter there is a presumption of privacy and anonymity in the rules governing applications to the First tier and Upper tribunals [24]. Similar rules providing for anonymity are in place for the Court of Protection, the other specialist jurisdiction dealing with people with mental disorders or disabilities [25]. As regards the High Court, it was recognised by the House of Lords in the leading case of Scott v Scott [1913] AC 417 that the principle of open justice did not extend to proceedings relating to wards of court and to lunatics. The Court of Appeal in the present case wrongly treated this exception as limited to private law litigation concerned with the protection and administration of property, when in fact there were already statutory powers similar to the compulsory powers under the MHA 1983 at the time of the decision of the House of Lords, and the judicial safeguards for patients under those statutes were also conducted in private [29]. The closest analogy with the present case was with proceedings in the tribunals, which were concerned with risk as well as diagnosis when considering applications in respect of transferred prisoners and restricted patients [31]. The privacy rules in the tribunals were a proper and proportionate departure from the principle of open justice [32], as the hearings inevitably involved examination of confidential medical examination about the patient. Judicial review of the Secretary of States decisions as to discharge of such patients was no different [33]. Fear of disclosure of confidential information might inhibit a patient from frank dealings with his medical team and from bringing proceedings to challenge his detention or treatment [34]. The question in all these cases was that set out in CPR 31.2(4), namely whether anonymity was necessary in the interests of the patient. There should not be a presumption in favour of anonymity in every case but a balance should be struck between the public right to information about decisions in respect of notorious criminals and the potential harm to the patient and all others whose treatment could be affected by the risk of exposure [36]. The present case concerned a horrendous crime which caused incalculable distress to the families of the victims, who have statutory rights to be informed about the arrangements made for the discharge of the appellant should they so wish [37]. The public interest in knowing how difficult and sensitive cases of this sort were decided was protected by holding a public hearing, even if the identity of the patient concerned was not disclosed [38]. In this case there was a risk to the appellant from members of the public. He was much more likely to lead a successful life in the community if his identity was not generally known [39]. Putting all these factors into the balance an anonymity order was necessary in the interests of the appellant, without which there was a real risk that his long years of treatment and reintegration into the community would not succeed [40].
The appellant Mark Golds was convicted by a jury of the murder of his partner. The medical evidence was that he had an abnormality of mental functioning arising from a medical condition. He admitted in court that he had killed his partner. The sole issue in the case was whether he had been in the grip of a psychotic condition when he did so, so as to satisfy the requirements for the partial defence of diminished responsibility and reduce the charge of murder to manslaughter. The law to be applied was section 2 of the Homicide Act 1957 after its revision by the Coroners and Justice Act 2009, with the relevant test being whether the appellants ability to understand what he was doing, to form a rational judgment or to exercise self control was substantially impaired [5]. The trial judge correctly identified the questions which the jury needed to address, and provided a written summary of the ingredients of diminished responsibility. On the issue of substantial impairment, the judge told the jury that he was not going to give them specific guidance on the meaning of the everyday word substantially, unless it created difficulty and they requested assistance. The jury did not ask for further clarification or assistance. The appellant appealed against his conviction, including on two issues relating to the correct approach to the statutory test. Firstly, where a defendant, being tried for murder, seeks to establish that he is not guilty of murder by reason of diminished responsibility, whether the Court was required to direct the jury as to the definition of the word substantial in the phrase substantially impaired in s.2(1)(b) Homicide Act 1957, as amended by s.52 Coroners and Justice Act 2009? Secondly, if the judge is required to, or if the judge of his own accord chooses to, direct the jury on the meaning of the word substantial, is it to be defined as something more than merely trivial, or alternatively in a way that connotes more than this, such as something whilst short of total impairment that is nevertheless significant and appreciable? The Court of Appeal dismissed his appeal. There was no authority requiring the judge to give direction on the meaning of substantial, and if he had done so it would have been wrong to direct that it would suffice if the impairment was more than merely trivial. Mr Golds appealed to the Supreme Court. The Supreme Court unanimously dismisses Mr Golds appeal. Lord Hughes gives judgment, with which the rest of the Court agrees. In a murder trial where diminished responsibility is an issue, the judge is not ordinarily required to direct the jury beyond the terms of the statute, and should not attempt to define the meaning of substantially. However, if there is a risk that the jury will misunderstand the meaning of substantial, then a direction is required. Whether this risk arises is a matter for the judge. This may be the case where the jury has been introduced to the question of whether any impairment beyond the trivial will suffice, or has been introduced to the concept of a spectrum between greater than trivial and total. The judge must direct that while an impairment must be more than merely trivial to be substantial, it is not the case that any impairment that is more than trivial will suffice [43]. Lord Hughes carries out a comprehensive review of the treatment of the expression substantial impairment in the context of the diminished responsibility defence in cases from both England and Scotland (from whose common law the English defence was derived). This included the old formulation of the defence in the Homicide Act 1957 before it had been amended by the Coroners and Justice Act 2009. In the earlier formulation the phrase substantially impaired applied to the global concept of mental responsibility, rather than to the ability to do one or more specified things, as it now does [6]. There is no indication that Parliament wished the same expression to carry a different meaning in the new the formulation of diminished responsibility, or therefore that the authorities on the old formulation should not apply to the new law [30 35]. In ordinary usage, substantial is capable of meaning either (1) present rather than illusory or fanciful, thus having some substance, or (2) important or weighty. Either sense can be used in law making, and the word may take its meaning from its context. The review of the authorities clearly shows that in the context of diminished responsibility the expression substantially has always been held to be used in the second of the two possible meanings [27]. This meaning of the expression also accords with principle there must be a weighty reason for a reduction from murder to the lesser offence of manslaughter, and not merely a reason which just passes the trivial [36]. In the authorities reviewed, the expression substantially impaired has been consistently treated as a question of degree, and one that should be left to the jury. The cases repeated and re emphasised, but did not attempt to re define the statutory expression. However, they did proceed on the assumption that substantially in this context meant impairment which was of some importance, or a serious degree of impairment. It was not contemplated in any of the cases considered that it was sufficient that the impairment merely passed triviality [9 26]. Where triviality was mentioned, as in R v Lloyd [1967] 1 QB 175, it was in the context of a direction to the jury that substantial impairment fell between two extremities: more than merely trivial, but less than total. It is clear from the decision in that and other appeals that there was no intention to direct that any impairment beyond the trivial sufficed, or that the reference to the extremities of possible impairment should provide a definition of substantial impairment. Beyond the merely trivial, what amounted to a substantial impairment was a matter of degree for the jury. There is usually no need for the jury to be directed on the meaning of ordinary words: any attempt to find synonyms or re define such words complicates the jurys task and leads to further debate. There will be many cases where the need for elucidation does not arise, for example where the suggested impairment, if it existed, is clearly substantial. If the need does arise, the judge may offer help on what the expression means, but must avoid substituting a single synonym, and it is usually better to avoid the spectrum referred to in R v Lloyd [37 42].
Between 1954 and March 1959 Percy McDonald attended Battersea power station in the course of his employment as a lorry driver for a firm known as Building Research Station to collect pulverised fuel ash. Between 1954 and January 1957 he was at the power station approximately twice a month but this fell to about twice every three months from January 1957. While at the power station as a casual visitor Mr McDonald went into areas where asbestos dust was generated by lagging work. The lagging work involved mixing asbestos powder with water in order to make a paste, as well as sawing preformed asbestos sections and stripping off old asbestos lagging. Mr McDonald was diagnosed as suffering from mesothelioma in July 2012 and sadly died at the beginning of February 2014. His widow, Edna McDonald, took his place as respondent in the appeal. The National Grid Electricity Transmission Plc (National Grid) is the successor body to the occupiers of the power station. At trial, Mr McDonald alleged that those occupiers had been in breach of their statutory obligations under regulation 2(a) of the Asbestos Industry Regulations 1931 (the 1931 Regulations) and section 47 of the Factories Act 1937 (the 1937 Act). He also brought claims in negligence against the successors to his former employers and National Grid, but these claims were dropped before the matter came to the Supreme Court. The trial judge dismissed all Mr McDonalds claims. On appeal, the Court of Appeal allowed Mr McDonalds appeal under the 1931 Regulations but dismissed his appeal under the 1937 Act. National Grid appeals to the Supreme Court in the first appeal and Mr McDonalds representative cross appeals in the second appeal. The Supreme Court dismisses National Grids appeal and dismisses the cross appeal. On the appeal, the decision was by a majority of three (Lord Kerr gives the lead judgment and Lady Hale and Lord Clarke give concurring judgments) to two (Lord Reed, with whom Lord Neuberger agreed). On the cross appeal, the decision was by a majority of four to one, with Lady Hale in the minority. On the first appeal, the majority conclude that the 1931 Regulations apply to all factories and workshops processing asbestos, not just those dealing with asbestos in its raw, unprocessed condition. The clear wording of the Regulations indicated this, focusing as they did on the processes in question rather than the nature of the industry. [27, 98, 116] The Secretary of State made these Regulations to counteract the harm that could be done by the manipulation of asbestos rather than focusing on any particular setting where this might happen [96, 117]. The mixing of asbestos during lagging work at the power station fell within the meaning of paragraph (i) of the Preamble to the 1931 Regulations. The Secretary of State was alive to the risk posed by mixing asbestos in settings other than a narrowly defined manufacturing context [49, 124]. Lady Hale points out that this interpretation of mixing was compatible with Cherry Tree Machine Co Ltd v Dawson sub nom Jeromson v Shell Tankers (UK) Ltd [2001] EWCA Civ 101, which the Supreme Court unanimously approves in this case [100]. Lord Kerr holds that a worker in a factory or workshop where processing of asbestos took place was within the scope of the 1931 Regulations, even if not mixing asbestos himself or directly employed by the occupiers of the premises where asbestos was being mixed. The Secretary of State made these Regulations under section 79 of the Factory and Workshop Act 1901 (the 1901 Act), which empowered him to afford protection to workers not involved in the asbestos processing. The risk of injury which these Regulations sought to protect against arose from inhalation of dust or fumes. There was therefore no logical reason to exclude those who were liable to exposure despite not working directly with asbestos [53]. Lady Hale concludes that liability under the 1901 Act is imposed on occupiers (rather than employers) to protect people in the premises they occupied, therefore the question was whether a person was employed in the power station, not whether he was employed by the occupier [103 104]. Lord Clarke deems that Mr McDonald was in a real sense working for the purposes of the power station and agrees with Lord Kerr [127]. Lord Reed, with whom Lord Neuberger agrees, undertakes an extensive review of the background to the 1931 Regulations. They would dismiss the appeal on the grounds that the 1931 Regulations are not engaged as they are intended to apply solely to asbestos processing within the asbestos industry. They hold that the Regulations were penal legislation which should be construed narrowly [158]. Lord Neuberger, Lord Kerr, Lord Clarke and Lord Reed would dismiss the cross appeal. They agree that, while the rest of the statutory criteria are met, there is no sufficient evidence to rebut the Court of Appeals conclusion that Mr McDonald had failed to establish that a substantial quantity of dust had been given off by the mixing process, as required by section 47(1) of the 1937 Act [90, 209]. Lady Hale would allow the cross appeal on the grounds that there is evidence upon which it could be determined that a substantial quantity of dust had been given off [108 109].
The question in this appeal is whether the court has the power to order a closed material procedure for the whole or part of the trial of a civil claim for damages. This question is formulated as a preliminary issue which arose in the context of claims brought by the respondents against the appellants. The respondents claimed compensation for their alleged detention, rendition and mistreatment by foreign authorities in various locations, including Guantanamo Bay. They claimed that the appellants had been complicit in what they alleged had happened. These claims settled prior to the hearing before the Supreme Court. However, the appellants pursued their appeal which was accepted by the Supreme Court on the basis that a decision is needed to clarify the law on this point of general importance. The appellants claimed that they had security sensitive material within their possession which they wished the court to consider in their defence but which could not be disclosed to the respondents. They requested that this material be put into a closed defence and that the proceedings take place with parallel open and closed hearings and judgments. The respondent and the other claimants objected and this dispute formed the basis of the preliminary issue. The preliminary issue defined closed material procedure as a procedure whereby a party can withhold certain material from the other side where its disclosure would be contrary to the public interest. The closed material would be available to special advocates, who act in the interests of the excluded party but who cannot take instructions from them, and the court. At first instance, Silber J granted a declaration that it could be lawful and proper for a court to order a closed material procedure in a civil claim for damages: [2009] EWHC 2959 (QB). The Court of Appeal (Lord Neuberger MR, Maurice Kay and Sullivan LJJ) disagreed. They denied that a court had such a power: [2010] EWCA Civ 482. The Supreme Court, by a majority, dismisses the appeal. The lead judgment is given by Lord Dyson, with whom Lords Hope, Brown and Kerr agree. Lord Phillips would also dismiss the appeal but for different reasons. Lord Mance, with whom Lady Hale agrees, and Lord Clarke give dissenting judgments. Lord Rodger, who died before judgment was given in this case, had indicated that he would have dismissed the appeal. The court unanimously decides that there is no power at common law to replace public interest immunity (PII), whereby a judge decides whether in the public interest certain material should be excluded from a hearing, with a closed material procedure. Such a change could only be for Parliament to make: [67] [69], [107], [152], [192]. Lords Dyson, Hope, Brown and Kerr further hold that there is no power at common law to introduce a closed material procedure following the conclusion of the normal PII process. A closed material procedure, unlike the law relating to PII, involves a departure from the principles of open and natural justice, which are essential features of a common law trial: [10] [14]. In certain specified cases, Parliament has enacted legislation which departs from the open justice and natural justice principles in introducing a form of closed material procedure and special advocates. This legislation responds to the increasing need in recent years to balance the public interest in maintaining a fair justice system with the public interest in the protection of national security. The court has an inherent power to regulate its own procedure. In so doing it may introduce innovations in the interests of justice. However, the court cannot exercise its power to regulate its own procedures in such a way that will deny parties their common law right to a fair trial: [18] [22]. The case of R v Davis [2008] AC 1128 is analogous. The House of Lords in Davis decided that the right to be confronted by ones accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament could do that. The closed material procedure excludes a party from the closed part of the hearing. This prevents him from being able to see and challenge the evidence and submissions made in the closed hearing. It also prevents him from reading the closed part of the judgment. He may never know why his case was decided the way it was. The use of special advocates can mitigate some of these defects but they cannot cure them. In many cases special advocates will be hampered by not being able to take instructions from their client on the closed evidence. Accordingly, a closed material procedure cannot properly be described as a development of the common law process of PII: [27] [37]. There is no clear and established line of authority to support the proposition that the court has power to order a closed material procedure in the absence of statutory authority: [51] [59], [85]. There are certain limited classes of case, such as wardship cases in which the interests of the child are paramount, or intellectual property cases where the whole object of the proceedings is to protect a commercial interest, where a departure from the normal rule is justified for special reasons in the interests of justice. However, these cannot be relied upon to justify the creation of a general rule applicable to all civil litigation: [62] [66]. It is not for the courts to extend something as controversial as the closed material procedure beyond the boundaries which Parliament has chosen to draw for its use. If this is to be done at all, it is better done by Parliament: [47] [48], [67] [69], [72] [74], [78]. The question of whether it would be open to the court to adopt a closed material procedure if the parties consented does not need to be decided in this case and is left open: [46], [75], [99]. In Lord Browns view, however, consent cannot justify recourse to a closed material procedure: [84]. Lord Phillips leaves the question of whether there is a common law power to permit a closed material procedure open: [196]. Lord Mance, with whom Lady Hale agrees, and Lord Clarke would have held that the court has the power, in certain circumstances, to order a closed material procedure. They disagree, however, over what those certain circumstances are. In Lord Mances view, the court may order a closed material procedure, but only where the closed material is in the defendants possession and the claimant consents in order to avoid his claim being struck out: [112] [121]. For Lord Clarke, the circumstances in which a court may order a closed material procedure are not necessarily so limited. In Lord Clarkes view, after the PII process has been completed the parties should consider their respective positions and make representations to the judge as to the appropriate way forward, which may be to order a closed material procedure. The precise circumstances in which a closed material procedure may be ordered would be for the court to work out in a concrete case: [159] [188].
This issue in this appeal is when time starts to run for a claim by a part time judge to a pension under the Part time Workers Directive (Directive 97/81), as applied by the Part time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) (PTWR). Regulation 5 of the PTWR provides that a part time worker is entitled not to be treated by their employer less favourably than the employer treats a comparable full time worker, either with regard to the terms of their contract or by being subject to any other detriment. Regulation 8 of the PTWR provides insofar as is relevant: (2) Subject to paragraph (3), an employment tribunal shall not consider a complaint under this regulation unless it is presented before the end of the period of three months beginning with the date of the less favourable treatment or detriment to which the complaint relates or, where an act or failure to act is part of a series of similar acts or failures comprising the less favourable treatment or detriment the last of them For the purposes of calculating the date of the less favourable treatment or detriment under paragraph (4) (2) (a) where a term in a contract is less favourable, that treatment shall be treated, , as taking place on each day of the period during which the term is less favourable; The Appellants are four judges, each of whom has held one or more appointments as fee paid part time judges, in some cases moving between such part time and full time salaried appointments. Judicial pensions, for those who are appointed on or after 31 March 1995, are provided for under the Judicial Pensions and Retirement Act 1993 (the 1993 Act). The basic concept in that Act is qualifying judicial office (s.1). The Appellants, so long as not being paid on a salaried basis, were excluded from the definition of qualifying judicial office, and therefore were excluded from rights to a pension. The Appellants brought claims on the basis that they had been the subject of less favourable treatment in the provision to them of a judicial pension. Each lodged a claim with the Employment Tribunal more than three months after the end of a part time appointment, and therefore out of time if that is the relevant date for regulation 8 of the PTWR, but within time if the relevant date is the date of retirement. At first instance EJ Macmillan held that the three months started to run from the end of any part time appointment, and thereby held that the claims were brought out of time. There has been no substantive judicial consideration of this issue before the Upper Tribunal and Court of Appeal, as the issue has been treated as subject to the appeal in Ministry of Justice v OBrien. However, before the Supreme Court the issue is now understood as one of domestic law, and has been argued fully. The determinative question is: when did the less favourable treatment occur? The Supreme Court unanimously allows the appeals. Lord Carnwath gives the sole judgments, with which the other Justices agree. As judicial officers are not employed under a contract of employment, the PTWR must be construed in an artificial context. determining this case, it must be borne in mind that the judicial pension scheme is not based upon individual appointments. Instead, regard must be had to the composite term qualifying judicial office, which may include a number of different appointments [31]. That special feature of the scheme must be taken into account when making the comparison between part time and full time judges called for by the PTWR, as it may be misleading or unfair to direct attention to the nature and timing of individual part time appointments [32]. There is no reason why entitlement to pension should be governed by the varied combinations of fee paid or salaried offices undertaken by different individual judges. This does not sit well with the aggregate approach provided for by the 1993 Act [33]. Regulation 5 of the PTWR makes clear that unfavourable treatment may relate to the terms of a contract or any other detriment resulting from an act or failure to act by the employer. By analogy, in the context of judicial pensions, a part time judge may properly complain: (1) during their period of service that their terms of office do not include proper provision for a future pension; and, (2) at the point of retirement, that there has been a failure to make a proper pension available. The former does not exclude the latter [34]. This accords with case law, which indicates that the point of unequal treatment occurs at the time the pension falls to be paid, and accords with the common sense of the matter [35].
This appeal brought by the husband concerns the jurisdiction of an English court to make a maintenance order in favour of the wife under section 27 of the Matrimonial Causes Act 1973 (as amended) (section 27) when the parties had mostly lived in Scotland and the divorce proceedings were conducted there. The parties married in England in 1994 and lived together in Scotland between 1995 and 2012, when they separated and the wife returned to England. She issued a divorce petition in England in July 2013 and the husband issued a writ for divorce in Scotland in October 2014. As the parties had last lived together in Scotland, the application for divorce was assigned to the Scottish court. On 13 January 2015 the wife consented to an order dismissing her petition in England and she issued an application under section 27 in England for maintenance payments. The husband applied to stay or dismiss this application on the basis that the English court did not have or should not exercise jurisdiction to hear the application. The English High Court rejected the husbands challenge and ordered maintenance to be paid by the husband. The husband unsuccessfully appealed against the decision to the Court of Appeal. The husband now appeals to this Court in relation to the jurisdictional issues. The issues relate to Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (the Maintenance Regulation) and Schedule 6 to the Civil Jurisdiction and Judgments (Maintenance) Regulations 2011 (Schedule 6 and the 2011 Regulations, respectively), promulgated by the Secretary of State for Justice pursuant to section 2(2) of the European Communities Act 1972 (the ECA 1972). By a majority, the Supreme Court dismisses the appeal. Lord Sales gives the lead judgment, with which Lord Kerr agrees. Lady Black gives a concurring judgment. Lord Wilson gives a dissenting judgment, with which Lady Hale agrees. In the lead judgment, Lord Sales sets out the four issues that arise on the appeal: (1) whether under section 27 an English court has jurisdiction to make any order for maintenance in a case with no international dimension; (2) if so, whether Schedule 6 allows for an English court to retain its previous discretion to stay maintenance proceedings before it on the ground of forum non conveniens (ie the courts discretion to make an assessment as to which jurisdiction is the most appropriate); (3) if not, whether the purported removal of that discretion was outside the scope of the Secretary of States powers in section 2(2) of the ECA 1972; and (4) if not, whether the husbands divorce proceeding in Scotland is a related action for the purposes of article 13 of the Maintenance Regulation and the corresponding provision in Schedule 6 and, accordingly, whether the English court should decline jurisdiction in respect of the wifes claim for a maintenance order under section 27 [7]. Lord Sales considers that the European Union (EU) legislation governing jurisdiction in cross border cases treats maintenance obligations and questions of marital status, including divorce, as separate matters for the purposes of jurisdiction [8] [24]. Maintenance obligations are covered by their own inter state jurisdiction regime set out in the Maintenance Regulation [17]. Schedule 6 applies the provisions of the Maintenance Regulation to the allocation of jurisdiction for intra state cases within the United Kingdom relating to maintenance [22] [23]. On the first issue, the husband submits that section 27 can only apply if a case falls to be governed by both the Maintenance Regulation and by Schedule 6, which would have the effect of it only applying in inter state cases. Lord Sales considers (and Lord Wilson agrees) that section 27 does not require that both the Maintenance Regulation and Schedule 6 apply. Section 27 refers to both the Maintenance Regulation and Schedule 6 only in the sense that together they cover the whole possible field of inter state cases and intra state cases [26], [135] [140]. On the second issue, Lord Sales follows EU case law to hold that the scheme of the EU legislation is inconsistent with the courts of a Member State retaining any discretionary power to stay proceedings on forum non conveniens grounds [28]. This is particularly applicable to the Maintenance Regulation, which aims to afford special protection to a maintenance creditor by giving him or her the right to choose jurisdiction [29]. Schedule 6 replicates the scheme of the Maintenance Regulation in domestic law for intra state cases, and accordingly has the effect of removing any discretion based on the domestic forum non conveniens doctrine [34]. On the third issue, Lord Sales considers (and Lord Wilson agrees) that the making of the 2011 Regulations is within the wide power conferred on the Secretary of State by section 2(2) of the ECA 1972 to make subordinate legislation [38], [141] [145]. On the fourth issue, in Lord Saless judgment the husbands divorce proceeding in Scotland is not a related action within article 13 of the Maintenance Regulation, so that article (and the corresponding provision in Schedule 6) does not permit the English court to decline jurisdiction [40]. The Maintenance Regulation must be considered in light of its fundamental object of conferring the right to choose jurisdiction on a maintenance creditor [41]. The word actions in article 13 refers primarily to maintenance claims to which the special regime in the Regulation applies. Holding it to mean any legal proceedings would undermine the object of the Regulation [45]. There is no relevant connection between the wifes section 27 maintenance claim in England and the Scottish proceedings concerned with determining marriage status [46]. In her concurring judgment, Lady Black agrees with Lord Saless conclusion on article 13, despite the fact that it leads to the potential fragmentation of the proceedings required to resolve financial affairs upon divorce. Based on the wording of article 13, with the object of protecting the maintenance creditor in mind, she considers that the English and the Scottish proceedings are not related actions [91]. In his dissenting judgment, Lord Wilson views the English and Scottish proceedings as related actions for the purpose of article 13, giving the English court the power to stay or decline the wifes maintenance application. He would adopt a broad, common sense approach to the interpretation of the article [162]. As a result, Lord Wilson would have allowed the husbands appeal [163].
The Supreme Court unanimously allows the appeal, holding that the reasonable tolerability test applied by the Court of Appeal is contrary to the Convention and should not be followed in the future. HJ and HTs cases are remitted for reconsideration in light of the detailed guidance provided by the Supreme Court. There is no dispute that homosexuals are protected by the Convention, membership of the relevant social group being defined by the immutable characteristic of its members sexuality [paras [6] and [10] per Lord Hope and para [42] per Lord Rodger]. To compel a homosexual person to pretend that their sexuality does not exist, or that the behaviour by which it manifests itself can be suppressed, is to deny him his fundamental right to be who he is. Homosexuals are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self expression in matters that affect their sexuality, as people who are straight [paras [11] and [14] per Lord Hope and para [78] per Lord Rodger]. The Convention confers the right to asylum in order to prevent an individual suffering persecution, which has been interpreted to mean treatment such as death, torture or imprisonment. Persecution must be either sponsored or condoned by the home country in order to implicate the Convention [paras [12] and [13] per Lord Hope]. Simple discriminatory treatment on grounds of sexual orientation does not give rise to protection under the Convention. Nor does the risk of family or societal disapproval, even trenchantly expressed [paras [13], [15] and [22] per Lord Hope and para [61] per Lord Rodger]. One of the fundamental purposes of the Convention was to counteract discrimination and the Convention does not permit, or indeed envisage, applicants being returned to their home country on condition that they take steps to avoid offending their persecutors. Persecution does not cease to be persecution for the purposes of the Convention because those persecuted can eliminate the harm by taking avoiding action [paras [14] and [26] per Lord Hope and paras [52] [53] and [65] per Lord Rodger]. The reasonable tolerability test applied by the Court of Appeal must accordingly be rejected [para [29] per Lord Hope and paras [50], [75] and [81] per Lord Rodger]. There may be cases where the fear of persecution is not the only reason that an applicant would hide his sexual orientation, for instance, he may also be concerned about the adverse reaction of family, friends or colleagues. In such cases, the applicant will be entitled to protection if the fear of persecution can be said to be a material reason for the concealment [paras [62], [67] and [82] per Lord Rodger]. Lord Rodger (with whom Lords Walker and Collins and Sir John Dyson SCJ expressly agreed), at para [82] and Lord Hope, at para [35], provided detailed guidance in respect of the test to be applied by the lower tribunals and courts in determining claims for asylum protection based on sexual orientation.
Under the Mental Health Act 1983 (MHA) a Crown Court may impose upon a mentally disordered offender a hospital order together with a restriction order, if this is considered necessary to protect the public from serious harm. Such a patient is liable to indefinite detention and can only be discharged by the respondent Secretary of State or the First tier Tribunal (FtT). A discharge may be conditional, such that the patient remains subject to recall to hospital as well as to the conditions. The issue in this case is whether the conditions imposed can, if the patient consents, be so restrictive as to amount to a deprivation of liberty within the meaning of article 5 of the European Convention on Human Rights. MM has a diagnosis of mild learning disabilities, autistic spectrum disorder and pathological fire setting. In 2001, when aged 17, he was convicted of arson offences. He was made the subject of a hospital order and a restriction order. Apart from a period of conditional discharge from December 2006 to April 2007, he has been detained in hospital ever since. He is considered to represent a serious risk of fire setting and of behaving in a sexually inappropriate way towards women. MM applied to the FtT for conditional discharge in May 2015. He was prepared to consent to a care plan that required him to live at a particular place, from which he would not be free to leave and would not be allowed out without an escort. The FtT ruled it had no power to impose conditions on discharge which themselves amounted to a deprivation of liberty. The Upper Tribunal held that it had, but the Court of Appeal held that it did not. MM appealed to the Supreme Court, arguing that if this condition cannot be imposed, he will have to remain in conditions of greater security in hospital, and the MHAs rehabilitative purpose will be frustrated. The Supreme Court by a majority of 4 to 1 (Lord Hughes dissenting) dismisses MMs appeal. It holds that the MHA does not permit either the FtT or the Secretary of State to order a conditional discharge of a restricted patient subject to conditions which amount to detention or a deprivation of liberty. Lady Hale (with whom Lord Kerr, Lady Black, and Lord Lloyd Jones agree) gives the main judgment. The Secretary of State has complete control over the conditions imposed on restricted patients and whether the patient should be recalled to hospital. The MHA does not specify what conditions may be imposed. In practice, the conditions usually require residence at a stated address and for both clinical and social supervision [11 12]. The purpose of conditional discharge is to enable the patient to make a safe transition from the institutional setting of a hospital to the community [14]. The word discharge in sections 42(2) and 73(2) MHA, when referring to the conditional discharge of restricted patients, must mean actual discharge from the hospital in which the patient is currently detained, as he remains liable to be detained [20]. Although there is nothing in the MHA which expressly prohibits a condition which amounts to a detention or deprivation of liberty in another setting, there are compelling reasons not to construe ss 42(2) and 73(2) in this way: It is difficult to see why the patients consent would be required for the exercise of a power to impose such a condition, yet all parties agree that consent is needed [30]. The power to deprive a person of his liberty is an interference with a fundamental right. The principle of legality means express language is required. Parliament was not asked to consider whether the general terms of ss 42(2) and 73(2) MHA included a power to impose a different form of detention, without prescribed criteria for such detention or, if imposed by the Secretary of State, any procedural safeguards [31]. As a practical matter, there is always a concern that the patients willingness to comply with the proposed condition is motivated more by his desire to get out of hospital and that he might then withdraw his consent and demand to be released. The patient would not be bound by his consent to comply with the condition [32]. Most compellingly, such a power would be contrary to the whole scheme of the MHA, which provides in detail for only two forms of detention (in a place of safety for up to 36 hours, or in a hospital), each with associated specific powers to convey a patient there, to detain him and to retake him if he absents himself from such detention without leave. There is no equivalent express power to convey a conditionally discharged restricted patient to the place where he is required to live or to detain him there, nor is he liable to be taken into custody and returned anywhere unless and until he is recalled to hospital by the Secretary of State [33 36]. The fact that a conditionally discharged restricted patient can apply far less frequently than a hospital patient to the FtT for his release indicates that Parliament did not consider that such patients might be subject to conditions which required the same degree of protection as those deprived of their liberty [37]. Accordingly, the MHA does not permit either the FtT or the Secretary of State to impose conditions amounting to detention or a deprivation of liberty upon a conditionally discharged restricted patient and MMs appeal is dismissed [38]. Lord Hughes, dissenting, would have held that the FtT did have the power, if it considered it right in all the circumstances, to impose conditions on the discharge of a restricted patient so long as the loss of liberty involved was not greater than that already authorised by the hospital and restriction orders. If the treatment of the patient had progressed to the point where the nature of the detention could be relaxed, it was plainly in the public interest that it should be, and he did not consider that the MHA prohibited such arrangements [39 49].
There are two appeals before the Supreme Court, both of which raise issues that are important to the international market in telecommunications. The appeals concern actions for infringement of UK patents said to be essential to the implementation of international standards for mobile telephony, such that it is not possible to make, sell, use or operate mobile phones and other equipment that is compliant with the standards without infringing the patents. Patents of this kind are called Standard Essential Patents (SEPs). The international standards in question are those set by the European Telecommunications Standards Institute (ETSI) for 2G (GSM), 3G (UMTS) and 4G (LTE). ETSI has over 800 members from 66 countries across five continents, and is recognised as the standard setting organisation in the European Union telecommunications sector. Amongst other things, it produces the technical standards needed to achieve a large unified European market for telecommunications, so that mobile phones and other telecommunications equipment can be used internationally. Once a standard has been adopted, there is a risk that owners of SEPs could disrupt the international telecommunications market by refusing to license their inventions or by charging excessively high royalties for their use. ETSI therefore requires its members to declare any patents which might be used in a telecommunications industry standard. Under its IPR Policy, ETSI then requires the SEP owner to give an irrevocable undertaking to license their patented technology on terms that are fair, reasonable and non discriminatory (FRAND). This gives those implementing the standards access to the technology protected by SEPs, while also providing the SEP owners with a fair reward for the use of their SEPs. The first appeal (the Unwired appeal) concerns an action brought by Unwired against Huawei for infringement of five UK patents which Unwired claimed to be SEPs. The SEPs in issue form part of a worldwide patent portfolio, which Unwired acquired from Ericsson. Unwireds business is licensing patents to companies who make and sell telecommunications equipment. Ericsson had previously licensed the relevant SEPs to Huawei, but the licence expired in 2012. In 2015 and 2016, three technical trials were held in which two of the SEPs were found to be both valid and essential. Two other SEPs were found to be invalid. Huawei has also been held to be infringing one or more of Unwireds SEPs in Germany, and its challenge to two of Unwireds patents in China has not succeeded. In the subsequent non technical trial, the judge held that Unwireds undertaking to license its SEPs on FRAND terms was justiciable and enforceable in the English courts. He also held that an implementer who refused to take a licence on terms which the court held to be FRAND exposed itself to an injunction for infringing a UK patent. In the circumstances, willing and reasonable parties would agree on a global license, which was the FRAND licence for a licensor with Unwireds patent portfolio and an implementer with almost global sales like Huawei. The judge went on to determine the royalty rates and other licence terms that he considered to be FRAND. The second appeal (the Conversant appeal) concerns an action brought by Conversant against Huawei and ZTE for infringement of four of its UK patents. These form part of a portfolio of about 2,000 patents and patent applications, covering 40 countries, which Conversant acquired from Nokia in 2011. Conversant argues that the portfolio includes 28 patent families which are SEPs. Like Unwired, Conversant is an intellectual property licensing company which licenses patents for royalty income. Huawei and ZTE applied for an order dismissing Conversants claims on the basis that the English courts did not have jurisdiction to determine the validity of foreign patents or, in the alternative, for a stay of proceedings on the ground that the English courts were not the appropriate forum for trying the case. The trial judge dismissed both applications. He held that the English courts had jurisdiction to enforce the undertaking made under ETSIs IPR Policy and to determine the terms of a FRAND licence. This did not intrude on the jurisdiction of foreign courts in relation to the validity or infringement of foreign patents, because the terms of any licenses determined by the English courts could be adjusted to reflect relevant rulings of foreign courts. The Court of Appeal upheld the trial judges orders in both the Unwired appeal and the Conversant appeal. Huawei and ZTE now appeal to the Supreme Court. The Supreme Court unanimously dismisses both appeals. The full Court gives the judgment, which confirms that the contractual arrangements ETSI has created under its IPR Policy give the English courts jurisdiction to determine the terms of a global license of a multi national patent portfolio. The appeals raise five issues, all of which are important to the international market in telecommunications [1]. Issue 1: The jurisdiction issue The jurisdiction issue arises in both appeals. The Supreme Court is asked to decide whether the English courts have jurisdiction and may properly exercise a power, without both parties agreement: (a) to grant an injunction to restrain the infringement of a UK patent that is a SEP unless the implementer of the patented invention enters into a global licence of a multi national patent portfolio; and (b) to determine the royalty rates and other terms of such a licence [49]. The Court finds that the English courts have jurisdiction and may properly exercise these powers. Questions as to the validity and infringement of a national patent fall to be determined by the courts of the state which has granted the patent. However, the contractual arrangements ETSI has created under its IPR Policy give the English courts jurisdiction to determine the terms of a license of a portfolio of patents which includes foreign patents [58]. The Court begins by considering Huaweis argument that, properly construed, ETSIs IPR Policy only permits the English courts to determine the terms of a license of UK SEPs and only where those SEPs have already been held by the English courts to be valid and infringed [54]. The Court rejects this argument on the basis that it runs counter to the aims of the IPR Policy and does not adequately take the wider context into account [59 60]. The Court also rejects Huaweis submission that the IPR Policy prohibits a SEP owner from seeking an injunction from a national court where it establishes that an implementer is infringing its patent. Rather, the possibility that a national court might grant an injunction is a necessary part of the balance which the IPR Policy seeks to strike, because it incentivises implementers to negotiate and accept FRAND terms for the use of the SEP owners portfolio [61]. Huawei argues that there is a clear distinction between the terms that operators might choose to agree voluntarily as part of a commercial negotiation and the terms that can be imposed on them by the courts [53]. The Court rejects this distinction. It finds that the IPR Policy envisages both that the courts may decide whether or not the terms of an offered licence are FRAND and that the courts should look to and draw on commercial practice in the real world when making this assessment [62]. The Court goes on to disagree with Huaweis submission (at [51]) that the English courts do not have jurisdiction to determine the terms of a licence of disputed (or potentially disputed) foreign patents. In the present appeals, the lower courts did not attempt to rule on the validity or infringement of foreign patents, which would have been beyond their jurisdiction. Instead, they looked to the industry practice of taking a license of a portfolio of patents and construed ETSIs IPR Policy as promoting that behaviour [63]. If an implementer is concerned about the validity and infringement of particularly significant patents in a portfolio, it could seek to reserve the right to challenge those patents and to require that the royalties payable under the licence should be reduced if the challenge is successful [64 65]. The Court also disagrees with Huaweis submission (at [52]) that the approach of the English courts is out of step with that of foreign courts [66]. It finds that the trial judges approach in the Unwired appeal is consistent with several judgments in other jurisdictions, which contemplate that, in an appropriate case, the courts would determine the terms of a global FRAND licence [67 84]. The Court also dismisses Huaweis argument (at [55]) that it is improper for an English court to exclude Huaweis products from the UK market by exercising a discretion to grant an injunction in respect of an infringement of a SEP [85 90]. Issue 2: The suitable forum issue The suitable forum issue arises in the Conversant appeal only. It has two limbs. The first limb asks whether the High Court should have: (a) set aside service of Huawei and ZTE out of jurisdiction; and (b) permanently stayed the proceedings as against the English subsidiaries of Huawei and ZTE on the basis that China was a more suitable forum for hearing the dispute than England [92]. The suitable forum (or forum conveniens) doctrine requires the English court to decide whether it or a suggested foreign court with jurisdiction would be the more suitable forum for determining the dispute between the parties [94]. Huawei and ZTE argue that the Chinese courts would be a more suitable forum for determining their dispute with Conversant. However, the Court holds that this argument must fail because the Chinese courts do not currently have the jurisdiction needed to determine the terms of a global FRAND licence, at least, without all parties agreement that they should do so. In contrast, the English court has jurisdiction to do this [96 97]. The second limb, which the Court labels case management, is whether the English proceedings should be stayed temporarily until the Chinese proceedings challenging the validity of Conversants Chinese patents have been concluded [92]. The Court finds that the Court of Appeal was right to refuse any case management solution [103 104]. Issue 3: The non discrimination issue The non discrimination issue arises in the Unwired appeal and relates to the requirement that license terms must be non discriminatory. Huawei argues that the non discrimination limb of the FRAND undertaking is hard edged, which means that like situations must be treated alike and different situations differently. SEP owners like Unwired must therefore grant the same or similar terms to all licensees, unless it can be shown that there are objective reasons for treating them differently. Accordingly, Unwired should have offered Huawei a licence with a worldwide royalty rate which was as favourable as those it had previously agreed with Samsung [105 106]. The Court holds that Unwired had not breached the non discrimination limb of the FRAND undertaking [112]. ETSIs IPR Policy requires SEP owners, like Unwired, to make licenses available on fair, reasonable and non discriminatory terms and conditions. This is a single, composite obligation, not three distinct obligations that the licence terms should be fair, and separately, reasonable, and separately, non discriminatory [113]. The non discriminatory part of the undertaking indicates that, to qualify as FRAND, a single royalty price list should be available to all market participants. This must be based on the market value of the patent portfolio, without adjustment for the characteristics of individual licensees [114]. However, there is no requirement for SEP owners to grant licences on terms equivalent to the most favourable licence terms to all similarly situated licensees. Indeed, ETSI previously rejected proposals to include a most favourable licence term of this kind in the FRAND undertaking [116 119]. Issue 4: The competition issue In the Unwired appeal, Huawei argues that Unwireds claim for an injunction should be regarded as an abuse of its dominant position, contrary to Article 102 of the Treaty on the Functioning of the European Union. This is because Unwired has failed to comply with the guidance given by the Court of Justice of the European Union in Huawei v ZTE (Case C 170/13), since it did not make a FRAND licence offer before issuing proceedings for injunctive relief. Huawei argues that, as a result, Unwireds remedy should have been limited to damages [128 129]. The Court considers Article 102 [131], Huawei v ZTE [132 143], the facts of the present case [144 145] and the decisions of the trial judge and the Court of Appeal [146 148]. It confirms that bringing an action for a prohibitory injunction without notice or prior consultation with the alleged infringer will infringe Article 102 [150]. However, the nature of the notice or consultation required will depend on the circumstances of the case: there is no mandatory requirement to follow the protocol set out in Huawei v ZTE. On the facts, what mattered was that Unwired had shown itself to be willing to grant a licence to Huawei on whatever terms the court decided were FRAND. Unwired had not therefore behaved abusively [151 158]. Issue 5: The remedies issue In both appeals, Huawei argues that, even if it is infringing Unwired and Conversants SEPs, the court should not have granted an injunction to stop the continuing infringement. Instead, the more appropriate and proportionate remedy would be for the court to award the claimants damages, based on the royalties which would reasonably be agreed for a licence of the infringed UK patents [159]. The Supreme Court rejects this argument. It holds that there is no basis on which the Court could properly substitute an award of damages for the injunction granted in the Unwired appeal and upheld by the Court of Appeal [163]. There is no risk that Unwired or Conversant could use the threat of an injunction as a means of charging exorbitant fees, since they cannot enforce their rights unless they have offered to license their SEPs on terms which the court is satisfied are FRAND [164 165]. Moreover, an award of damages would not be an adequate substitute for an injunction [166 169].
In deciding whether to institute criminal proceedings, the Crown Prosecution Service (CPS) is required to apply a two stage test. They must first consider whether there is enough evidence to provide a realistic prospect of conviction and, if that is satisfied, decide whether the prosecution would be in the public interest [3]. Under section 25(1) of the Identity Cards Act 2006 (2006 Act) it was an offence for a person to be in possession of an identity card relating to someone else, with the intention of using it to establish his or her identity as that persons identity. However, it is recognised that individuals fleeing persecution may have to resort to the use of false papers to make good their escape. Therefore, under section 31 of the Immigration and Asylum Act 1999 (section 31) (which gives effect to Article 31(1) of the 1951 Convention and Protocol Relating to the Status of Refugees (the Refugee Convention)) it is a defence for a refugee charged under section 25 of the 2006 Act if he came to the UK directly from a country where his life or freedom was threatened and inter alia made a claim for asylum as soon as was reasonably practicable. Directly has been given a purposive interpretation, so that the defence is not excluded by a short term stopover in an intermediate country [5 7]. The appellant was born in Somalia. She is the member of a minority clan. She and her family suffered severe violence from majority clans over the years; both her mother and father were murdered and the appellant was raped and severely beaten. In December 2008, the appellant fled Somalia to Yemen. A year later she left Yemen and travelled to Holland. On 27 December, she flew from Holland to the UK on a false passport. She was challenged by the UK Border Agency on arrival and immediately claimed asylum. The following day, after an initial asylum screening interview, she was arrested on suspicion of committing an offence under section 25(1) of the 2006 Act. The CPS concluded that both the evidential and public interest tests were satisfied. The appellant was remanded in custody. During this time, another CPS lawyer reviewed the appellants case. She considered the section 31 defence but decided it was not available to the appellant because of the year the appellant had spent in Yemen. On 1 June 2010, the appellant appeared before the Crown Court. However, the proceedings were adjourned as a decision on the appellants asylum application was expected shortly and was thought likely to be granted. After the hearing the CPS advocate researched the position of Somali refugees in Yemen and found that although Yemen is a party to the Refugee Convention its procedure for bringing it into effect was poor. The CPS advocate concluded that, subject to the grant of asylum, the prosecution of the appellant should not continue as it was not in the public interest. On 10 June 2010, the appellant was granted asylum. The following day the prosecution offered no evidence at a mention hearing at the Crown Court. The appellant was found not guilty and released from custody [8 20]. The appellant brought proceedings against the CPS, the Home Office and the police for damages on various grounds including a breach of her rights under article 8 of the European Convention on Human Rights (the Convention). The claims against the Home Office and the police were not pursued. The High Court dismissed the appellants claim against the CPS. The decision to prosecute could only engage article 8 if the prosecution targeted an activity which could credibly claim to be an exercise of an article 8 right. Presenting an immigration officer with false papers was not an activity that formed part of the appellants private life [22]. The Court of Appeal upheld the High Courts decision [23]. The Supreme Court unanimously dismisses the appeal. Lord Toulson, with whom Lord Mance, Lord Reed and Lord Hughes agree, gives the lead judgment. Lord Kerr gives a concurring judgment. Although article 8 is broad, it is not so broad as to encompass everything done by a public authority which has the consequence of affecting someones private life in a more than minimal way [25 26]. Neither the Strasbourg authorities nor domestic case law supports the contention that the institution of criminal proceedings, for a matter which is properly the subject of the criminal law and for which there is sufficient evidence, may be open to challenge on article 8 grounds. It would be illogical; for if the matter is properly the subject of the criminal law, it is a matter for the processes of the criminal law. The criminalisation of conduct may amount to an interference with article 8 rights. However, if it does not amount to an unjustifiable interference, then neither does the decision to prosecute for that conduct [31 32]. In this case the decision which is challenged is the initial decision to prosecute. However, it is accepted that the offence under section 25 of the 2006 Act is compliant with Convention rights and it was conceded in the courts below that the CPS was reasonably entitled to consider that the evidential test was satisfied at the time when the decision to prosecute was taken. It is difficult to envisage circumstances in which the initiation of a prosecution against a person reasonably suspected of committing a criminal offence could itself be a breach of that persons human rights. It does not matter that prosecution is not obligatory in the UK; whether it is in the public interest to prosecute is not the same as whether a prosecution would breach an individuals article 8 rights [34]. Article 8 is therefore not applicable to the decision to prosecute [35]. The CPS can be criticised regarding the length of time taken to conclude that the appellants section 31 defence would succeed. However, even if article 8 was applicable, this would not amount to a breach in the decision to prosecute. Even if the original decision to prosecute was an error of judgment by the CPS this would not have breached article 8. It would be different if the the state had deliberately trumped up false charges. However, this would involve the torts of malicious prosecution and/or misfeasance in public office, to which article 8 would add nothing [36]. A decision to prosecute does not itself involve a lack of respect for the autonomy of the defendant but places the question of determining his or her guilt before the court [38]. Lord Kerr raises the possibility that the continuation of the decision to prosecute beyond the time that it should have been recognised that the appellant had an answerable defence under section 31 constituted an interference with the appellants freedom of liberty under article 5 of the Convention and article 8 rights [41 46]. However, argument was not heard on these questions. Lord Kerr therefore also dismisses the appeal. The decision to prosecute did not amount to a breach of article 8 in circumstances where it was accepted there was an evidential basis for prosecuting the appellant at the time of that decision [47].
These were proceedings brought by the Financial Conduct Authority (FCA) against Asset Land Investment plc and associated parties (Asset Land) and its principal owner and director Mr Banner Eve, alleging they had carried on a of regulated activities without authorisation, namely the operation of collective investment schemes, contrary to section 19 of the Financial Services and Markets Act 2000 (FSMA). The activities related to sales of individual plots at six possible development sites in various parts of the United Kingdom. Asset Land divided the sites into plots which they sold to investors, representing that it would be responsible for seeking rezoning for residential development and for arranging a sale to a developer. The High Court held that in the circumstances this amounted to operating a collective investment scheme. The Court of Appeal upheld the decision. Asset Land and Mr Banner Eve appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal by Asset Land and Mr Banner Eve, finding that Asset Lands activities amounted to operating collective investment schemes under section 235 FSMA, and were thus regulated activities for the purpose of section 19. Lord Carnwath gives the lead judgment. Lord Sumption gives a concurring judgment. Section 235 FSMA concerns collective investment schemes constituting by arrangements respecting property which enable participants to receive profits or income arising from the acquisition, holding, management or disposal of the property. To fall within section 235 the participants in the scheme must not have day to day control over the management of the property, and the property must be managed as a whole by or on behalf of the operator of the scheme. Lord Carnwath addresses the four principle grounds of appeal raised by the Appellants. Ground 1 was that the Court of Appeal erred in its identification of the component parts of the arrangements, and gave inadequate weight to an essential feature, namely that each investor intended to, and did own his plot(s) outright. Lord Carnwath rejects the Appellants distinction between the arrangements made by the operator and how they were perceived by others as artificial and unrealistic. He finds that the judge was entitled to take the view that the investors understandings conformed to what was intended by the operator, and was not required to give special weight to contractual or other documents, without regard to their context [54]. Ground 2 was that the court erred in treating the property under section 235(2) and (3) as each of the sites acquired by the company, rather than the aggregate of all the plots sold to individual investors, and should have held that the arrangements left investors with the necessary control. Ground 3 argued that that the critical question under section 235(3)(b) was whether the arrangements reserved to the investor the final decision as to the exploitation of the property pursuant to the arrangements, the correct answer to which was yes. Lord Carnwath deals with Grounds 2 and 3 together, finding that the relevant property for the purposes of section 235(1) is the whole site, but that management control of the property under section 235(2) and (3) may be achieved in different ways, and may not be by legal mechanisms or legal control. Have control in subsection 2 refers to the reality of how the arrangements are to be operated [57 59]. Lord Carnwath holds that the judge was entitled to find that the relevant management of the property as a whole comprised the steps necessary to obtain planning permission and secure a sale to a developer, and it was no part of the arrangement that the investors should have any part in or control over those management activities [60]. Ground 4 was that the courts interpretation would potentially interfere with a wide range of legitimate business arrangements which should not be characterised as collective investment schemes. Lord Carnwath finds that no issue arises, as the judges application of section 235 on the facts as found by him involved no distortion of its natural meaning or intended purpose [63]. Lord Sumption reviews the policy underlying the regulation of collective investment schemes. He finds that whether a scheme is a collective investment scheme depends on what was objectively intended at the time the arrangements are made, and not on what later happens [91]. The essence of such a scheme is a lack of legal or practical control by the investor of the profit generating investment which is the subject of the scheme. The investor exchanges property over which he has entire dominion for units in a larger property over which he has more limited rights. A distinction must therefore be made between (i) cases where the investor retains entire control of the property and simply employs the services of an investment professional (who may or may not be the person from whom he acquired it) to enhance value; and (ii) cases where he and other investors surrender control over their property to the operator of a scheme so that it can be either pooled or managed in common, in return for a share of the profits generated by the collective fund. He holds that the judge was right to say that the mutual understanding based on the core representations made by Asset Land to the investors constituted arrangements under section 235, and that so far as the contract, disclaimer and publicity material were inconsistent with those representations, they were not part of the arrangements [92]. The core representations were consistent only with the property the subject of the arrangements being the whole of a site. It was the whole site which was to be rezoned and sold to a developer, and the profit which each investor would derive would be derived from an aliquot share of the entire sale price for the site [93]. As to day to day control, the question must be in whom would control be vested were control to be required, section 235(2) must refer to the control exercisable by the investors collectively. The investors collectively did not have the relevant control of the management of the whole sites because common parts were retained by Asset Land [94 95]. That left as the critical question whether the property was managed as a whole. That depended on whether, objectively, the functions which the arrangements assigned to Asset Land after the investors acquisition of his plot constituted management of the site [97]. The transaction cannot be viewed only in legal terms, and the judge found that the dominion of the investors over their plots was in reality an illusion. This was a factual assessment by the judge and it is not right for this court to substitute a different view. On this narrower ground, Lord Sumption agrees that the schemes are collective investment schemes [102].
This appeal concerns the extent to which a non member state national, who is the parent of a dependent European Union (EU) citizen child, is protected against deportation from the territory of the EU pursuant to the principle in Ruiz Zambrano v Office national de l'emploi (Case C 34/09) [2012] QB 265 (the Zambrano principle, and a person protected pursuant to it a Zambrano carer). The issue is whether a Zambrano carer enjoys enhanced protection, such that she can only be deported in exceptional circumstances. Ms Robinson is a Jamaican national. She was convicted and imprisoned of a serious criminal offence in the UK of dealing in cocaine and subsequently made the subject of a deportation order. Prior to her removal, she gave birth to a boy, D who is a British national and an EU citizen. Ms Robinson thereafter applied for leave to remain. The Secretary of State refused that application. That is the decision which is the subject of these proceedings. On appeal to the Upper Tribunal, Ms Robinson argued that she had a right to reside in the EU derived under the Zambrano principle from Ds rights as an EU citizen. As she was Ds effective carer, her removal would require D to accompany her to Jamaica. D would thereby be deprived of the enjoyment of his rights as an EU citizen. The Upper Tribunal agreed. It held that her protection from deportation was absolute. The Secretary of State appealed to the Court of Appeal. Before the appeal was heard, the Court of Justice of the EU (the CJEU) delivered judgment in two cases which restricted the extent of the Zambrano principle. In S v Secretary of State for the Home Department (Case C 304/14) [2017] QB 558, (CS), it held that in exceptional circumstances a member state may adopt an expulsion measure provided that it is founded on the personal conduct of that third country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that member state, and that it is based on consideration of the various interests involved, matters which are for the national court to determine (para 50). On that basis, the Court of Appeal allowed the appeal and remitted the case to the Upper Tribunal for redetermination. The Court of Appeal held that the phrase exceptional circumstances in CS was not an additional requirement which the state must satisfy, but merely summarised an exception to the general rule that D, an EU citizen, cannot be compelled to leave the territory of the EU. Ms Robinson appeals to the Supreme Court contending that the phrase created an additional hurdle to deportation. The Supreme Court unanimously dismisses the appeal and holds that the phrase exceptional circumstances does not import an additional hurdle before a Zambrano carer can be deported from the territory of the EU. The case is remitted to the Upper Tribunal for redetermination on that basis. Lord Stephens gives the judgment, with which all members of the Court agree. The Zambrano principle applies in very specific situations where, if a third country (ie non member state) national were not given a right to reside in the EU, a dependent EU citizen would be forced in practice to leave the territory of the EU. The EU citizen would then be deprived of the genuine enjoyment of the substance of the rights conferred by EU citizenship [42] [43]. The right of residence of a Zambrano carer therefore derives from the rights of the dependent EU citizen. It flows from article 20 of the Treaty on the Functioning of the EU [1], which establishes EU citizenship. The CJEU has recognised the significance of EU citizenship, while confirming that it is subject to limitations [31]. The United Kingdoms withdrawal from the EU has no impact on this appeal, but the legal principles to be applied may change after 31 December 2020 [30]. The case law of the CJEU shows that a national court must consider three questions. The first question is to determine whether a third country national has a right of residence under the Zambrano principle. If a right of residence is established, then the second and third questions address whether the third country national can still be deported. Accordingly, the first question is whether there is a relationship of dependency between the third country national and the EU citizen, such that the EU citizen would be forced to accompany the third country national and leave the territory of the EU as a whole [44]. The second question is whether the third country nationals conduct or offence constitutes a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society of the host member state, which may justify, on the ground of protecting the requirements of public policy or public security, an order deporting them from the member state [45]. The third question arises if there is such a threat and requires the national court to carry out a balancing exercise. Against the nature and degree of the threat, it must balance the fundamental rights which the CJEU recognises as relevant in this context: in particular, the right to respect for private and family life in article 7 of the Charter of Fundamental Rights of the European Union. In a case involving children, account is to be taken of the childs best interests, and particular attention must be paid to their age, situation in the member state concerned, and the extent to which they are dependent on their parent. The national court must ensure that the principle of proportionality is observed [46]. The CJEU derived these limitations on the Zambrano principle from some of the language in articles 27 and 28 of Parliament and Council Directive 2004/38/EC (the Directive) [32] [37]. Ms Robinson argues that the CJEUs use of the phrase exceptional circumstances in CS demonstrates that the interests of a child of a Zambrano carer must carry great weight and can only be outweighed by particularly compelling circumstances. She relies on the Advocate Generals opinion in CS that deportation of a third country parent could only be justified in exceptional circumstances based on an on imperative reason relating to public security (CS, AG Opinion para 177) [47] [50]. The Supreme Court holds that the CJEU did not adopt the Advocate Generals proposed test. In CS, the CJEU recognised an exception to the Zambrano principle linked, in particular, to upholding the requirements of public policy and safeguarding public security (CS, para 36). That is inconsistent with an imperative grounds test [51], derived from article 28 of the Directive, which the CJEU did not incorporate into the exception to the Zambrano principle [36]. Viewed in context, the CJEUs reference to exceptional circumstances in CS simply explains that, in the prescribed circumstances, an exception can be made to the rule that a Zambrano carer cannot be compelled to leave EU territory [57]. The CJEU repeated this formulation of the test in Rendn Marn v Administracin del Estado (Case C 165/14) [2017] QB 495 [58] and in KA v Belgische Staat (Case C 82/16) [2018] 3 CMLR 28 [59]. Not once in any of these cases did the CJEU state that the imperative grounds test applies, or that there is an additional hurdle of exceptional circumstances before a Zambrano carer can be deported [60].
Section 64 of the Police and Criminal Evidence Act 1984 (PACE) required the destruction of samples or fingerprints taken from a person in connection with the investigation of an offence if he was cleared of that offence. Section 64(1A) of PACE, enacted by section 82 of the Justice and Police Act 2001 (the 2001 Act), replaced that statutory obligation to destroy data with a discretion. Section 64(1A) provides that samples taken in connection with the investigation of an offence may be retained after they have fulfilled the purposes for which they were taken. Section 64(1A) was supplemented by guidelines issued by the Association of Chief Police Officers (ACPO). These guidelines provided that data should be destroyed only in exceptional cases. The polices retention policy was challenged in R (S) v Chief Constable of the South Yorkshire Police and R (Marper) v Chief Constable of South Yorkshire Police [2004] 1 WLR 2196 (Marper UK). The claimants argued that the retention by the police of their finger prints and DNA samples was incompatible with article 8 of the European Convention on Human Rights (the ECHR). The majority of the House of Lords held that retention did not constitute an interference with the claimants article 8 rights and they held unanimously that in any event any such interference was justified under article 8(2). However, in 2008, the European Court of Human Rights (ECtHR) disagreed: see S and Marper v United Kingdom (2008) 48 EHRR 50 (Marper ECtHR). It found the indefinite retention of data to be an interference which was not justified under Article 8(2). The Governments immediate response was to remove children under the age of 10 from the database. They then opened a consultation period to consider the appropriate legislative reform. This resulted in legislation which, following the change of government in May 2010, was not brought into force. The Coalition Government is promoting new legislation to take account of the ECtHRs judgment. In December 2007, GC was arrested on suspicion of common assault on his girlfriend. He denied the offence. A DNA sample, fingerprints and photographs were taken after his arrest. On the same day he was released on police bail without charge and was subsequently informed that no further action would be taken. In March 2009, C was arrested on suspicion of rape, harassment and fraud. His finger prints and a DNA sample were taken. He denied the allegations. He was charged in respect of the rape allegation but no further action was taken in respect of the harassment and fraud allegations. In the Woolwich Crown Court in May 2009, the prosecution offered no evidence and C was acquitted. In both cases, the appellants requested the destruction of the data taken. Their requests were refused as there were no exceptional circumstances within the meaning of the ACPO guidelines. The appellants issued proceedings for judicial review of the retention of their data on grounds that, in light of Marper ECtHR, its retention was incompatible with their article 8 rights. In the circumstances, the Divisional Court (Moses LJ and Wyn Williams J) dismissed the applications for judicial review and granted a certificate that the cases were appropriate for a leapfrog appeal to the Supreme Court: [2010] EWHC 2225 (Admin). The Supreme Court, by a majority, allows the appeals (Lords Rodger and Brown dissenting). Lord Dyson gives the lead judgment. The majority grant a declaration that the present ACPO guidelines are unlawful because they are incompatible with article 8 of the ECHR. They grant no other relief. Interpretation of section 64(1A) of PACE It is common ground that Marper UK should be overruled. It is also agreed that in light of Marper ECtHR, the indefinite retention of the appellants data under the current retention policy is a breach of article 8 ECHR. The only issue in these appeals, therefore, is what the court should do about that in the present circumstances. Section 3 of the Human Rights Act 1998 (HRA) requires the court, insofar as it is possible to do so, to interpret legislation in a way which is compatible with Convention rights. It is uncontroversial that the statutory purpose of section 64(1A) was to remove the requirement to destroy data after it had served its immediate purpose so as to create a greatly extended database. The extended database was to facilitate the prevention of crime, the investigation of offences and the conduct of prosecutions. However, this does not mean that Parliament intended that, save in exceptional circumstances, the data should be retained indefinitely. Rather, Parliament conferred a discretion on the police to retain data. The natural meaning of the word may in section 64(1A) is permissive not mandatory. There is no reason to suppose that Parliament must have intended its statutory purpose to be achieved in a disproportionate way so as to be incompatible with article 8: [23] [24], [88] [89]. The police were entrusted with setting out the precise means of achieving the statutory purpose: [26]. There is no reason in principle why the police, with the input of the Secretary of State, should be less well equipped than Parliament to create guidelines for the exercise of this power: [40] [44]. Accordingly, it is possible to read section 64(1A) in a way which is compatible with article 8 ECHR as interpreted in Marper ECtHR. A declaration of incompatibility is not appropriate and section 6(2)(b) of the HRA is not engaged: [35], [55], [69]. Lords Rodger and Brown dissent. They would have dismissed the appeals. In their view, the history shows that Parliament's purpose in enacting section 64(1A) was to ensure that in future samples taken from suspects would be retained indefinitely: [94] [97]. Therefore, the police had no choice but to retain the data: [108] [109]. In their view, it is not possible to interpret section 64(1A) in accordance with section 3 HRA: [115], [146] [147]. However, since the police could not have acted differently in substance, what they did and what they continue to do, falls within section 6(2)(a) or section 6(2)(b) HRA and is lawful: [119]. Appropriate relief The present intention of the government is to bring the new legislation into force later this year. In these circumstances, in relation to biometric data it is sufficient to grant a declaration under section 8(1) HRA that the present ACPO guidelines are unlawful because they are incompatible with the ECHR. Where Parliament is seised of the matter, it is not appropriate to make an order requiring a change in the legislative scheme within a specific period or an order requiring destruction of data: [45] [49], [73], [91] [92]. It is, however, open to ACPO to reconsider and amend the guidelines in the interim: [73], [81], [90]. Lord Rodger would have preferred to grant a declaration of incompatibility under section 4 HRA: [121]. In relation to the photographs of GC, in view of the manner in which the issue was raised in the Divisional Court and the consequent lack of any substantive judgment, the Supreme Court expresses no opinion on this part of the appeal: [50] [51].
This appeal concerns the question of whether the Respondent Royal Borough acted unlawfully in seeking to amend the Appellants care package by substituting her night time carer with provision of incontinence pads or absorbent sheets (hereafter pads) when the Appellant is not in fact incontinent. In September 1999, the Appellant, Ms McDonald, suffered a stroke leaving her with severely limited mobility. She also suffers from a small and neurogenic bladder which makes her have to urinate some two to three times a night. Up to now she has dealt with this by accessing a commode with the help of a carer provided by the Respondent Royal Borough as part of her care package. In November 2008, however, the Respondent proposed instead that the appellant should use pads, avoiding the need for a night time carer and thereby providing her with greater safety (preventing the risk of injury whilst she as assisted to the commode), independence and privacy and in addition reducing the cost of her care by some 22,000 per annum. It is this decision the Appellant is seeking to challenge, maintaining that the thought of being treated as incontinent (which she is not) and having to use pads is an intolerable affront to her dignity. In the High Court, the deputy judge dismissed Ms McDonalds arguments and held that it was open to the Respondent to meet Ms McDonalds need, identified in the Needs Assessment dated 2 July 2008 as assistance to use the commode at night, in a more economical manner by provision of pads. The Court of Appeal disagreed holding that the clear language of the Needs Assessment could not be extended in a way proposed by the deputy judge and that at the time when proceedings were commenced the Respondents were in breach of their statutory duty. However, since the Respondents decision to amend the care package was not in fact put into operation, and since the need had been reassessed in the Care Plan Reviews of November 2009 and April 2010 as the appellants night time toileting need, the Appellant had no substantial complaint. In the Supreme Court, the Appellant put her argument against the Respondents decision on four separate basis: (i) the 2009/2010 Care Plan Reviews did not in fact contain a reassessment of her needs; (ii) the decision breached Ms McDonalds rights under article 8 of the European Convention on Human Rights (article 8); (iii) the decision was taken in breach of section 21 of the Disability Discrimination Act 1995 (DDA); and (iv) the Respondents failed to have due regard to the need to promote equality of opportunity of disabled persons under section 49A of the DDA (now superseded by comparable provisions in the Equality Act 2010). The Supreme Court, by a majority of 4 1, dismissed the appeal. The lead judgment was given by Lord Brown. Lord Dyson gave a separate concurring judgment. Lord Walker agreed with Lord Brown and Lord Dyson, delivering a short opinion on the point raised by Lady Hale in her dissenting opinion. Lord Kerr agreed with the majoritys conclusion but for different reasons on issue 1. Lady Hale gave a dissenting judgment for the Appellant on a point that, although not taken by the Appellant, was raised in Age UKs intervention. Issue 1 the 2009/2010 Care Plan Reviews The court agreed with Rix LJs conclusion in the Court of Appeal. In accordance with the Fair Access to Care Services (FACS) Guidance issued by the Secretary of State, the Care Review Plans could and in fact did incorporate a review of Ms McDonalds needs: [12], [52]. Care plan reviews are usually drafted by social workers rather than lawyers and thus should be construed in a practical way: [53]. Given the history of consultation in this case, the Respondent complied with the relevant FACS Guidance: [13], [55]. Lord Kerr agreed with the majority but on a narrower basis. Although the Respondent did not intend to carry out a re assessment of the Appellants needs in the 2009/2010 Care Plan Reviews, in fact the exercise then conducted yielded sufficient information to allow the court to conclude that the Appellants needs could be properly re cast: [38]. In this context, the definition of needs includes the means by which those needs are to be met: [40]. Issue 2 Article 8 The Appellant could not establish interference with her article 8 rights. The Respondent respected Ms McDonalds dignity and autonomy, allowing her to choose the details of her care package. Even if article 8 interference were established, it would be justified under article 8(2) on the ground that it is (a) necessary for the economic well being of the Respondent Royal Borough and the interests of its other service users and (b) a proportionate response to the Appellants needs by affording her greater privacy and protection from injury: [19]. Issue 3 section 21 of the DDA Under section 21 of the DDA, the Respondent may not operate any practice, policy or procedure which makes it impossible or unreasonably difficult for disabled persons to receive any benefit conferred on them. The Appellant failed to show that the Respondents decision could properly be characterised as a practice, policy or procedure and thus the Respondent did not breach its section 21 duty. Even if that were not so, the Respondents acts would have been justified as constituting a proportionate means of achieving a legitimate aim within the meaning of section 21D(5): [22]. Issue 4 section 49A of the DDA Where the public authority is discharging its functions under statutes which expressly direct its attention to the needs of the disabled persons, it may be entirely superfluous to make express reference to section 49A of the DDA. It would be absurd on the facts of the present case to infer a breach of section 49A of the DDA from an omission to refer to that section in any of the Respondents documentation: [24]. Issue 5 section 2(1) of the Chronically Sick and Disabled Persons Act 1970 (CSDPA) Lady Hale would have allowed Ms McDonalds appeal on a different basis outlined by Age UK in its intervention, namely that it was Wednesbury irrational for the Respondent Royal Borough to characterise the Appellant as having a need different from the one she in fact has: [78]. Under section 2(1) of the CSDPA disabled people have a right to practical assistance from their local authority to meet their needs. In complying with section 2(1) the local authority has to answer rationally the following two questions: (i) what are the needs of the disabled person and (ii) what is necessary to meet those needs: [69]. It is clear that the need for help to get to the commode is so different from the need for protection from uncontrollable bodily functions that it is irrational to confuse the two, and meet the one need in the way that is appropriate to the other: [75].
Mr Rahmatullah, a Pakistani citizen, was transferred to US forces after being detained by British forces in February 2004 in an area of Iraq under US control. Shortly after that, the UK authorities became aware that US forces intended to transfer him out of Iraq. That transfer took place without the UK having been informed of it. By June 2004 UK officials knew that Mr Rahmatullah was no longer in Iraq. He had been taken to Afghanistan and was being held in a detention facility in Bagram Air Field and there he has remained. On 15 June 2010 the recommendation of a detainee review board of the US army that Mr Rahmatullah be released was approved by a senior officer but this has not taken place. On 23 March 2003 a Memorandum of Understanding regarding the transfer of those captured in the fighting in Iraq was signed on behalf of the armed forces of the US, UK and Australia (the 2003 MOU). The 2003 MOU was to be implemented in accordance with the Geneva Convention Relative to the Treatment of Prisoners of War (GC3) and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC4). The 2003 MOU provided that any prisoners of war, civilian internees, and civilian detainees transferred by the UK would be returned by the US to the UK without delay upon request by the UK (clause 4). It also provided that the removal of transferred prisoners of war away from Iraq would only be made by agreement between the UK and the US (clause 5). The 2003 MOU was not legally binding. It was a diplomatic agreement between the countries concerned. The Divisional Court refused an application made on Mr Rahmatullahs behalf for a writ of habeas corpus requiring his release. On appeal, the Court of Appeal allowed Mr Rahmatullahs appeal and issued a writ of habeas corpus requiring the UK to seek his return or at least demonstrate why it could not. The Secretary of State requested the US authorities to return Mr Rahmatullah. A letter was received in response from the US deputy assistant Secretary of State for Defense. The US authorities did not agree to return Mr Rahmatullah to the UK. The letter stated that the US had already received a request from the Government of Pakistan for Mr Rahmatullah's repatriation, and that they considered it to be more appropriate to discuss the conditions of transfer directly with the Government of Pakistan. The Court of Appeal found that this letter was a sufficient response to the writ of habeas corpus and that was the end of the matter. The Secretary of State appealed the decision of the Court of Appeal to issue the writ of habeas corpus and Mr Rahmatullah cross appealed the decision that the response by the US was sufficient to demonstrate that the UK could not secure his release. The Supreme Court unanimously dismisses the appeal of the Secretary of State and by a majority of 5 2 (Lady Hale and Lord Carnwath dissenting) dismisses the cross appeal of Mr Rahmatullah. Lord Kerr gave the leading judgment with which Lord Dyson and Lord Wilson agreed. The UK does not need to have actual custody of Mr Rahmatullah to exercise control over his release as habeas corpus is a flexible remedy [42 43]. It is sufficient for the issuing of a writ of habeas corpus that there was material before the court suggesting that there was a reasonable prospect of the UK obtaining his release, OBrien [1923] AC 603 applied [46 48, 64]. The fact that the 2003 MoU was not legally binding does not reduce its significance. The UK needed the agreement to show that it had effectively ensured that the Geneva Conventions (GC) would be complied with. It provided the essential basis of control for the UK authorities over prisoners who had been handed over to the US [8 11]. The assertion by a witness for the Secretary of State that it would be futile to request Mr Rahmatullahs return was not supported by any evidence. Such a claim was surprising given the nature and terms of the 2003 MoU [15]. Although the legality of Mr Rahmatullahs detention did not need to be determined for the purposes of this appeal, there was clear prima facie evidence that he is detained unlawfully under the GC. The UK was under a duty to ensure that Mr Rahmatullah was not being held in breach of the GC or to request his return [22 40]. The issue of the writ was not an instruction to the Government to act in any particular way or to engage in diplomacy. It merely reflected the fact that there were sufficient grounds for believing that the UK Government could obtain control over the custody of Mr Rahmatullah. What was required of them was to show whether or not control existed in fact [60]. The decision to issue the writ did not entail any intrusion in the area of foreign policy [68]. On the cross appeal; the letter sent by the US authorities, while not explicitly referring to the 2003 MoU, did not suggest that it had not been considered. The US authorities had a copy of the Court of Appeals decision and were aware of the basis upon which it was made. It was clear from their response that the US authorities felt they were holding Mr Rahmatullah lawfully and were not willing to relinquish control of his detention to the UK [83 84]. Lord Phillips gives a short concurring judgment agreeing that there was sufficient evidence to suggest that the UK may be able to exert control over Mr Rahmatullah to issue the writ. He also considered that the issues of whether it mattered that Mr Rahmatullah had been handed over lawfully by the UK in the first place and whether Mr Rahmatullah could invoke in domestic proceedings the obligations of the UK under the Geneva Conventions had not been resolved in this case [100 107]. Lord Reed gives a concurring judgment. He agrees with Lord Kerr that the appeals should be dismissed but on the narrower ground that there was sufficient uncertainty as to whether the UK authorities had control of Mr Rahmatullahs detention to justify the issue of the writ [111 114]. Lady Hale and Lord Carnwath give a short joint judgment concurring with the majority in relation to the Secretary of States appeal but dissenting on the cross appeal. The basis for issuing the writ was the UKs apparent control provided by the 2003 MoU, supported by the UKs continuing responsibility as detaining authority under the Geneva Conventions (GC4). The UK Government did not make it clear to the US that it had an unqualified right under Clause 4 of the 2003 MoU to require Mr Rahmatullahs return. The US response similarly failed to deal with that central issue. In these circumstances, Lady Hale and Lord Carnwath found, the court should not rest on an inconclusive response, but should require resubmission of the request in firmer terms by the UK [125 131].
This is a pre trial appeal in a criminal case. The appellants are charged with the offence of entering into funding arrangements connected with terrorism, contrary to section 17 of the Terrorism Act 2000. The charges allege that the appellants sent money overseas, or arranged to do so, when they knew or had reasonable cause to suspect that it would, or might, be used for the purposes of terrorism. The question which arises on this appeal concerns the correct meaning of the expression has reasonable grounds to suspect in section 17(b) of the Act. The appellants argued that it means that the accused must actually suspect, and for reasonable cause, that the money may be used for the purposes of terrorism. The Crown, in response, argued that the sections wording means it is sufficient that on the information known to the accused there exists, assessed objectively, reasonable cause to suspect that the money will be put to that use. The Court of Appeal accepted the Crowns contention. The Supreme Court unanimously dismisses the appeal. Lord Hughes gives the sole judgment with which the other justices agree. The appellants relied on the well established principle that whenever a statutory section creates a criminal offence but does not refer to the offenders state of mind (mens rea), there is a presumption that to give effect to the will of Parliament, the court must read in words requiring mens rea [8]. While it is an important principle, it is a principle of statutory construction. It does not empower the court to substitute the plain words used by Parliament for a different provision on the grounds that the court would have done so differently by providing for an element, or a greater element, of mens rea [9]. The presumption must give way to either the plain meaning of the words of the statute, or to other relevant pointers to meaning which clearly demonstrate what was intended. The first port of call for any issue of construction is the words of the Act [12]. The words of section 17(b) of the Act suggest an objective test for mens rea at first sight. Thus, it is very difficult to see this statutory provision as one which is silent as to the intent required for the commission of the offence [13]. An offence of providing funding towards terrorism first appeared on the statute books in 1976 and was re enacted in identical form in 1984. Those sections required proof either of knowledge or of actual suspicion. However, the Prevention of Terrorism Act 1989 made a change and introduced the words knowing or having reasonable cause to suspect in place of knowing or suspecting. These changes were deliberate. They are inexplicable unless it was the Parliamentary intention to widen the scope of the offences to include those who had, objectively assessed, reasonable cause to suspect that the money might be put to terrorist use. The change can only have been intended to remove the requirement for proof of actual suspicion. The court cannot ignore this clear Parliamentary decision [18 19]. It would be an error to suppose that the form of offence creating words in section 17(b) create an offence of strict liability. Unlike an offence of strict liability, the accuseds state of mind is relevant for section 17(b). The requirement of an objectively assessed cause for suspicion focuses attention on what information the accused had. The requirement is satisfied when, on the information available to the accused, a reasonable person would suspect that the money might be used for terrorism [24].
The issue in this appeal is whether there may have been an unlawful distribution of capital to a shareholder when the Appellant (PPC) sold the whole issued share capital of a wholly owned subsidiary YMS Properties (No 1) Ltd (YMS1) to the Respondent (Moorgarth). PPC and Moorgarth were both subsidiaries of Tradegro (UK) Ltd (Tradegro). It was accepted that Mr Moore, a director of both PPC and Moorgarth, had genuinely believed that the sale of the shares was at market value. However PPC later claimed that the sale had been at an undervalue. The appeal raises a question as to the approach to be taken to establishing whether there has been an unlawful distribution of capital by a company. The factual background to the sale lies in the corporate structure being used to carry on the business of another company, called simply YMS Limited (YMS), which at the relevant time had also become a subsidiary of Tradegro. Mr Price was appointed as managing director of PPC and became holder of 24.9% of its shares. Tradegro retained 75.1% of PPCs shares. The freehold interests in the properties from which YMS traded were held by another company, YMS Properties (No 2) Ltd (YMS2). YMS2 was a wholly owned subsidiary of YMS1, which was itself a wholly owned subsidiary of PPC. YMS occupied the properties on an informal basis. YMS2s property portfolio was used as security to borrow money. The lender insisted that formal leases be entered into between YMS2 (as holder of the freeholds) and YMS (as occupiers of the properties). These were to include full repairing and insuring obligations on the tenants. The properties were in significant disrepair at the time. The cost of repairs was estimated at 4.6m and YMS was not able to bear that liability. It therefore sought an assurance that it would be given an indemnity against the costs which it might have to pay to satisfy the repairing liability to YMS2. Although it received that assurance, no indemnity or counter indemnity was ever entered into. Later, following a falling out of those involved in managing the business, it was agreed that Mr Price should acquire Tradegros 75.1% holding of PPC. A preliminary step was to be the sale by PPC of the whole share capital of YMS1 to Moorgarth, another subsidiary of Tradegro. In effect, the YMS properties were being extracted from PPC prior to its sale to Mr Price. On 20 October 2003, PPC agreed to sell the whole issued share capital of YMS1 to Moorgarth for 63,225.72. The sale price was calculated on the basis of the open market value of the YMS1 properties (said to be 11.83m), less liabilities for creditors approaching 8m and the sum of 4m in respect of repairing obligations. The deduction of 4m was made in the belief that PPC had given an indemnity or a counter indemnity in respect of YMSs repairing liabilities under the leases, under which that liability would ultimately fall on PPC. As part of the sale by PPC to Moorgarth, PPCs liability under that indemnity or counter indemnity was to be released. In fact, there was no indemnity or counter indemnity. PPC (now under the control of its new owner) claimed that the sale was at an undervalue, by as much as 4m, and was in breach of the common law rule against unlawful distributions of capital. It was not, however, disputed that Mr Moore, a director of both PCC and Moorgarth at the time the sale was negotiated, genuinely believed that the sale of the shares was at market value. The claim was dismissed in the High Court and by the Court of Appeal. The Supreme Court unanimously dismisses the appeal. Lord Walker gives the main judgment. Lord Mance agrees with it, but issues a separate judgment. Lords Phillips, Collins and Clarke agree with both. Lord Walker holds that that whether a transaction infringes the common law rule against unlawful distributions is a matter of substance and not form. The label attached by the parties is not decisive: [16]. The essential issue was how the sale is to be characterised: [24]. PPC argued that the court should adopt an objective approach, so that there is an unlawful distribution whenever a company enters into a transaction with a shareholder which results in a transfer of value not covered by distributable profits, regardless of the purpose of the transaction. Such a relentlessly objective rule would be oppressive and unworkable. It would tend to cast doubt on any transaction between a company and a shareholder, even if negotiated at arms length and in perfect good faith, whenever the company proved, with hindsight, to have got significantly the worse of the transaction: [24]. The courts task is to inquire into the true purpose and substance of the transaction. That calls for an investigation of all the relevant facts, which sometimes include the state of mind of the human beings involved: [27]. Sometimes their states of mind are totally irrelevant. They will be irrelevant, for example, where a distribution described as a dividend is actually paid out of capital. Where there is a challenge to the level of directors remuneration, the test is objective but probably subject to a margin of appreciation: [28]. The participants subjective intentions are, however, sometimes relevant. Something said to be an arms length commercial transaction is the paradigm example: [29]. If the transaction was a genuine arms length transaction then it will stand, even if it may, with hindsight, appear to have been a bad bargain for the company. If, however, it was an improper attempt to extract value from the company by the pretence of an arms length sale, it will be held unlawful. Deciding which category the transaction falls into will depend on a realistic assessment of all the relevant facts, not simply a retrospective valuation exercise in isolation from all other inquiries: [29]. Here there were findings by the Deputy Judge and the Court of Appeal that this was a genuine commercial sale. The appeal was therefore dismissed: [33]. Lord Mance agreed with Lord Walkers reasoning and conclusions. The courts will not second guess companies with regard to the appropriateness or wisdom of the terms of any transaction. There may, however, come a point at which, looking at all the relevant factors, an agreement cannot be regarded as involving in substance anything other than a return or distribution of capital, whatever label the parties attach to it: [42]. That was not the position here: [45]. It could not be said that YMS1 was sold at an undervalue. The reason why only 63,225.72 was paid to PPC was not related to the question of the net value of the YMS properties. It was because PPC itself was seen as having independent counter indemnity obligations to Tradegro which would reduce any sum payable by Moorgarth to PPC (such as the purchase price for YMS1 shares): [45]. Directors can make mistakes about the extent of liabilities attaching to their companies. Even if ill advised or unwise, it does not follow that settlement of such a liability must be re categorised as a distribution of capital, even if it is in relation to a shareholder: [46].
On 9 June 2005, Tullis Russell entered into an asset purchase agreement (the Asset Purchase Agreement) and related services agreement (the Service Agreement) with Inveresk for the acquisition of the property rights to the Gemini brand of paper. To acquire these rights, Tullis Russell was to pay: (i) a fixed sum of 5 million as initial consideration; (ii) a sum of up to 2 million as additional consideration, depending upon the volume of products sold and invoiced by Tullis Russell between 8 November 2005 and 8 November 2006; and (iii) various payments under the Service Agreement. To date, Tullis Russell has paid Inveresk 5 million as initial consideration under the Asset Purchase Agreement and 8 million under the Service Agreement. The parties are now in dispute regarding various payments and sums in damages that are said to be due. Inveresk claims that it is entitled to a further sum of 909,395 under the Asset Purchase Agreement. Tullis Russell claims that Inveresk breached the Asset Purchase Agreement and Service Agreement by failing to maintain required product quality standards and dealing with customers so as to damage the goodwill of the business. It seeks 5,358,032.90 in damages. Two issues arise in the appeal: Firstly, whether the additional consideration claimed by Inveresk has become due and payable under the Asset Purchase Agreement. Secondly, whether Tullis Russell is entitled to retain the sum it claims in damages, pending resolution of the claim, against any payment it is required to make to Inveresk. The Court of Session held that the additional consideration sought by Inveresk was due and payable and that Tullis Russell had no right of retention. The Supreme Court unanimously allows the appeal, holding that the additional consideration has not become due and payable pursuant to the Asset Purchase Agreement and that a right of retention may in principle arise. The matter is remitted to the commercial judge for further procedure. Lord Hope delivered the leading judgment of the Court. The Additional Consideration The operative provisions of the Asset Purchase Agreement clearly direct that, having elected to exercise its right to require a tonnage audit, Inveresk is not entitled to change its position on this issue. The terms of the agreement are perfectly intelligible, and the approach adopted accords with business sense. The additional consideration does not become due and payable until the contractually required tonnage audit is completed [per Lord Hope, paras [21] [24]]. The matter is remitted to the commercial judge to determine how the conduct of the tonnage audit should proceed [per Lord Hope, para [25]; Lord Rodger, para [1]]. The Right of Retention A contractual right of retention can arise notwithstanding the fact that the relevant obligations are not recorded in a single agreement. The critical question in determining whether a right of retention may apply is whether the relevant obligations can truly be said to be counterparts of one another [per Lord Hope, paras [35] [36]]. In the present case, the entire agreement clauses in both the Asset Purchase Agreement and the Service Agreement record the parties agreement that both documents form a single, indivisible transaction. This is also emphasised by the recitals to the Service Agreement. The agreements are expressly linked with each other. The conclusion that they form part of a single transaction to which the principle of mutuality can apply is inescapable [per Lord Hope, paras [37] [38]; Lord Rodger, para [64]]. The Court of Session erred in concluding that the Asset Purchase Agreement and Service Agreement were not properly to be regarded as constituting two parts of a single transaction. The guiding principle in such an assessment is that the unity of the overall transaction should be respected. The analysis should commence form the starting point that all the obligations which the transaction embraces are to be regarded as mutual counterparts unless there is a clear indication to the contrary [per Lord Hope, para [42]]. While the current transaction did proceed in stages, it is unrealistic to suggest that these could be divided into a series of sub units or compartments. The obligations undertaken by Inveresk were all inter related and served the same end. This was to preserve the value of the intellectual property rights and other assets acquired by Tullis Russell as a result of the transaction. Accordingly, Tullis Russells obligation to pay the initial and additional consideration are properly regarded as counterparts to Inveresks obligations under both the Asset Purchase Agreement and the Service Agreement [per Lord Hope, para [45]]. In the result, Tullis Russell are entitled to retain any additional consideration that becomes due pending the outcome of its claims for damages under the Asset Purchase Agreement and Service Agreement. The matter is remitted to the commercial judge for further procedure [per Lord Hope, paras [46] [47]; Lord Rodger, para [65]].
The Appellant is an Ethiopian national who was the subject of a control order. This confined him to a flat for 16 hours a day in a Midlands town away from his family in London. AP came to this country with other members of his family in 1992 at the age of 14. On 6 October 1999, he, his siblings and their mother were granted indefinite leave to remain. In May 2005 he travelled to Somalia and then Ethiopia. On 22 December 2006, upon his detention by the authorities in Ethiopia, the Secretary of State decided to exclude him from the UK. He was then suspected of involvement in terrorism. On APs return to the UK on 28 December 2006 he was duly refused leave to enter and, pending removal, detained under immigration powers until July 2007. He was then released on bail under stringent conditions. The Secretary of State, however, withdrew her decision to exclude AP from the UK when, on 10 January 2008, she was granted permission to make a control order against him. The control order subjected AP to a 16 hour curfew and electronic tagging, together with a number of other restrictions on association and communication such as are usually imposed in these cases. This control order at first required AP to live at an address in North London. APs family, friends and associates had always lived in the London area. On 21 April 2008 the Secretary of State modified the terms of the control order, requiring AP to move to an address in a Midlands town some 150 miles away. It was this modification that led to APs appeal. On 12 August 2008 the High Court allowed APs appeal against the modification, quashing the obligation to live in the Midlands. It rejected APs case under article 8 of the European Convention on Human Rights (ECHR) on the ground that the interference with his family life was justified and proportionate in the interests of national security but decided that the overall effect of a 16 hour curfew and APs social isolation (particularly through his being separated from his family) constituted an article 5 deprivation of liberty. When the matter was before the Court of Appeal there was again no dispute about the need for a control order, only about its terms. The Court of Appeal by a majority reversed the decision of the High Court. AP appealed. The outcome of this appeal is no longer currently relevant to AP himself. APs control order was revoked on 2 July 2009. The Secretary of State has again decided that AP should be deported on national security grounds and since 20 July 2009 he has been on bail pending deportation on conditions, including residence in the Midlands, similar to those of the control order save that the curfew period is now 18 hours. However the points of law raised by APs appeal were said to be of some general importance with regard to control orders. The three issues the Supreme Court had to reach a decision on in this appeal were as follows: Whether conditions which are proportionate restrictions upon article 8 rights to respect for private and family life can tip the balance in relation to article 5 (which guarantees the right to liberty and security), ie whether they can be taken into account in holding that a control order is a deprivation of liberty when, absent those restrictions, it would not have been held to be such. Whether the judge can take into account subjective and/or person specific factors, such as the particular difficulties of the subjects family in visiting him in a particular location, when considering whether or not a control order amounts to a deprivation of liberty. Whether it was permissible for the Court of Appeal to interfere with the first instance judgment on the ground that the judge had relied on findings of fact in respect of article 5 which were inconsistent with his findings of fact in respect of article 8. The Supreme Court unanimously allowed the appeal, set aside the decision of the Court of Appeal and restored the High Courts order. Lord Brown gave the leading judgment. Lord Rodger and Sir John Dyson SCJ delivered concurring judgments. By way of introduction, Lord Brown noted that the majority in the House of Lords in Secretary of State for the Home Department v JJ [2008] 1 AC 385 held that deprivation of liberty might take a variety of forms other than classic detention in prison or strict arrest. The courts task was to consider the concrete situation of the particular individual and, taking account of a whole range of criteria including the type, duration, effects and manner of implementation of the measures in question, to assess their impact on him in the context of the life he might otherwise have been living. (para [1]) In relation to the first issue, Lord Brown considered that the answer was surely an obvious yes. If an article 8 restriction is a relevant consideration in determining whether a control order breaches article 5, then by definition it is capable of being a decisive factor capable of tipping the balance. The weight to be given to a relevant consideration is, of course, always a question of fact and entirely a matter for the decision maker subject only to a challenge for irrationality which neither has nor could have been advanced in this case. (para [12]) Lord Brown was of the view that the Secretary of State was wrong to contend that, in assessing the weight to be given to the restrictive effects of a condition such as that imposed on AP here to reside in the Midlands, the judge should ignore everything that depends on the individual circumstances of the family for example, on the facts of this case, that APs mother has never left London alone and that during term time, because of the children, Sunday is the only day the family can travel. By the same token that it is relevant that, whilst AP must live in the Midlands, his family are in London, so too it is relevant whether their circumstances are such that their distance away so disrupts contact between them as to cause or substantially contribute to APs social isolation. Plainly the family could not be allowed to thwart what would otherwise be an appropriate residential requirement by unreasonably failing to take opportunities open to them to visit AP and save him from social isolation. The correct analysis, however, is that in those circumstances it would be the familys unreasonable conduct and not the residence condition which was the operative cause of the APs isolation. It is not suggested by the Secretary of State that APs family behaved unreasonably in failing to overcome more effectively the practical difficulties they faced in visiting AP on a more regular basis, only that their particular difficulties should have been ignored. That submission cannot be accepted. (para [15]) In relation to the third issue, having considered the relevant parts of the High Courts judgment, Lord Brown held that there was no contradiction between them. (paras [1618])
The issue is whether the ban on the entry for settlement of foreign spouses or civil partners unless both parties are aged 21 or over, contained in paragraph 277 of the Immigration Rules, was a lawful way of deterring or preventing forced marriages. Paragraph 277 of the Immigration Rules [Paragraph 277] was amended with effect from 27 November 2008 to raise the minimum age for a person either to be granted a visa for the purposes of settling in the United Kingdom as a spouse or to sponsor another for the purposes of obtaining such a visa from 18 to 21. The purpose of the amendment was not to control immigration but to deter forced marriages. A forced marriage is a marriage into which at least one party enters without her or his free and full consent through force or duress, including coercion by threats or other psychological means. Mr Quila, a Chilean national, entered into a fully consensual marriage with Ms Jeffery, a British citizen. Mr Aguilar Quila applied for a marriage visa before the amendment took effect, but his application was refused as his wife was only 17 and a sponsoring spouse had to be 18. By the time that Ms Jeffrey had turned 18 the amendment was in force and the Home Office refused to waive it. Consequently, Mr Quila and his wife were forced to leave the UK initially to live in Chile (his wife having had to relinquish a place to study languages at Royal Holloway, University of London) and subsequently to live in Ireland. Bibi (as she invited the Court to describe her) is a Pakistani national who applied to join her husband, Mohammed, a British citizen, in the UK. Bibi and Mohammed had an arranged marriage in Pakistan in October 2008, to which each of them freely consented. Their application was refused as both parties were under 21. The Respondents claims for judicial review of the decisions were both rejected in the High Court. The Respondents successfully appealed to the Court of Appeal, which declared that the application of Paragraph 277 so as to refuse them marriage visas was in breach of their rights under Article 8 of the European Convention on Human Rights and Fundamental Freedoms 1950 [the ECHR]. The Secretary of State has appealed to the Supreme Court. The Supreme Court, by a 4 1 majority, dismisses the Secretary of States appeal on the grounds that the refusal to grant marriage visas to the Respondents was an infringement of their rights under Article 8 ECHR. Lord Wilson gives the leading judgment; Lady Hale gives a concurring judgment. Lord Phillips and Lord Clarke agree with Lord Wilson and Lady Hale. Lord Brown gives a dissenting judgment. Article 8 ECHR was engaged [43; 72]. Applying R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, the relevant question was whether there had been an interference by a public authority with the exercise of a persons right to respect for his private or family life and if so, whether it had had consequences of sufficient gravity to engage the operation of the article [30]. Unconstrained by authority, Lord Wilson would have considered it a colossal interference to require for up to three years either that the spouses should live separately or that a British citizen should leave the UK for up to three years [32]. The ECtHR in Abdulaziz v United Kingdom (1985) 7 EHRR 471 has, however, held that there was no lack of respect for family life in denying entry to foreign spouses. There was no positive obligation on the State to respect a couples choice of country of matrimonial residence [35 36]. Lord Wilson holds that Abdulaziz should not be followed in this respect; there was dissent at the time and no clear and consistent subsequent jurisprudence from the ECtHR as four more recent decisions [38 41] were inconsistent with the decision [43]. The ECtHR has since recognized that the distinction between positive and negative obligations should not generate different outcomes [43]. The Secretary of State has failed to establish that the interference with the Respondents rights to a family life was justified under Article 8(2) ECHR. Paragraph 277 has a legitimate aim, namely the protection of the rights and freedoms of those who might be forced into marriage [45] and is rationally connected to that objective, but its efficacy is highly debatable [58]. A number of questions remain unanswered including how prevalent the motive of applying for UK citizenship is in the genesis of forced marriages; whether the forced marriage would have occurred in any event and thus the rule increase the control of victims abroad and whether the amendment might precipitate a swift pregnancy in order to found an application for a discretionary grant of a visa [49]. The Secretary of State has failed to adduce any robust evidence that the amendment would have any substantial deterrent effect [50; 75]. By contrast, the number of forced marriages amongst those refused a marriage visa had not been quantified [53]. The only conclusion that could be drawn was that the amendment would keep a very substantial number of bona fide young couples apart or forced to live outside the UK [54], vastly exceeding the number of forced marriages that would be deterred [58; 74]. The measure was similar to the blanket prohibition on persons subject to immigration control marrying without the Secretary of States written permission found to be unlawful in R (Baiai) v Secretary of State for the Home Department [2008] UKHL 53 [57, 78 79]. The Secretary of State has failed to exercise her judgement on this imbalance and thus failed to establish both that the measure is no more than is necessary to accomplish the objective of deterring forced marriage and that it strikes a fair balance between the rights of parties to unforced marriages and the interests of the community in preventing forced marriage. On any view, the measure was a sledgehammer but the Secretary of State has not attempted to identify the size of the nut [58]. Lady Hale holds that the debate on Abdulaziz is something of a red herring as the Secretary of State could not simultaneously state that the measure was not for the purpose of controlling immigration and rely upon jurisprudence wholly premised on the States right to control immigration [72]. She further holds that the restriction was automatic and indiscriminate [74]; failed to detect forced marriages and imposed a delay on cohabitation in the country of choice, which was a deterrent that could impair the essence of the right to marry under Article 12 ECHR [78 79]. Whilst the judgment is essentially individual, it is hard to conceive that the Secretary of State could avoid infringement of Article 8 ECHR when applying Paragraph 277 to an unforced marriage [59; 80]. Lord Brown, dissenting, holds the extent of forced marriage is impossible to quantify so the deterrent effect of Paragraph 277 could never be satisfactorily determined [87]. The judgement of how to balance the enormity of suffering within forced marriages with the disruption to innocent couples was one for elected politicians, not for judges [91]. The measure was not an automatic indiscriminate restriction [92]; would be disapplied in exceptional circumstances [93] and similar rules applied in other European countries [85]. To disapply the rule would exceed ECtHR jurisprudence and in such a sensitive context, government policy should not be frustrated except in the clearest cases [97].
Wang Yam was charged with the murder of Allen Chappellow and associated offences in 2007. He denied the murder charge and alleged that he had been given the deceaseds cheques, credit cards and banking information by various gangsters. The Crown applied for an order that part of the trial relating to evidence which Wang Yam wished to submit in his defence take place in camera (i.e. in a closed court) in the interests of national security and to protect the identity of a witness or other person. This order was granted in January 2008 by Ouseley J. At trial, because of the Wang Yams difficulty in keeping distinct the sensitive and non sensitive aspects of his evidence, the entire defence case was heard in camera in the presence of Wang Yam and his representatives. In January 2009 Wang Yam was convicted of murder and burglary and sentenced to life imprisonment. In April 2011 Wang Yam lodged an application with the European Court of Human Rights (ECtHR) against the UK, complaining that his trial and conviction were unfair and therefore violated article 6.1 of the European Convention on Human Rights (ECHR). The UK submitted that the application should be declared manifestly ill founded and inadmissible, or alternatively dismissed on the merits. Wang Yam argued that he should be permitted to refer to the in camera material in his response to the UKs observations before the ECtHR. In February 2014 Ouseley J ruled that Wang Yam should not be able to disclose the in camera material to the ECtHR. Wang Yam applied for and was granted judicial review of that decision, but the application was dismissed on its merits. The Divisional Court allowed a leapfrog appeal direct to the Supreme Court on the following questions: Is there a power to prevent an individual from placing material before the European Court of Human Rights? If so, can the power be exercised where the domestic court is satisfied that it is not in the interests of state for the material to be made public even to the Strasbourg court? The Supreme Court unanimously dismisses Wang Yams appeal. Lord Mance gives the judgment of the Court. In a purely domestic context the English courts have a discretion to refuse to permit disclosure of material deployed in camera. The issue before the Supreme Court is whether this power ceases to be exercisable once an applicant to the ECtHR decides that he wishes to disclose the material to that court in the context of a complaint that the in camera proceedings made his trial unfair [1 2]. Wang Yams case depends on the proposition that the courts below have discretion to prevent the disclosure of in camera material to the ECtHR [20]. This proposition depends in turn on the submission that such discretion would involve the UK in a breach of the international obligations under article 34 ECHR, which provides that: The Court may receive applications from any person claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right. Refusal to permit disclosure to the ECtHR does not constitute a breach of international law [22, 24 34]. The English courts have repeatedly found that it was both necessary and fair to hold part of the trial in camera. The in camera material formed part of Wang Yams own defence and has been seen by both him and his legal representatives. The suggestion that its publication would have advanced this defence has been rejected as implausible. If any court is to reach the conclusion that the UK is in breach of article 34 it must be the ECtHR and not the English courts [25]. On Wang Yams case he would be the sole judge of what is necessary at this stage for the effective presentation of his case to the ECtHR. Wang Yam relied on article 34, rather than article 38 ECHR, which provides that: The Court shall examine the case together with the representatives of the parties and, if need be, undertake an investigation, for the effective conduct of which the High Contracting Parties concerned shall furnish all necessary facilities. The ECtHR is able to decide under article 38 whether any further material should be requested from the UK to enable it to consider Wang Yams case [27]. The case law of the ECtHR indicates that it will not act as a fourth instance appeal court re determining issues of national security, but rather it will review the domestic adjudication on the issues involved and, if satisfied of its fairness and thoroughness, may accept the outcome without insisting on automatic disclosure to itself of secret material [28 33]. This reason alone is sufficient to dismiss the appeal [34]. Even if refusal to permit disclosure to the ECtHR breached an international obligation, English courts would not be obliged automatically to give effect to such obligation. The UK takes a dualist approach to international law. The starting point when considering a general discretionary common law power is that domestic and international law considerations are separate. The decision maker may take international law obligations into account but is not bound to do so [35]. In R (Hurst) v London Northern District Coroner [2007] 2 AC 189 even the minority who suggested that a domestic decision maker should at least give consideration to international rights which can properly be regarded as fundamental went no further. In any event, given that an appeal lies to the ECtHR under article 38 ECHR, any obligation on the UK at this stage under article 34 could not be regarded as fundamental [36]. In this context, Ouseley J took an orthodox approach to his general discretion and therefore the appeal must also fail on the second ground [37 38].
The Appellant, Mr Campbell, was employed as an apprentice joiner by a company whose sole director was Mr Gordon, the Respondent. The Respondent was responsible for the day to day operation of the company. The Appellant suffered an injury whilst working with an electric saw on 28 June 2006. The companys employers liability policy excluded claims arriving from the use of woodworking machinery powered by electricity, and thus excluded any claim arising out of the Appellants accident. The companys failure to have in place appropriate assurance was a breach of its obligations under section 1(1) of the Employers Liability (Compulsory Insurance) Act 1969 (the 1969 Act). The company went into liquidation in 2009. The issue for the court is whether the Respondents failure, as director of the company, to provide adequate insurance, makes him liable personally in damages to the Appellant. The Appellants claim was upheld by the Lord Ordinary but dismissed by a majority of the Inner House. The Supreme Court dismisses Mr Campbells appeal by a majority of three to two. Lord Carnwath gives the majority judgment, with which Lord Mance and Lord Reed agree. Lord Toulson gives a dissenting judgment, with which Lady Hale agrees in a separate dissent. Lord Carnwath holds that there is no authority for the proposition that a person can be made indirectly liable for breach of an obligation imposed by statute on someone else, and that it is only possible to pierce the corporate veil to impose liability on a director or other individual through whom the company acts, if it is expressly or impliedly justified by the statute [13]. In section 5 of the 1969 Act, Parliament has imposed a specific and closely defined criminal penalty on a director bearing responsibility for a failure to insure, which is linked to the criminal liability of the company [14]. Lord Carnwath finds that in determining statutory liability, the court must pay due respect to the language and structure of the statute, rather than to preconceptions as to what its objectives could or should have been [18]. He rejects the argument that the imposition of criminal liability is sufficient to render the director civilly liable, finding that other statutory provisions imposing criminal liability on directors for offences by their companies have not been treated as giving rise to civil liability [21 2]. He finds that the language in section 5 of the 1969 Act was deliberately chosen and is specifically directed at criminal liability, and accordingly it is difficult to infer an intention to impose a more general liability [23]. Lord Toulson would have allowed the appeal, finding that the effect in substance of section 5 of the 1969 Act is to place a legal obligation on a director or other officer of a company not to cause or permit the company to be without the required insurance, on pain of a criminal penalty. He considers that the imposition of criminal responsibility for a specified act (or omission) carries with it a legal obligation not to act (or omit to act) in such a way [26]. Lord Toulson prefers a functional approach to interpreting the legislation which looks to the objective of the statute, which is employee protection [30]. However, even on a formalist approach, the director is in law guilty as a principal of failing to insure [31]. Since the Victorian age, the courts have held that breaches of legislation for the protection of employees are actionable at common law by the employee suffering the breach [32]. If the legislation is silent on whether there should be civil liability, the judges role is to fill the gaps [34]. Where legislation is passed to protect employees, a breach will ordinarily give rise to a cause of action, absent a clear statutory intention to the contrary [41]. Lady Hale agrees with Lord Toulson and would have allowed the appeal. Lady Hale considers it absolutely clear that in enacting the 1969 Act, Parliament did intend that failure to insure should give rise not only to criminal liability but also to civil liability towards an employee who had been injured by his employers breach of duty and who, because of the failure to insure, would not otherwise receive the compensation for his injuries to which he was entitled [43]. She stresses that, contrary to the view expressed by the Inner House, the law has not been changed by recent House of Lords and Supreme Court decisions.
Section 444(1) of the Education Act 1996 provides that if a child of compulsory school age fails to attend regularly at the school where he is a registered pupil, his parent is guilty of an offence. The issue in this appeal is the meaning of regularly. Regularly has at least three possible meanings in this provision: it could mean (a) evenly spaced; (b) sufficiently often; or (c) in accordance with the rules. Mr Platt sought permission from his daughters head teacher to remove her from school during term time for a holiday. The head teacher refused the request but Mr Platt took his daughter on holiday as planned, causing her to miss seven school days in April 2015. Mr Platt was issued with a penalty notice on her return. He did not pay the fixed penalty and was prosecuted in the Isle of Wight Magistrates Court. The magistrates ruled that Mr Platt had no case to answer. They held that his daughter had attended school regularly because, even after the holiday, she had attended 90.3% of the time up to that point in the academic year. The Council appealed on the issue of whether the magistrates had been entitled to take into account attendance at school outside the period of the absence. The Divisional Court held that the magistrates had not erred in doing so, but certified a point of law of general public importance on the meaning of the words fails to attend regularly in section 444(1). The Supreme Court unanimously allows the Councils appeal, declaring that the word regularly means in accordance with the rules prescribed by the school. Lady Hale, with whom the other Justices agree, gives the only judgment. The history of the law preceding section 444(1) of the Education Act 1996 shows that before 1944 it was well established that the offence of failing to cause a child to attend school without a reasonable excuse could be committed by a single days absence [8 14]. The Education Act 1944 replaced the concept of reasonable excuse with a closed list of circumstances in which absence was permitted, and provided that the offence would be committed if the child failed to attend school regularly. This provision was reproduced in the Education Act 1993 and is now found in s 444(1) of the 1996 Act [15 19]. The penalty notice regime is an alternative to immediate prosecution and offers a parent the opportunity of escaping liability to conviction by paying the penalty [21]. The question for the Supreme Court is which meaning of the word regularly was intended by Parliament when enacting s 444(1). It plainly is not at regular intervals as this would mean attendance at school once a week is regular even though attendance every day is required by the rules. Sufficiently frequently was the meaning assumed in some earlier cases, and in the lower courts in this case, but there are many reasons to think that this was not what Parliament intended in 1944 or in 1996: School attendance is compulsory and there are rules about when it is required [32]. The purpose of the 1944 act was to increase the scope and character of compulsory state education and it is implausible to suggest that it was intended to relax the previous obligation on parents to secure their childrens attendance [33]. The defences were tightened in 1944 and the flexibility inherent in a reasonable excuse was removed [34]. The exception for absence on a single day for religious observance in s 444(3) would not be needed unless it would otherwise amount to a failure to attend regularly [35]. Provisions for parents with an itinerant trade or business did not suggest that regularly was a matter of fact and degree [36]. A boarder fails to attend regularly under s 444(7) if he is absent without leave during any part of the school term, and there is no reason why 100% attendance should be required of boarders but not of day pupils [37]. This interpretation is far too uncertain to found a criminal offence. A parent would not know on any given day whether removing the child from school is a criminal offence [39]. There are sound policy reasons for rejecting this interpretation because of the disruptive impact of the absence for the education of the individual child and of the other pupils [40]. It permits an approach to rule keeping which no educational system can be expected to find acceptable [41]. These reasons also point towards the correct interpretation of regularly being in accordance with the rules. A sensible prosecution policy will allow minor or trivial breaches to be dealt with appropriately [43]. This was not thought to be a problem under the pre 1944 law [44]. The rule that statutes imposing criminal liability must enable everyone to know what is and is not an offence is important [45]. This interpretation is consistent with the provisions excepting from the scope of the offence a child absent with the leave of the school [46], and with the obligation on parents to cause their child to receive full time education under section 7 of the 1996 act [47]. Accordingly, the penalty notice was properly issued to Mr Platt and, having not paid the penalty fine, he should have been convicted of the offence unless he can establish one of the statutory exceptions. The case is therefore returned to the magistrates with a direction to proceed as if his submission of no case to answer had been rejected [49].
These appeals concern refusals of leave to remain. Mr Patel and his wife, Mrs Patel (the Patels), arrived from India in the UK on 24 March 2009. Mr Patel had been granted leave to enter as a working holiday maker until 6 March 2011, and Mrs Patel had been granted leave as his dependent wife. Their only child was born here in 2010. On 26 February 2011, the Patels applied for further leave to remain, relying on article 8 (right to respect for family and private life) of the European Convention on Human Rights (the Convention), and rule 395C of the Immigration Rules (the rules). Their application was refused by the Secretary of State on 30 March 2011. That refusal was neither combined with, nor followed by, a decision to remove the family from the UK. The Patels argued that the Secretary of States failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. This argument was unsuccessful in both the Upper Tribunal and the Court of Appeal. Mr Alam, a Bangladeshi citizen, entered the UK on 26 August 2007 as a Tier 4 student with leave to remain until 12 April 2011. On 1 April 2011 he applied for leave to remain to continue his studies, and on 20 April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation. The bank statements submitted with his application were more than a month old and therefore did not show the necessary level of funds for a consecutive period ending no more than one month before the application. Mr Alam produced the appropriate bank statements by the First tier tribunal hearing, at which it was held that, whilst this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act, which had come into effect between the date of his appeal and the date of his hearing), this material could be taken into account in the appeal under article 8 of the Convention. The tribunal concluded that, since Mr Alam met the requirements of the rules, it would be disproportionate to refuse his application. The Upper Tribunal reversed this decision, holding that Mr Alams article 8 rights were not sufficiently strong to make his removal disproportionate. Mr Anwar, a Pakistani citizen, entered the UK on 26 February 2010 with leave to remain as a student until 1 April 2011. He applied to extend his leave as a Tier 4 student to enable him to complete his course. This application was supported by a Confirmation of Acceptance for Studies (CAS). On 10 May 2011 the Secretary of State refused the application because it had not included a document referred to in the CAS. On his appeal to the First tier Tribunal Mr Anwar produced the relevant document. The First tier Tribunal allowed his appeal, but this decision was set aside by the Upper Tribunal. Although there was a reference to the Convention in the grounds of appeal to the First tier Tribunal, no separate appeal on human rights grounds was pursued at the hearing before either tribunal. The Court of Appeal heard the appeals of Mr Alam and Mr Anwar together and dismissed them both. The Supreme Court unanimously dismisses all three appeals. Lord Carnwath, with whom the rest of the Court agrees, gives the majority judgment. In the Patel appeal the Court holds that the Secretary of State was under no duty to issue removal directions at the time of the decision to refuse leave to remain, and that the actual decision was not invalidated by her failure to do so. In the Alam and Anwar appeals, although the First tier tribunal was obliged under section 120 of the 2002 Act to consider the new evidence filed, this evidence did not significantly improve their respective cases under article 8 of the Convention. The sole issue in the Patel appeal relates to the segregation of the decision to refuse leave to remain from the decision to direct removal. The Patels argued, relying on the Court of Appeal decisions in Mirza [2011] Imm AR 484 and Sapkota [2012] Imm AR 254, that the failure to issue such a direction was not only unlawful in itself, but also undermined the validity of the previous decision to refuse leave to remain [25 26]. The Court agrees with the Court of Appeals reasons for not following the decisions in Mirza and Sapkota. Neither section 10 of the 1999 Immigration and Asylum Act nor section 47 of the Immigration, Asylum and Nationality Act 2006, which define the Secretary of States powers of removal, can be read as imposing an obligation to make a direction in any particular case, still less as providing any link between failure to do so and the validity of a previous immigration decision [27]. The Secretary of State was under no duty in the Patels case to issue removal directions at the time of the decision to refuse leave to remain, and the actual decision was not invalidated by failure to do so. Insofar as the decisions of the Court of Appeal in Mirza and Sapkota indicate the contrary, they were wrongly decided [30]. The Alam and Anwar appeals raise the issue of whether the statements and evidence filed by Mr Alam and Mr Anwar to the First tier Tribunal amounted to additional grounds under section 120 of the 2002 Act, which the First tier Tribunal was obliged to consider and determine notwithstanding the bar in section 85A of that Act [10]. Whether the evidence before the tribunal in support of a putative appeal against the refusal of leave to remain can be taken on human rights grounds depends on two propositions: that the tribunal was obliged to consider the new evidence in that context, and secondly, that, if it had done so, the evidence that the rules could have been complied with would significantly improve the human rights case under article 8 [33]. In Mr Anwars case no separate human rights grounds were advanced on his behalf before either tribunal and so the issue as to whether the tribunal would have been obliged to consider them, and if so to what effect, does not arise [58]. On the first proposition, the Court holds (agreeing with the majority in AS(Afghanistan) v Secretary of State [2011] 1 WLR 385) that section 85(2) of the 2002 Act imposes a duty on the tribunal to consider any potential ground of appeal raised in response to a section 120 notice, even if it does not directly relate to the issues considered by the Secretary of State in the original decision [34 44]. On the second proposition, in Mr Alams case the human rights case was considered but failed before the Upper Tribunal. Some weight was given to the circumstances in which he lost his ability to rely on the new evidence, but against this there was only the time he had spent in this country as a student under the rules. It would be surprising if that status, derived entirely from the rules, was sufficient in itself to add weight to a case for favourable treatment outside the rules. The Court holds that there was no error in the Upper Tribunals approach [59].
This appeal concerns the interpretation of section 1(1) of the Defamation Act 2013 (the 2013 Act), which is one of the principal new provisions. Section 1(1) provides: (1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant. The claimant, Bruno Lachaux, is a French aerospace engineer who at the relevant time lived with his British wife, Afsana, in the United Arab Emirates (UAE). The marriage broke down. In April 2011, he began divorce proceedings in the UAE courts and sought custody of their son, Louis. In March 2012, Afsana went into hiding with Louis in the UAE, claiming that she would not get a fair trial there. In August 2012, the UAE court awarded custody of Louis to his father. In October 2012, Mr Lachaux, having found out where Louis was, used the powers under the custody order to take Louis under his care, and subsequently initiated a criminal prosecution against Afsana for abduction. In January and February 2014, several British newspapers published articles making allegations about Mr Lachauxs conduct towards Afsana during the marriage and in the course of the divorce and custody proceedings. These appeals arise out of two libel actions begun by him in the High Court on 2 December 2014 against the publishers of the Independent and Evening Standard, and a third begun on 23 January 2015 against the publisher i. In February 2015, at a so called meaning hearing in the High Court, Mr Justice Eady held that the Independent and Evening Standard articles had eight and 12 defamatory meanings respectively. In summary, they were held to have meant (amongst other things) that Mr Lachaux had been violent and abusive towards his wife during their marriage, had hidden Louis passport to stop her removing him from the UAE, had made use of UAE law and the UAE courts to deprive her of custody and contact with her son, had callously and without justification taken Louis out of her possession, and then falsely accused her of abducting him. The newspapers did not contest the primary facts relied on by Mr Lachaux in his Particulars of Claim. Instead, their case was that the statements in the articles were not defamatory because they did not meet the serious harm test under section 1(1) of the 2013 Act. In the High Court, Mr Justice Warby (Warby J) held that Mr Lachaux had demonstrated, by evidence, that the harm caused by the publications complained of was serious, within the meaning of section 1(1). The Court of Appeal dismissed the newspapers appeal, but focused instead on the inherent tendency of the words to damage Mr Lachauxs reputation. The newspapers appeal to the Supreme Court against the finding of serious harm. The Supreme Court unanimously dismisses the appeal, but for reasons different from those of the Court of Appeal. Lord Sumption gives the lead judgment, with which all members of the Court agree. The law distinguishes between defamation actionable per se, which includes all libels and now two (previously four) special types of slander, and defamation actionable only on proof of special damage, which covers all other slanders [4 5]. Pecuniary loss must be established for the latter category [5]. Before the 2013 Act, two decisions (Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 (CA) and Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985 (QB)) introduced the requirement that damage to reputation in defamation actionable per se must pass a minimum threshold of seriousness [7 9]. This Court considers that section 1 of the 2013 Act not only raises the threshold of seriousness from that in Jameel and Thornton, but requires its application to be determined by reference to the actual facts about its impact, not merely the meaning of the words [12]. The reasons are as follows: First, the 2013 Act undoubtedly amends the common law to some degree, so the least that section 1 achieved was to introduce a new threshold of serious harm which did not previously exist. If serious harm within the meaning of section 1(1) can be demonstrated only by reference to the inherent tendency of the words, no substantial change in the law would have been achieved. However, it is clear that section 1 was intended to make the significant amendment that the extent of damage is now part of the test for a defamatory statement. [13, 16] Secondly, section 1 necessarily means that a statement which would previously have been regarded as defamatory, given its inherent tendency, is no longer actionable unless it has caused or is likely to cause harm which is serious. The words has caused refer to the consequences of the publication, specifically historic harm. This is a factual matter which must be established by reference to the impact of the statement. It depends on a combination of the inherent tendency of the words and their actual impact on the recipients. The words likely to be caused naturally refer to probable future harm. If past harm may be established as a fact, Parliament must have assumed that future harm could too. [14] Thirdly, section 1(1) must be read with section 1(2). Section 1(2) deals with how section 1(1) is to be applied to defamatory statements in relation to a body trading for profit. It adopts the serious harm requirement, but provides that for such a body the statement must have caused or be likely to cause serious financial loss. Thus, for trading bodies, the financial loss in section 1(2) is the measure of the harm referred to in section 1(1), not special damage as understood in the law of defamation. It must exceed the pre 2013 Act threshold of seriousness. This requires an actual impact analysis. [15] Lord Sumption does not accept that this interpretation of section 1 leads to any major inconsistency with section 8 (on limitation) or section 14 (on slanders actionable per se). [17 19] On the facts, the Supreme Court largely adopts Warby Js legal approach. It finds no error in his serious harm finding [20]. The finding was properly based on a combination of the meaning of the words, Mr Lachauxs situation, the circumstances of publication and the inherent probabilities [21].
This appeal is about the meaning of turpitude in the ex turpi causa defence. This defence allows a defendant to resist a claim which is founded on the claimants own illegal or immoral acts. The appellants (collectively Servier) hold a number of patents for perindopril erbumine (a drug used for treating hypertension and cardiac insufficiency). European patent protection for the compound itself expired in June 2003, but a UK patent protecting a crystalline form continued and Serviers UK subsidiary was the exclusive licensee. Canadian patent protection for the compound itself will not expire until 2018. The respondents (collectively Apotex) are a Canadian group specialising in the manufacture and marketing of generic pharmaceutical products. The parties agreed that, for the purposes of this appeal, each group of companies could be treated as one legal entity each. Apotex began to import and sell generic perindopril erbumine tablets in the UK at the end of July 2006. Servier obtained an interim injunction against Apotex to stop it from doing this. In order to get the injunction, Servier had to give a cross undertaking in damages, meaning that it promised to compensate Apotex for any loss caused by the injunction if it later turned out that the injunction should not have been granted. In the event, the court found that the UK patent was invalid, and so Apotex became entitled to compensation from Servier. It is agreed that such compensation should be calculated on the basis that Apotex would have sold an additional 3.6m packs of tablets in the UK if there had been no injunction. These packs would have been manufactured in Canada but sold in the UK. Meanwhile, the parties were also litigating in Canada about the Canadian patent. That patent was found to be valid and infringed. Damages have not yet been assessed. The illegality issue arises because Servier argues that it is contrary to public policy for Apotex to recover damages for being prevented from selling a product whose manufacture in Canada would have been unlawful there as an infringement of Serviers Canadian patent. Servier won on this point at first instance before Arnold J but lost in the Court of Appeal. The Court of Appeal thought that the infringement of the Canadian patent did not count as turpitude for the purposes of the illegality defence, because: (i) Apotex honestly and reasonably believed that the Canadian patent was invalid too; (ii) it was important that Servier should pay once it had been discovered that it was enjoying a monopoly it was not entitled to; and (iii) the effect of the Canadian patent was limited to Canada, where (iv) the Canadian court had refused to grant an injunction and (v) Apotex was paying damages which would be taken into account when calculating Serviers liability on the cross undertaking. Servier appealed to the Supreme Court. The Supreme Court unanimously dismisses Serviers appeal, but on grounds which differ from those of the Court of Appeal. It holds that the infringement of the Canadian patent by Apotex does not constitute turpitude for the purposes of the ex turpi causa defence. Lord Sumption, with whom Lord Neuberger and Lord Clarke agree, gives the main judgment. Lord Mance agrees with Lord Sumption and offers some further comments. Lord Toulson also dismisses the appeal but agrees with the approach taken by the Court of Appeal. The majority of the House of Lords in Tinsley v Milligan [1994] 1 AC 340 rejected the public conscience approach on the ground that it imported a discretionary element into what was in reality a rule of law [13 18]. The Court of Appeal was wrong to treat the question as depending on the culpability of the illegality, the proportionality of the application of the defence or the general merits of the particular case [19]. Turpitude involves a breach of the public law of the state (or in some cases its public policy). The paradigm case of turpitude is a criminal act. In addition, the category of turpitude includes certain quasi criminal acts, such as: (i) dishonesty or corruption; (ii) certain anomalous acts (such as prostitution) which, while not criminal, are contrary to public policy and commonly involve criminal liability on the part of others; and (iii) the infringement of statutory rules enacted for the protection of the public interest and attracting civil sanctions of a penal character [23 30; 34]. The grant of a patent gives rise to private rights, the infringement of which does not engage the public interest so as to give rise to the ex turpi causa defence [30]. Lord Toulson agrees that the appeal should be dismissed, but he says that the Court of Appeal was right to take public policy considerations into account, because the defence is based on public policyas a majority of the Supreme Court recognised in Hounga v Allen [2014] UKSC 47 [62]. The public interest in the enforceability of cross undertakings in damages is an important factor pointing in favour of the recovery of damages by Apotex [63]. It may, however, be necessary to re analyse Tinsley v Milligan [1994] 1 AC 340 in a future case [64].
The appellant, Mr Assange, is the subject of a request for extradition by the Swedish Prosecuting Authority for the purposes of an investigation into alleged offences of sexual molestation and rape. Mr Assange is in England. A domestic detention order was made by the Stockholm District Court in Mr Assanges absence, and was upheld by the Svea Court of Appeal. A prosecutor in Sweden thereafter issued a European Arrest Warrant (EAW) on 2 December 2010 pursuant to the arrangements put in place by the Council of the European Union in the Framework Decision of 13 June 2002 on the EAW and the surrender procedures between Member States (2002/584/JHA)(the Framework Decision), which were given effect in the United Kingdom in Part 1 of the Extradition Act 2003 (the 2003 Act). Mr Assange challenged the validity of the EAW on the ground (amongst others) that it had been issued by a public prosecutor who was not a judicial authority as required by article 6 of the Framework Decision and by sections 2(2) and 66 of the 2003 Act. Sweden had designated prosecutors as the sole competent authority authorised to issue EAWs in accordance with article 6(3) of the Framework Decision. Mr Assange contended that a judicial authority must be impartial and independent both of the executive and of the parties. Prosecutors were parties in the criminal process and could not therefore fall within the meaning of the term. If, contrary to this argument, prosecutors could issue EAWs under the Framework Decision, then he still submitted that they fell outside the definition in the 2003 Act, as it was clear that Parliament had intended to restrict the power to issue EAWs to a judge or court. His challenge failed before the Senior District Judge at the extradition hearing and on appeal before the Divisional Court. The Supreme Court granted permission to bring an appeal on this ground as the issue was one of general public importance. The Supreme Court by a majority of 5 to 2 (Lady Hale and Lord Mance dissenting) dismisses the appeal and holds that an EAW issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of section 2(2) and 66 of the 2003 Act. Article 34 (2)(b) of the Treaty on European Union provides that framework decisions are binding on member states as to the result to be achieved but that national authorities may choose the form and method of achieving this. For the reasons given by Lord Mance in his judgment [208 217] the Supreme Court is not bound as a matter of European law to interpret Part 1 of the 2003 Act in a manner which accords with the Framework Decision, but the majority held that the court should do so in this case. The immediate objective of the Framework Decision was to create a single system for achieving the surrender of those accused or convicted of serious criminal offences and this required a uniform interpretation of the phrase judicial authority [10][113]. There was a strong domestic presumption in favour of interpreting a statute in a way which did not place the United Kingdom in breach of its international obligations [122] An earlier draft of the Framework Decision would have put the question in this appeal beyond doubt, because it stated expressly that a prosecutor was a judicial authority. That statement had been removed in the final version. In considering the background to this change, the majority concluded that the intention had not been to restrict the meaning of judicial authority to a judge. They relied, as an aid to interpretation, on the subsequent practice in the application of the treaty which established the agreement of the parties. Some 11 member states had designated public prosecutors as the competent judicial authority authorised to issue EAWs. Subsequent reviews of the working of the EAW submitted to the European Council reported on the issue of the EAWs by prosecutors without adverse comment and on occasion with express approval [70] [92][95][114 119][160 170]. Lord Phillips felt that this conclusion was supported by a number of additional reasons: (1) that the intention to make a radical change to restrict the power to issue EAWs to a judge would have been made express [61], (2) that the significant safeguard against the improper use of EAWs lay in the preceding process of the issue of the domestic warrant which formed the basis for the EAW [62], (3) that the reason for the change was rather to widen the scope to cover some existing procedures in member states which did not involve judges or prosecutors [65] and that the draft referred to competent judicial authority which envisaged different types of judicial authority involved in the process of executing the warrant [66]. Lord Dyson preferred not to infer the reasons for the change [128] and did not find the additional reasons persuasive [155 159]. Lord Walker and Lord Brown also found these reasons less compelling [92][95]. Lord Kerr relied on the fact that public prosecutors in many of the member states had traditionally issued arrest warrants to secure extradition and a substantial adjustment to administrative practices would have been required [104]. Parliamentary material relating to the debates before the enactment of the 2003 Act were held by the majority to be inadmissible as an aid to construction under the rule in Pepper v Hart [1993] AC 593, given the need to ensure that the phrase judicial authority had the same meaning as it had in the Framework Decision [12] [92][98]. Lord Kerr remarked that that it would be astonishing if Parliament had intended radically to limit the new arrangements (thereby debarring extradition from a number of member states) by use of precisely the same term as that employed in the Framework Decision [115][161]. Lord Mance, dissenting, held that the common law presumption that Parliament intends to give effect to the UKs international obligations was always subject to the will of Parliament as expressed in the language of the statute [217]. In this case, the correct interpretation of judicial authority in the Framework Decision, a question of EU law, was far from certain [244]. Thus if Parliament had intended to restrict the power to issue EAWs to judges or courts, that would not have required a deliberate intention to legislate inconsistently with the Framework Decision. As the words in the statute were ambiguous, it was appropriate to have regard to ministerial statements, and those statements showed that repeated assurances were given that an issuing judicial authority would have to be a court, judge or magistrate [261]. Lady Hale agreed with Lord Mance that the meaning of the Framework Decision was unclear and that the Supreme Court should not construe a UK statute contrary both to its natural meaning and to the evidence of what Parliament thought it was doing at the time [191].
The appeal relates to a restrictive covenant given by the developer of a shopping centre in a lease that it granted to a retailer over part of the centre. In giving the covenant the developer and later the respondent (Peninsula) each undertook not to allow any substantial shop to be built on the rest of the centre in competition with the appellant (Dunnes). Peninsula now argues that the covenant engages the doctrine of restraint of trade (the doctrine); that it is unreasonable; and that it is therefore unenforceable. This appeal concerns whether the covenant engages the doctrine. The developer, Mr Shortall, wished to develop a shopping centre on land that he owned in Londonderry. He wanted an anchor tenant there in order to attract other retailers, and so he granted a lease to Dunnes, a subsidiary in a Dublin based group of retail companies. In the lease he covenanted that any development on the site would not contain a unit of 3,000 square feet or more whose purpose was the sale of food or textiles. Dunnes built its store and the centre opened. Mr Shortall later assigned his freehold interest in the land, together with the burden of the covenant, to the respondent (Peninsula), a property holding company which he managed and which he and his wife owned. The success of the shopping centre subsequently declined. Peninsula brought a claim in the High Court of Northern Ireland seeking (among other things) a declaration that the covenant was unenforceable at common law. McBride J dismissed the claim. She observed that, following the decision of the House of Lords in Esso Petroleum Co Ltd v Harpers Garage (Stourport) Ltd [1968] AC 269 (Esso), it was necessary, in order to determine whether the covenant engaged the doctrine, to ask whether Mr Shortall or Peninsula had, on entry into the covenant, surrendered a pre existing freedom of theirs to use the land. She held that Mr Shortall had surrendered such a freedom, but that Peninsula had not; and that the covenant had therefore engaged the doctrine only until the assignment to Peninsula had occurred. The Court of Appeal allowed Peninsulas appeal, holding that the doctrine had been engaged both before and after the assignment. Dunnes now appeals to the Supreme Court. The Supreme Court unanimously allows the appeal and dismisses Peninsulas common law claim. Lord Wilson gives the lead judgment, with which Lord Lloyd Jones, Lady Arden and Lord Kitchin agree. Lord Carnwath gives a concurring judgment. Lord Wilson observes that the courts duty in this appeal is to examine the decision in Esso in the light of questions of logic and public policy and to ask whether the surrender of a pre existing freedom is an acceptable criterion for engagement of the doctrine [16]. Dunnes made a preliminary argument that, as neither Mr Shortall, a developer, nor Peninsula, a property holding company, was a trader, no restraint on them could be a restraint of trade. That argument appears to be too narrow. The covenant does restrain trade because it restrains Peninsula from causing or permitting a trade in specified goods in a retail unit of a specified size on the site [17]. The Esso case concerned a type of covenant under which the owner of a petrol station undertakes to buy from a particular supplier all the petrol to be sold at the station (a solus agreement). The respondent had entered into two solus agreements with Esso, each in respect of a different petrol station [19]. The respondent later repudiated the agreements and Esso sought an injunction requiring it to abide by them [20]. In the House of Lords, Lord Reid, with the support of the majority, formulated what has become known as the pre existing freedom test: he stated that a covenant restraining the use of land would engage the doctrine if, on entering into it, the person doing so (the covenantor) gives up some freedom which otherwise he would have had [23 24]. He held, again with majority support, that in relation to both agreements the doctrine was engaged [28]. Lord Wilberforce put forward a different test, known as the trading society test, under which a covenant restraining the use of land does not engage the doctrine if it is of a type which has passed into the accepted and normal currency of commercial or contractual or conveyancing relations and which may therefore be taken to have assumed a form which satisfies the test of public policy [26, 46]. Applying this test, he, too, concluded that the solus agreements engaged the doctrine [28]. The pre existing freedom test has received intense academic criticism [31]. In terms of public policy, which is the foundation of the doctrine, there is no explanation why a restraint should engage the doctrine if the covenantor enjoyed a pre existing freedom but why an identical restraint should not engage it if he did not do so [44]. The trading society test, by contrast, is consonant with the doctrine [47]. The court should therefore make use of its ability, recognised in the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234, to depart from a previous decision of the House of Lords, and should depart from the pre existing freedom test formulated in the Esso case [49 50]. The objections to the test are that it has no principled place within the doctrine; that it has been criticised for over 50 years but scarcely defended; and that courts in Australia and parts of Canada have rejected it [32 43, 50]. Application of the trading society test to the facts of this case is straightforward and so there is no need to send the matter back to a lower court. For it has long been accepted and normal for the grant of a lease in part of a shopping centre to include a restrictive covenant on the part of the landlord in relation to the use of other parts of the centre. It follows that the covenant in this case has at no time engaged the doctrine [51]. So the question of whether the assignment of the burden of the covenant to Peninsula affected the engagement of the doctrine no longer arises [52]. Peninsula seeks an alternative remedy under the Property (Northern Ireland) Order 1978, which gives the Lands Tribunal or the High Court the power to make an order modifying or extinguishing the covenant if it constitutes an impediment to the enjoyment of land. That is a more satisfactory vehicle for resolution of the issues in this case. Peninsulas claim under the Order should now proceed to be heard [54 57]. In his concurring judgment Lord Carnwath agrees that the pre existing freedom test should be discarded in favour of the trading society test and that the appeal should be allowed [59 60, 68]. As an exception to ordinary principles of freedom of contract, the doctrine should not be extended without justification beyond established categories [61]. What matters is the practical effect of the restriction in the real world, and its significance in public policy terms [62].This case is different from Esso and the other trading cases: for the agreement is not in essence an agreement between traders but a transaction in land. The only trade which might be inhibited by it is that of a potential future occupier. None of the authorities suggests that there is any public policy reason or legal basis for protecting that mere possibility [63]. The covenant in this case does not restrict, but rather facilitates, the developers business [65].
This appeal concerns the proper construction of a term of a lease which gives the Appellant (the tenant) the option to purchase the leased property from the Respondent (the landlord). The question was whether, given the particular drafting, the Respondent was entitled to take into account hope value attributable to the potential for residential development when it determined the option price. The lease in question was a fifty year lease of land near Cumbernauld, commencing on 1 June 1999. The Appellant was to develop a golf course on the land. The Appellant was given an option to purchase the land. The lease set out how the option price was to be calculated. The relevant part of the clause provided that it was to be equal to the full market value of the subjects as at the date of entry for the proposed purchase (as determined by the landlords) of agricultural land or open space suitable for development as a golf course. But, in determining the full market value, the landlords were to assume that the subjects were in good and substantial order and repair, that all obligations of the landlords and the tenants under the lease had been complied with and that they were ready for occupation. They were to disregard any improvements carried out by the tenants during the period of this lease otherwise than in pursuance of an obligation to the landlords, and any damage to or destruction of the subjects of the lease. Neither party seems to have contemplated, when they entered into this lease, that the site might be used for residential development. However, it has now been identified as being in an area which has the potential for housing led urban expansion. This gives it a hope value which was not in prospect when the lease was entered into. The Appellant exercised the option to purchase on 8 October 2007. The Respondent fixed the price at 5.3 million. This figure included value attributable to the development potential of the land. The Appellant took issue with this valuation on the ground that it was far in excess of the value of the land as a golf course. Eventually, the Respondent served notice on the Appellant requiring payment of 5.3 million. When the Appellant did not pay, the Respondent terminated the option contract. The parties are agreed that, if the termination was valid, the option was spent and could not be exercised again. The Appellant sought a declaration that the option contract has not been validly rescinded and that the Respondent is to determine the full market value of the land without reference to any increase in value attributable to its potential for residential development. They relied, in particular, on the inclusion in the lease of the words of agricultural land or open space suitable for development as a golf course. The Lord Ordinary found for the Appellant. His decision was reversed by the Inner House, which held that full market value meant what it said; that express wording would have been needed in order for considerations relevant to market value to be ignored, and that there was no such wording here. The Appellant appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. It holds that the Respondent was entitled, when determining the option price, to take full account of the lands potential for development. Lord Hope holds that the problem arises because of the conflict between the words of the first part of the clause (full market value of the subjects of agricultural land or open space suitable for development as a golf course) and the assumptions and disregards in the second part. These two parts of the clause approach the question of value on different bases. The earlier parts were designed to settle the price for the purchase of land that will have a value in the open market that takes account of the potential for development. The assumptions and disregards were designed to settle the basis for a purchase of the land in its existing use. The court has to recognise the poor quality of the drafting and try to give a sensible meaning to the clause as a whole, which takes account of the factual background known to the parties at the time they entered into the lease: [16] [19]. The commercial or business object of the provision has to be taken into account: [21] The Appellants construction would provide them with a substantial windfall at the expense of the Respondent: [23]. Had reasonable commercial parties directed their mind to the benefits which would accrue to the Appellant if the option was exercised, they would have agreed that the option price was to be the full market value of the land, taking account of any development potential. That is what the parties must be taken to have agreed in this case: [23]. Lord Rodger also holds that the lease should be construed as a commercial agreement. It seems unlikely that parties to such an agreement would have intended the Appellants construction: [26]. Something had gone wrong with the drafting: [27]. In those circumstances, it is useful to start with those parts of the clause whose meaning was clear and then to consider those parts which are more difficult to understand: [28]. The meaning of the assumptions and disregards is clear: [28]. They provide that, contrary to the approach taken by the parties, the valuation is to be on the basis that the golf course has been constructed and is in good order and repair: [29] [32]. The words of agricultural land or open space suitable for development as a golf course cannot be construed inconsistently with the clear directions in the assumptions and disregards so as to require the valuer to assume that the golf course had not been developed: [33]. The clause contains no instructions to ignore any other factor which might be relevant to the value of the golf course: [34]. The approach contended for by the Appellant would be an unusual and artificial approach to valuation, given that there was no limit on the use to which the land could be put after the option was exercised: [36]. Lady Hale agrees with Lord Rodgers approach and also concludes that the appeal should be dismissed: [44]. Lord Clarke agrees that the appeal be dismissed, emphasising that any other conclusion would flout business common sense: [45]. Sir John Dyson agrees that the appeal should be dismissed, preferring Lord Rodgers reasoning to Lord Hopes to the extent that there is any difference between them: [46].
This appeal concerns two questions. The first is, in what circumstances will the law treat the authority of an agent as irrevocable? The second is whether the receipt of money at a time when the recipient knows that imminent insolvency will prevent him from performing a corresponding obligation, can give rise to liability to account as a constructive trustee. Angoves PTY is an Australian winemaker, which employed an English company, D&D Wines International Ltd, as its agent and distributor in the UK. D&D bought wines from Angoves, and also sold wines on Angoves behalf to UK retailers. That relationship was governed by an Agency and Distribution Agreement (ADA), which was terminable by either side on six months notice, or immediately on the appointment of an administrator or liquidator. D&D entered into administration on 21 April 2012, and into creditors voluntary liquidation on 10 July 2012. There were outstanding invoices in the amount of A$874,928.81, which represented the price of wine that D&D had sold to two UK retailers who had not yet paid. Angoves lawfully terminated the ADA and purported to terminate D&Ds authority to collect the price from those two retailers by written notice on 23 April 2012. The termination notice declared that Angoves proposed to collect the price directly from the customers and would account separately to D&D for their commission. The liquidators of D&D objected to this. They said that they were entitled to collect on the outstanding invoices, deduct the commission due to D&D, and leave Angoves to prove in the winding up for the rest of the price. They argued that D&Ds authority as agent to collect the price of the goods was irrevocable, because they needed it to recover their commission. Angoves disputed this. They argued in the alternative that the moneys held by D&D were held on constructive trust for them. The judge held that D&Ds authority to collect the price from the customers ended on service of Angoves termination notice. The Court of Appeal allowed the liquidators appeal, holding that D&Ds authority survived the termination notice. The argument that D&D held the proceeds of the invoices on trust for Angoves failed both at first instance and on appeal. The Supreme Court unanimously allows Angoves appeal on the first question. D&Ds agency was revoked by Angoves termination notice, but the moneys were not held on constructive trust for Angoves. Lord Sumption gives the judgment, with which the other Justices agree. The authority of an agent is inherently terminable, even where it is agreed to be irrevocable, unless it is coupled with a relevant interest of the agent. This requires, in addition to an agreement that the agents authority is to be irrevocable, that the authority is given to secure a subsisting proprietary interest or personal liability of the agent. The mere existence of such an interest will not generally be enough to make the authority irrevocable [7]. Neither of those conditions is satisfied on the facts of this case. D&Ds authority was not expressed to be irrevocable in the agency agreement, and there is no implication to that effect. Because there was nothing in the agreement to stop customers paying Angoves directly, collection of commission could not sensibly be regarded as a right or security of D&D. Deduction from the price paid by customers was not the only way that D&D could recover its commission: customers could pay Angoves directly, who would then pay it to D&D [16]. Turning to the second question, the argument was that where money was paid for a consideration which the payee knew at the time of receipt was bound to fail because of his imminent insolvency, that fact alone was enough to give rise to a constructive trust of the money in the payees hands. This argument is rejected. The price was paid to D&D by the customers absolutely, in discharge of their contractual liability. The judge had held that the agency relationship did not itself give rise to a trust of money in D&Ds hands which they had collected from customers, and that the agency relationship between D&D and Angoves was in the relevant respects one of debtor and creditor. In these circumstances the mere fact that it was received at a time when D&Ds personal liability to account to Angoves would not be performed could make no difference to the basis on which they held the money. It did not become unconscionable for them to retain it simply because the statutory insolvency regime intervened to require it to be shared pari passu with other creditors (Neste Oy v Lloyds Bank Plc [1983] 2 Lloyds Rep 658 and In re Japan Leasing Europe Plc [1999] BPIR 911 overruled) [31].
The appellant obtained a job as a playground assistant. In connection with her employment, the police were required to provide her with an enhanced criminal records certificate (ECRC). They disclosed to the school that she had been accused of neglecting her child and non cooperation with social services, and her employment was terminated. She claimed that the police disclosure violated her right to respect for her private life under the Human Rights Act (the HRA). The Supreme Court holds that, when determining whether to disclose non criminal related information retained in police records in connection with an application to work with vulnerable persons, the police must give due weight to the applicants right to respect for her private life. However, the facts narrated were true, the allegation was directly relevant to her employment and the school was entitled to be apprised of the information. Therefore, while the consequences for the appellants private life are regrettable, disclosure could not in this case be said to be disproportionate to the public interest in protecting vulnerable people [para [48], [49], [58] and [86]]. The appeal must be dismissed. Article 8 was applicable, as: (i) the dismissal affected Ls ability to interact with others and damaged her reputation [para [24]]; (ii) public information can implicate Article 8 when it is collected/stored by the public authorities [para [26]]; and (iii) the relevant information related to private proceedings [para [28]]. All ECRC disclosure decisions are likely to engage Article 8, as: (i) the information has been collected/stored in police records; and (ii) disclosure of relevant information is likely to diminish the subjects employment prospects. The proportionality of the proposed disclosure must be considered in each case [paras [29], [41] and [70]. The police must apply a two stage analysis, so as to consider whether: (i) the information is reliable and relevant; and (ii) in light of the public interest and the likely impact on the applicant, it is proportionate to provide the information [paras [40] and [79]]. Those who apply for positions that require an ECRC cannot be regarded as consenting to their privacy rights being violated. Consent is predicated on the basis that the right to respect for private life will be respected [para [43]]. Otherwise, legislation could easily circumvent HRA rights by effectively curtailing access to benefits unless people consent to invasions of their rights [para [73]]. The polices historic approach towards balancing the public interest in protecting vulnerable persons and respecting Article 8 rights was flawed, as they applied a general presumption that in cases of conflict the public interest should generally prevail [para [44]]. Article 8 requires that neither consideration be afforded precedence over the other each interest should be given careful consideration in assessing the proportionality of the proposed disclosure [paras [45], [63] and [85]]. Factors to be considered in assessing proportionality include: (i) the gravity of the relevant information; (ii) its reliability; (iii) its relevance; (iv) the existence of an opportunity to make representations; (v) the period that has elapsed since the relevant events; and (vi) the adverse effect of the disclosure [para [81]]. If disclosure may be: (i) irrelevant; (ii) unreliable; or (iii) out of date, the applicant should be given the opportunity to make representations prior to the decision to disclose [paras [46], [63] and [82]]. Lord Scott agreed in the result but differed in reasoning, stating that: (i) a presumption prioritising the public interest did not breach Article 8; and (ii) the consent of the applicant negated any claimed violation [paras [58] and [59]. Judgments
An extended determinate sentence (EDS) is one of the available sentences for an offender who is considered dangerous. It comprises two elements: an appropriate custodial term and the extension period for which an offender is subject to a licence. Under section 246A of the Criminal Justice Act 2003, an offender serving an EDS becomes eligible for parole after two thirds of the appropriate custodial term. By contrast, other categories of prisoners serving determinate sentences become eligible after half of their sentence. Prisoners serving certain types of indeterminate sentences (i.e. discretionary life sentences) will become eligible for parole after their specified minimum term, which is ordinarily fixed at half the determinate sentence they would have received had they not been subject to a life sentence. On 23 May 2013, the appellant was sentenced to an EDS in respect of ten counts of rape. The appropriate custodial term was fixed at 21 years, with an extension period of four years. The appellant, Mr Stott, sought judicial review of his sentence. He claimed there was no justification for the difference in treatment in relation to eligibility for parole. He claimed that this was unlawful discrimination within Article 14 of the European Convention on Human Rights (ECHR), combined with Article 5 (the right to liberty). Article 14 prohibits discrimination on any ground such as sex, race or other status. The High Court dismissed his claim, but granted a certificate permitting Mr Stott to appeal directly to the Supreme Court. It was agreed that the right to apply for early release falls within the ambit of Article 5. As to whether Article 14 applies, there are two issues. The first is whether the different treatment of Mr Stott is on a ground within the meaning of other status. The second has two parts: (a) whether EDS prisoners are in an analogous situation to either indeterminate sentence prisoners or other determinate sentence prisoners; and, if so, (b) whether there is an objective justification for the difference in treatment between the categories of prisoners. A majority of the Supreme Court dismisses the appeal, holding that the EDS scheme does not breach Article 14 with Article 5. Lady Black gives the leading judgment, with which Lord Carnwath and Lord Hodge agree, save on issues specified in their separate judgments. Lady Hale and Lord Mance both give dissenting judgments. Issue 1 the status issue The Court holds by a majority (Lady Black, Lord Hodge, Lady Hale and Lord Mance) that Mr Stott had the requisite status for Article 14 [81, 184, 212, 236]. In light of the European Court of Human Rights (ECtHR) decision in Clift v United Kingdom (Application No 7205/07), the Court should depart from the decision in R (Clift) v Secretary of State for the Home Department [2007] 1 AC 484. In that case the House of Lords had held that different treatment of a prisoner serving a sentence of 15 years or more could not be said to be on the ground of other status [70]. For the purposes of determining status, there is no real distinction between Mr Clift as a prisoner serving 15 years or more and Mr Stott as a prisoner serving an EDS [79]. Considering all the relevant case law and bearing in mind that grounds within Article 14 are to be given a generous meaning, the difference in treatment of EDS prisoners in relation to early release is a difference within the scope of Article 14, on the ground of other status [81, 185, 237]. Lord Carnwath concludes that difference of treatment of EDS prisoners is not attributable to some status for the purposes of Article 14. He would dismiss the appeal on that basis [179]. Issue 2 (a) analogous situation The Court holds by a majority (Lady Black, Lord Carnwath, Lord Hodge) that EDS prisoners are not in an analogous situation to other prisoners. The various sentencing regimes must be regarded as whole entities, each designed for particular circumstances and characteristics. The differences between the sentencing regimes are such that prisoners serving sentences under different regimes are not in analogous situations [155, 180, 195]. Lady Hale and Lord Mance (dissenting) hold that EDS prisoners are in an analogous situation to other prisoners serving determinate sentences and prisoners serving discretionary life sentences [214, 239]. Lady Hale says that for all three categories of prisoner, the most important question from their point of view is when will I get out? The essence of the right in question is liberty and for that purpose their situations are relevantly similar [214]. Issue 2 (b) objective justification The Court holds by a majority (Lady Black, Lord Carnwath, Lord Hodge) that, if EDS prisoners were in an analogous situation, the difference of treatment would be objectively justified [155, 180, 201]. The aim of the EDS provisions, which includes public protection, is legitimate [152]. As to whether the EDS scheme is a proportionate means of achieving that aim, the Court must consider each sentence as a whole. Within the framework of statutory provisions and sentencing guidelines, the sentencing judge imposes the sentence that best meets the characteristics of the offence and the offender. The early release provisions are part of the chosen sentencing regime and objective justification should be considered in that wider context [154]. The EDS is better compared to an indeterminate sentence, rather than to other types of determinate sentence. Counter balancing the indeterminate prisoners earlier eligibility for parole is the lack of any guaranteed end to his incarceration, and the life licence to which he is subjected. This undermines the argument that the difference in treatment in relation to early release is disproportionate or unfair [155]. The EDS is a separate sentencing regime that is neither arbitrary nor unlawful [200]. Lady Hale and Lord Mance (dissenting) hold that that there is no justification for insisting that an EDS prisoner stay in prison for two thirds of the custodial term appropriate to the seriousness of his offending, while a discretionary life sentence prisoner, who is likely to be even more dangerous than an EDS prisoner, would be considered for release after half of what would have been an appropriate determinate sentence [218 220, 246, 248].
Eclipse Film Partners No 35 LLP (Eclipse) filed a tax return in respect of the period which ended on 5 April 2007. HM Revenue & Customs (the Revenue) issued a closure notice determining that Eclipse did not carry on a trade or business. If correct, this would have severely adverse tax consequences for Eclipse. Eclipse appealed to the First tier Tribunal (Tax Chamber) (FTT) against the closure notice. The appeal was allocated as a Complex case under Rule 23 of the Tribunal Procedure (First Tier) (Tax Chamber) Rules 2009 and, within the 28 day period specified in Rule 23, Eclipse served a request under Rule 10(3), that the proceedings be excluded from potential liability for costs or expenses under Rule 10(1)(c). Eclipse and the Revenue agreed, and the FTT duly made, directions for the procedure leading up to the hearing of that appeal. The directions included, at paragraph 13, a direction that provided that: (i) the parties should try and agree an appropriate bundle of documents, which should be prepared by Eclipse, who were to serve three copies on the Revenue and three copies on the FTT; and (ii) if the parties were unable to agree the Bundle, each party was to prepare its own bundle of documents and serve three copies on the other party and on the FTT. As the parties were unable to agree a bundle, the FTT gave an oral direction that Eclipse prepare the bundle and that the costs be shared (the Order). Eclipse then prepared the bundle, which ran to over 700 lever arch files, in part due to the requests by the Revenue for the inclusion of documents. The FTT subsequently dismissed Eclipses appeal on the substantive tax issue. That decision was affirmed by the Upper Tribunal (the UT) on appeal, whose decision was in turn upheld by the Court of Appeal. Eclipse was refused permission to appeal to the Supreme Court on 13 April 2016. Following the hearing before the FTT, Eclipses agents sent the Revenue invoices for 108,395.48 representing half the cost of preparing the bundle. The Revenue applied to the FTT to set aside the Order on the ground that the FTT had no jurisdiction to give such a direction. The FTT dismissed the Revenues application. The Revenue appealed and the UT held that the Order was made without jurisdiction and set it aside. Eclipses appeal to the Court of Appeal on this point was dismissed. Eclipse now appeals to the Supreme Court. The Supreme Court unanimously dismisses Eclipses appeal. Lord Neuberger gives the only judgment, with which the other Justices agree. Section 29 of the Tribunals, Courts and Enforcement Act 2007 provides that the costs of proceedings in the FTT shall be in the discretion of the FTT, and that the FTT has power to make orders for costs, subject to the Tribunal Procedure Rules [2]. The rules which governed the instant proceedings are the Tribunal Procedure (First Tier) (Tax Chamber) Rules 2009 (SI 2009/273) (L1) (the Rules) [3]. Rule 5 deals with the FTTs case management powers. Rule 5(3)(i) provides that the FTT may, inter alia, by direction require a party to produce a bundle for a hearing. Rule 10 is headed Orders for costs. With one exception, the FTT can only make two types of costs order under Rule 10(1): a wasted costs order under 10(1)(a), and an order for costs where a party has behaved unreasonably under 10(1)(b). The exception is under 10(1)(c), which provides that there will be no such limitation on the FTTs jurisdiction to award costs if two conditions are satisfied: (i) that the proceedings are a Complex case under Rule 23, and (ii) that the taxpayer has not served a request, within the requisite 28 day period, that there should be no potential liability under Rule 10(1)(c) [6]. The reasoning of the Court of Appeal and the Upper Tribunal, which is reflected in the Revenues arguments before the Court, is that the FTT would have had a broad jurisdiction as to costs if no request under Rule 10(1)(c)(ii) had been served. However, because such a request was served by Eclipse, the FTT could only make an order for costs if Rules 10(1)(a) or Rule 10(1)(b) could be invoked. Neither of those provisions applied in the present case [14]. Eclipse raised two arguments in response. First, it submitted that the Order was not an order for payment of costs, but an order for the sharing of costs. The Court rejects that argument. The Order would undoubtedly involve the Revenue paying costs in the sense that they would be reimbursing Eclipse half the expenses it had incurred in preparing the bundles [15]. The second argument is that it is inherent in Rule 5(3) that the orders that the FTT makes under that provision can include terms as to costs [16]. The Court rejects that argument for a number of reasons [16]. First, Eclipses interpretation of Rule 5(3) robs Rule 10(1) of much of its force [17 18]. Secondly, Eclipses argument is inconsistent with Rules 10(3) to 10(7), which contain rules as to how any costs awarded by the FTT pursuant to Rule 10(1) are to be assessed and recovered. If there is a power to award costs under Rule 5, there would be a lacuna in the Rules because there are no such provisions governing the assessment and recovery of costs in respect of Rule 5 [19]. Thirdly, rejecting Eclipses case does not mean that the FTT cannot give permission to amend, or grant an adjournment, on terms as to costs [20]. Fourthly, there is Rule 16(2)(b), which requires the FTT to provide for the costs of a witness required to attend a hearing to be paid for one or other party. This shows that, where the Rules intend to enable or require the FTT to render a party liable for costs, they say so [21].
The appellants in these two appeals are prisoners serving sentences of life imprisonment imposed for murder, combined in the case of McGeogh with a later sentence of seven and a half years for violent escape from lawful custody. Both the appellants claim that their rights have been and are being infringed because they are not entitled to vote. United Kingdom law currently contains a general prohibition on voting by prisoners. In a series of cases (Hirst (No 2) v UK, Greens v UK and Scoppola v Italy) the European Court of Human Rights (ECtHR) has held that a blanket prohibition of this nature is an indiscriminate restriction on a vitally important right and, as such, incompatible with Article 3 of Protocol No 1 (A3P1, the duty to hold free and fair elections) of the European Convention on Human Rights (the Convention) [18 22]. The appellant Peter Chester issued a claim for judicial review in December 2008 in relation to UK and European Parliamentary elections. He relies on A3P1, as incorporated into domestic law by the Human Rights Act (the HRA), and also on European Community or now Union law (EU law). The appellant George McGeochs claim for judicial review was issued in February 2011 in relation to local and Scottish Parliamentary elections. He relies solely on EU law [1 3]. Both claims were dismissed by the courts below. The High Court and Court of Appeal held in Chesters case that it was not their role to sanction the Government for the delay in implementing the decision in Hirst (No 2) or to advise as to how the Government might implement a voting system that would be compatible with A3P1, and that EU law raised no separate issue. The Inner House dismissed McGeoghs claim on the ground that EU law only conferred a right to vote in municipal (i.e. local) elections on EU citizens residing in a Member State of which they were not nationals. The Supreme Court permitted McGeoch to add a complaint that his rights in relation to EU Parliamentary elections were also being infringed [2 3]. The issues before the Supreme Court are: (a) whether it should apply the principles established in Hirst (No 2);(b) whether, if such principles are applied, the current ban on voting is incompatible with Chesters rights under A3P1, and Supreme Court should make a further declaration of incompatibility under the HRA; (c) whether EU law recognises an individual right to vote, in terms paralleling or greater than that arising under A3P1, on which the appellants can rely upon as EU citizens claiming to vote in their own countries; and (d) what consequences would follow if EU law were to recognise an individual right to vote of this nature and, in particular, what if any relief would be available to Chester and McGeogh. The Supreme Court unanimously dismisses both appeals. Lord Mance gives the lead judgment. Lady Hale, Lord Clarke and Lord Sumption give additional judgments. With regard to claims under the Convention, the Supreme Court applies the principles in Hirst (No 2) and Scoppola regarding the blanket ban on voting, but declines to make any further declaration of incompatibility in respect of Chester [39 42]. With regard to EU law, this does not provide an individual right to vote paralleling that recognised by the ECtHR in its case law. The resolution of these appeals does not require a reference to the Court of Justice of the European Union (CJEU) [46 47, 58, 59, 63 64 and 68]. Claims under the Human Rights Act Under the HRA, the Supreme Court is required to take into account decisions of the ECtHR, not necessarily to follow them. This enables the national courts to engage in a constructive dialogue with the ECtHR. However, the prohibition on prisoner voting in the UK has now been considered by the Grand Chamber of the ECtHR twice and, on each occasion, found to be incompatible with A3P1. In these circumstances, it would have to involve some truly fundamental principle of law or the most egregious oversight or misunderstanding before it could be appropriate for the Supreme Court to refuse to follow Grand Chamber decisions of the ECtHR. The ban on prisoner voting is not a fundamental principle of law in the UK, and the circumstances do not justify a departure from the ECtHRs caselaw [25 35]. Accepting that, on the reasoning in Hirst (No 2), Chester was a victim for the purposes of the HRA and the Convention and entitled as such to bring a claim against the respondents, that does not necessarily entitle him to any particular remedy under the HRA. A declaration of incompatibility is a discretionary remedy. The incompatibility of the prohibition on prisoner voting in the UK with the Convention is already the subject of a declaration of incompatibility made in Smith v Scott and is currently under review by Parliament. In these circumstances there is no point in making a further declaration of incompatibility. This is particularly so in the case of Chester. Given that he is serving a sentence of life imprisonment, ECtHR caselaw indicates that he would not himself have a right to benefit from any amendments to the law on prisoner voting necessary to remedy the present incompatibility of UK law with the Convention [36 42]. That is so although his tariff period has expired and he remains in detention because his detention continues to be necessary for the protection of the public. Claims under EU law The provisions on voting contained in the applicable European Treaties focus on the core concerns of ensuring equal treatment between EU citizens residing in Member States other than that of their nationality, and so safeguarding freedom of movement within the EU. Eligibility to vote in Member States is basically a matter for national legislatures [58 59]. The CJEU has scrutinised national eligibility criteria for conformity with the EU legal principle of non discrimination in a context where Netherlands law extended the right to vote of its nationals to nationals resident in some, but not all, non EU States. But there is no equivalent link with EU law in the present cases [60 64]. Additional EU analysis For completeness, the Supreme Court has considered the consequences if, contrary to their conclusions, EU law were to regarded as conferring an individual right to vote on which McGeoch and Chester could rely. On that hypothesis, it considers that: The EU legal principle of non discrimination would still not be engaged. Convicted prisoners serving their sentence are not in a comparable position to persons not in prison [65 68] In any event, the general ban on prisoner voting could not have been disapplied as a whole, and the relevant domestic legislation could not have been interpreted compatibly with EU law. Nor could the Supreme Court itself have devised a scheme compatible with EU law; that would be for Parliament. Therefore, the only relief that might have been appropriate would have been a declaration that the legislative provisions governing eligibility to vote in European Parliamentary and municipal elections in the UK were inconsistent with EU law, although even that would not have appeared appropriate in the instant cases [72 74]. Neither of the appellants could have had any arguable claim for damages in respect of any breach of EU law [82 83].
The Appellants brother, who is now deceased (the Deceased), held a secure tenancy under the Housing Act 1985 (the 1985 Act) of a property owned by the London Borough of Southwark (the Authority). The Appellant contends that he lived in his brothers home for the 12 months preceding his death, caring for him during his terminal illness. The Appeal arises from the efforts of the Appellant to resist the Authoritys efforts to evict him from the property. On 4 February 1987, a conditional suspended possession order (the CSPO) was issued by the court against the Deceased on the ground he was in arrears of rent. The CSPOs terms provided that it would not become enforceable if he paid the sum due by 4 March 1987. He failed to pay by the specified deadline and so the CSPO became enforceable. However, the Authority did not take any action to evict him and he remained in the premises until his death some 18 years later, paying the rent as it became due plus sums towards the outstanding arrears. Two principal issues arise in the Appeal. Firstly, whether pursuant to s.82(2) of the 1985 Act the secure tenancy was terminated by the Deceaseds failure to pay the arrears of rent by the date specified in the CSPO so that he remained in the property as a so called tolerated trespasser; or, alternatively, whether the tenancy continued until his death, with the effect that the tenancy could transmit to the Appellant via the Deceaseds estate. Secondly, whether the statutory right of a former secure tenant to apply to the court to postpone enforcement of a possession order, pursuant to s.85(2) of the 1985 Act, terminates on the death of a tenant, or is capable of transferring to the Appellant so as to allow him to apply to the court to postpone the possession order. The Supreme Court unanimously allows the appeal, holding that the tenants right to apply to the court to postpone enforcement of a possession order, and thus revive the secure tenancy, can survive death and transmit to a successor. The case is remitted to the county court for determination of the Appellants application for postponement of the possession order. Lord Hope delivered the leading judgment and Lady Hale delivered a separate concurring judgment. The First Issue: The Effect of s.82(2) It has been assumed since the Court of Appeals decision in Thompson [1987] 1 WLR 1425 that a secure tenancy is terminated immediately upon any term of a conditional possession order being breached [Lord Hope, para [15]]. Thompson was criticised in the House of Lords decision of Knowsley [2009] AC 636. However, notwithstanding reservations concerning the merits of the decision, the House of Lords refrained from disturbing it on the basis that: (i) 20 years had elapsed and tens of thousands of cases had proceeded on the basis that it accurately stated the law; and (ii) Parliament had legislated in respect of the issue in the Housing and Regeneration Act 2008 (the 2008 Act), and had opted to change the law only with prospective effect. A subsequent judicial decision with retrospective effect would thus run contrary to the will of Parliament [Lord Hope, paras [17] [18]]. There is much to said for the view that s.82(2) should be interpreted as only terminating a secure tenancy when the possession order is actually executed: (i) the conclusion in Thompson was unsupported by reasoning and no examination was conducted of the consistency of the courts interpretation with the other provisions of the 1985 Act; (ii) subsequent references to Thompson by the House of Lords were cursory and/or uncritical and could not be regarded as lending it any great support; (iii) the 1985 Act contemplates circumstances in which a secure tenancy would remain in force notwithstanding that a conditional possession order was outstanding; and (iv) this construction would avoid the creation of so called tolerated trespassers [Lord Hope, paras [20] [23]]. However, the alternate interpretation of s.82(2) is not unarguable and so the question is whether the Supreme Court should depart from the view taken by the House of Lords in Knowsley. The House of Lords 1966 Practice Statement on departure from its own previous decisions applies equally to the Supreme Court [Lord Hope, paras [24] [25]]. For the same reasons identified in Knowsley, essentially the passage of time and the need to respect the will of Parliament as expressed in the 2008 Act, it would not be appropriate for the Supreme Court to disturb the understanding of s.82(2) that has prevailed since Thompson [Lord Hope, paras [28] [31]]. The Second Issue: The Effect of s.85(2) The effect of s.85(2) must be resolved by construing the 1985 Act as a whole. The right is created and defined by a statute and it is the legislation which determines it metes and bounds; its ambit cannot be determined by what the common law would treat as an inheritable right [Lord Hope, para [36]]. The statutory language used in s.85(2) is wide and unqualified. There is no suggestion that the power of the court to order the postponement of the enforcement of a possession order is not exercisable after the tenants death. Given the broad character of the words used, it would be reasonable to expect express provision to be made if any such limitation was intended. Moreover, there are a number of readily foreseeable circumstances in which it would be desirable for the court to exercise the power after the tenant had died. The wording of the section does not compel the conclusion that the court would be powerless to provide relief in these circumstances [Lord Hope, para [38]]. Part IV of the 1985 Act contains other indications that support this construction [Lord Hope, para [39]]. The tenants death does not prevent the court from exercising its power under s.85(2) of the 1985 Act to postpone the effect of a possession order. This preserves the discretion of the court to do what is just in all the circumstances of the case, which itself provides a protection for the landlord that would be absent if an alternate construction was adopted [Lord Hope, paras [40] [41]]. Lady Hale noted the unforeseen and undesirable consequences of the notion of tolerated trespass to which the decision in Thompson had given rise. If Parliament had not legislated in the field, in the form of the 2008 Act, then it would have been incumbent upon the Supreme Court to set the matter aright [paras [44] [56]].
This appeal arises from proceedings under the Hague Convention on the Civil Aspects of International Child Abduction (the Convention). The Convention establishes procedures to ensure the prompt return of children to the state of their habitual residence. The question arising is the approach that the courts of this country should take when a child is brought here pursuant to an order made abroad in Convention proceedings which is later overturned on appeal. The proceedings concern a child, K, who was born in 2006 in Texas and is a United States citizen. His father is also a US citizen; his mother came to the UK from Ghana as a very young child and she has indefinite leave to remain in the UK. They married in Texas in December 2005 and lived together there. The marriage broke up and in March 2008 the father issued divorce proceedings in the Texas state court. That court made orders by consent providing for the mother to take care of K (in the former matrimonial home) while the father was posted abroad on military service. In July 2008 she took him to London. In March 2010 a welfare based custody hearing took place in the Texas court in which both parents were represented. The judge in those proceedings decided that it was in Ks best interests that he reside with his father and have contact with his mother. As a result K moved back to the US. The mother applied to the US Federal District Court for an order under the Convention, alleging that K had been habitually resident in the UK in March 2010 and that K had been wrongfully retained in Texas by the father. This argument succeeded in the District Court in August 2011. The father complied with the order to return K and his passport to the mother, whereupon the mother returned to the UK with K and they have lived here ever since. The father appealed against the order. On 31 July 2012 the US Court of Appeals for the Fifth Circuit overturned the decision of the District Court and on 29 August 2012 the District Court ordered Ks return to the US. When the mother did not comply, the father issued applications under the Convention in the UK. He argued that the mothers retention of K in the UK was wrongful because Ks habitual residence had remained in the US. He further argued that the UK court should exercise its inherent jurisdiction to return K to the US in the circumstances of his case, even if it was not required to do so under the Convention. On 17 January 2013 the judge in the High Court dismissed the fathers applications, and his decision was upheld on appeal to the Court of Appeal. The Supreme Court granted the father permission to appeal on the grounds that K had been wrongfully retained in the UK after 29 August 2012 under the Convention and/or that the court should order his return to the US under its inherent jurisdiction. The Supreme Court unanimously allows the appeal by the father and orders the return of K to the US on the basis of the undertakings offered by the father to enable the mother to live in Texas, independently of the father and sharing the care of K between them, pending any application she might make to the Texas court to modify the order relating to Ks residence. The sole judgment is given by Lady Hale. Convention proceedings The fathers application could only succeed if K was habitually resident in the US when the US Court of Appeals overturned the earlier order of the District Court in the mothers favour. [17]. The Convention does not define habitual residence but the UK applies the concept of habitual residence adopted by most member states of the European Union, namely that it is a question of fact and corresponds to the place which reflects some degree of integration by the child in a social and family environment [20]. Parental intention plays a part in establishing or changing a childs residence and this has to be factored in with all the other relevant factors in deciding whether a move from one country to another has a sufficient degree of stability to amount to a change of habitual residence [23]. In this case, the move of the mother with K to the UK in August 2011 was intended by her to be permanent and neither she nor K will have perceived it as temporary, notwithstanding the appeal. K became integrated into a social and family environment in the UK during the year before the appeal succeeded [26]. The judge was entitled to hold that K had become habitually resident in the UK by 29 August 2012 [27]. Thus the father was not entitled to an order for Ks return under the Convention. Inherent jurisdiction Under the Family Law Act 1986 the High Court has power to exercise its inherent jurisdiction in relation to children by virtue of the childs habitual residence and presence here. Before the Convention was adopted this jurisdiction was used to secure the prompt return of children who had been wrongfully removed from their home country. The existence of an order made by a competent foreign court is a relevant factor in deciding whether to exercise it [28]. The judge did not ask himself the correct question, which is whether it is in Ks best interests to remain in the UK, so that the dispute between his parents is decided here, or to return to Texas so that the dispute can be decided there. The Supreme Court is in as good a position as the judge was to answer this as he heard no oral evidence [32]. The approach and procedure of the Texan and English courts are very similar and the fathers evidence is that an application by the mother in Texas would be decided in less than three months [30, 33]. In favour of Ks remaining in the UK is the fact that he has been living here with his mother for over two years, is at school and apparently doing well [34]. In favour of return to the US is the fact that he was born in Texas, has a large extended family in the US, and has spent half his life living there, most recently in the sole care of his father, who has facilitated contact with his mother [35]. The crucial factor is that K is a Texan child who is currently being denied a proper opportunity to develop a relationship with his father and with his country of birth. While the conflicting orders remain in force he has effectively been denied access to the US. It is necessary to restore the synthesis between the two jurisdictions which the mothers actions have distorted [36]. Despite the passage of time there is no reason to consider that K would suffer any significant harm by returning to Texas on the basis proposed by the father and accordingly the Supreme Court allows the appeal and orders Ks return on these terms. This order is to stand even if the mother chooses not to avail herself of the opportunity to return with her son [38].
These appeals raise important and difficult issues in the field of equity and trust law. Both appeals raise issues about the so called rule in Hastings Bass, which is concerned with trustees who make decisions without having given proper consideration to relevant matters which they ought to have taken into account. In addition, the appeal in Pitt raises issues as to the courts jurisdiction to set aside a voluntary disposition on the ground of mistake. In 1985, Mr Mark Futter made two settlements. Initially, both settlements had non resident trustees, until, in 2004, he and Mr Cutbill, both resident in the United Kingdom, were appointed. In 2008, on the advice of solicitors, Mr Futter and Mr Cutbill, in exercise of a power of enlargement, distributed the whole capital of the first settlement to Mr Futter, and, in exercise of a power of advancement, distributed 36,000 from the second settlement to Mr Futters three children in equal shares. In so doing, they overlooked the effect of section 2(4) of the Taxation of Chargeable Gains Act 1992 (TCGA), which resulted in a large capital gains tax liability for Mr Futter, and a modest one for his children. Mr Futter and Mr Cutbill, as trustees of the two settlements, applied to have the deed of enlargement and the deeds of advancement declared void, which Norris J held them to be on the basis of the rule in Hastings Bass. In 1990, Mr Derek Pitt suffered very serious head injuries in a road traffic accident, resulting in his mental incapacity. Mr Pitts claim for damages for his injuries was compromised by a court approved settlement in the sum of 1.2m. Mr Pitts solicitors sought advice from Frankel Topping, a firm of financial advisers. They advised that the damages should be settled in a discretionary settlement. This was done in 1994 by the establishment of the Derek Pitt Special Needs Trust (the SNT). The SNT could have been established without any immediate inheritance tax liability, but it was not. The report from Frankel Topping made no reference whatsoever to inheritance tax. In 2007, Mr Pitt died. His personal representatives, who were also two of the trustees of the SNT, commenced proceedings to have the SNT set aside, which the deputy judge ordered on the basis of the rule in Hastings Bass. However, in so doing, he indicated that, even if there had been a mistake of any sort, it was only a mistake as to the consequences of the transaction, rather than its effect, and so he would not have granted rescission of the SNT. The Revenues appeals against these decisions were heard together in the Court of Appeal. Lloyd LJ (with whom Longmore and Mummery LJJ agreed) (i) allowed the appeals, principally on the ground that the rule in Hastings Bass was not applicable, because the respective trustees acted reasonably in reliance on what they supposed to be competent professional advice, (ii) dismissed Mrs Pitts appeal based on mistake, on the basis that rescission for mistake could only be granted if there was a serious mistake as to nature of a transaction, rather than its consequences, and a mistake as to tax consequences was not a sufficient mistake for the purposes of rescission. The Supreme Court unanimously (i) dismisses the appeal in Futter, and the appeal in Pitt, so far as they turn on the rule in Hastings Bass, (ii) allows the appeal in Pitt on the ground of mistake, and sets aside the SNT. Lord Walker gives the judgment, with which the other Justices agree. The rule in Hastings Bass The rule in Hastings Bass, properly understood, depends on breach of duty in the performance of something that is within the scope of the trustees powers, not in the trustees doing something that they had no power to do at all [43]. The rule is centred on the failure of trustees to perform their decision making function. It is that which founds the courts jurisdiction to intervene if it thinks fit to do so [91]. As a matter of principle there must be a high degree of flexibility in the range of the courts possible responses. To lay down a rigid rule would inhibit the court in seeking the best practical solution in the application of the rule in Hastings Bass in a variety of different factual situations [92]. For the rule in Hastings Bass to apply, the inadequate deliberation on the part of the trustees must be sufficiently serious as to amount to a breach of fiduciary duty. It is generally only a breach of duty on the part of the trustees that entitles the court to intervene. It is not enough to show that the trustees deliberations have fallen short of the highest possible standards, or that the court would, on a surrender of discretion by the trustees, have acted in a different way. Apart from exceptional circumstances (such as an impasse reached by honest and reasonable trustees) only breach of fiduciary duty justifies judicial intervention [73]. However, where trustees have been in breach of duty by exercising a discretion with inadequate deliberation, setting aside their decision may not be the only course open to the court [63]. It would be contrary to principle and authority to impose a form of strict liability on trustees who conscientiously obtain and follow, in making a decision which is within the scope of their powers, apparently competent professional advice which turns out to be wrong [80]. Such a result cannot be achieved by the route of attributing any fault on the part of professional advisers to the trustees as their supposed principals [81]. There have been, and no doubt will be in the future, cases in which small variations in the facts lead to surprisingly different outcomes. That is inevitable in an area where the law has to balance the need to protect beneficiaries against aberrant conduct by trustees (the policy behind the rule in Hastings Bass) with the competing interests of legal certainty, and of not imposing too stringent a test in judging trustees decision making [83]. Rescission on the ground of mistake The true requirement for rescission on the ground of mistake is simply for there to be a causative mistake of sufficient gravity. The test will normally be satisfied only when there is a mistake either as to the legal character or nature of a transaction, or as to some matter of fact or law which is basic to the transaction [122]. Consequences (including tax consequences) are relevant to the gravity of a mistake [132]. A mistake must be distinguished from mere ignorance, inadvertence, and misprediction [104]. Forgetfulness, inadvertence or ignorance is not, as such, a mistake, but it can lead to a false belief or assumption which the law will recognise as a mistake [105]. Mere ignorance, even if causative, is insufficient [108]. However, the distinctions may not be clear on the facts of a particular case [109]. In order to satisfy the test for setting aside a voluntary disposition on the ground of mistake, the gravity of the mistake must be assessed by a close examination of the facts. The injustice of leaving a mistaken disposition uncorrected must be evaluated objectively, but with an intense focus on the facts of the particular case [126]. The court must make an evaluative judgment whether it would be unconscionable, or unjust, to leave the mistake uncorrected, and form a judgment about the justice of the case [128]. Mrs Pitt had an incorrect conscious belief, or made an incorrect tacit assumption, that the proposed SNT had no adverse tax effects [133]. The SNT could have complied with statutory requirements without any artificiality or abuse of statutory relief. It was precisely the sort of trust to which Parliament intended to grant relief [134].
An implied term of the contract between a bank and its customer is that the bank owes a duty of care not to execute the customers order if it knows the order to be dishonestly given, or shuts its eyes to obvious dishonesty, or acts recklessly in failing to make inquiries. This is known as the Quincecare duty of care, following the 1992 case of Barclays Bank plc v Quincecare Ltd. The issue in this appeal is whether a claim against a bank for breach of the Quincecare duty is defeated if the customer is a company, and the fraudulent payment instructions are given by the companys Chairman and sole shareholder who is the dominating influence over the companys affairs. The respondent company (Singularis) is registered in the Cayman Islands. It was set up to manage the personal assets of Mr Maan Al Sanea. He was the sole shareholder, a director and the chairman, president and treasurer. There were six other directors but they did not exercise any influence over the management of Singularis. Sole signing powers over the companys bank accounts rested with Mr Al Sanea. In 2007 the appellant investment bank (Daiwa) provided Singularis with loan financing for the purchase of shares, which were the security for the repayment of the loan. In June 2009 the shares were sold, the loan was repaid, and Daiwa held a cash surplus of US$204m for the account of Singularis. Daiwa complied with instructions from Mr Al Sanea to pay out those funds to third parties. The payments were a misappropriation of Singularis funds and left Singularis unable to meet the demands of its creditors. On 18 September 2009 the Grand Court of the Cayman Islands made a compulsory winding up order and joint liquidators were appointed. On 18 July 2014 Singularis brought a claim against Daiwa for the full amount of the payments on the basis of (1) dishonest assistance in Mr Al Saneas breach of fiduciary duty and (2) breach of the Quincecare duty of care to Singularis by giving effect to the payment instructions. The High Court dismissed the dishonest assistance claim but held there was a clear breach of the Quincecare duty of care to Singularis, with a deduction of 25% by way of contributory negligence. Daiwas appeal against the finding of liability on the negligence claim was dismissed. Daiwa appealed to the Supreme Court. The Supreme Court unanimously dismisses Daiwas appeal and holds that the High Court order should stand. Lady Hale gives the only substantive judgment. Daiwa argued that, as Singularis was effectively a one man company, and Mr Al Sanea its controlling mind and will, his fraud should be attributed to the company, with the result that its Quincecare claim against Daiwa should fail for illegality, lack of causation or because of a countervailing claim for deceit [1]. Lady Hale agrees with the judge that whether or not Mr Al Saneas fraud was attributed to the company, those defences would fail in any event [12]: (i) Illegality The illegality relied on by Daiwa was Mr Al Saneas provision of false documents in relation to the payments and his breach of fiduciary duty towards Singularis. As the judge found, fiduciary duties are intended to protect a company from becoming the victim of the wrongful exercise of power by the companys officers. That purpose would not be enhanced by preventing the companys recovery of the money wrongfully removed from its account. The Quincecare duty strikes a careful balance between the interests of the customer and those of the bank and denying the claim would not enhance the integrity of the law [16]. Denial of the claim would undermine the public interest in requiring banks to play an important part in uncovering financial crime and money laundering [17]. It would also be an unfair and disproportionate response to any wrongdoing on the part of Singularis: the power to make a deduction for contributory negligence enables the court to make a more appropriate adjustment [18]. The judges conclusion on this issue was correct, whether or not the fraud was attributed to the company [21]. (ii) Causation Daiwa argued that if the fraud was attributed to the company, its loss was caused by its own fault and not that of the bank. However, the purpose of the Quincecare duty is to protect the banks customers from harm caused by people for whom the customer is responsible. The fraudulent instruction to Daiwa gave rise to the duty of care which Daiwa breached, thus causing the loss [23]. (iii) Countervailing claim in deceit This was a variant of the causation argument. The judge held that Daiwas breach of duty and not Mr Al Saneas misrepresentations was the cause of Daiwas exposure to the claim for Singularis loss [24]. Attribution Mr Al Saneas fraud should not however be attributed to the company for the purposes of the Quincecare claim. The basic principle was that a properly incorporated company has an identity and legal personality separate from that of its shareholders and directors. The company has to act through the medium of real human beings but the acts of those persons are only treated as the acts and intentions of the company in circumstances specified by its constitution, or the ordinary rules of agency and vicarious liability, or other particular rules of law [28]. As the judge noted, the answer to any question whether to attribute the knowledge of a fraudulent director to the company is always to be found in consideration of the context and purpose for which the attribution is relevant [34]. The context in this case is the breach of Daiwas Quincecare duty of care. To attribute the fraud of a trusted agent of the company to the company would denude the duty of any value in cases where it is most needed and be a retrograde step [35].
These appeals concern a little used provision in article 1F(c) of the Geneva Convention on the Status of Refugees. This excludes from protection any person with respect to whom there are serious reasons for considering thathe has been guilty of acts contrary to the purposes and principles of the United Nations. Both appellants have been refused the grant of refugee status by the respondent on this ground. Al Sirri is a citizen of Egypt who arrived in the UK in 1994. The facts relied on for the refusal of his asylum claim included his possession of and contribution to books connected with Al Qaeda and other proscribed organisations and his alleged involvement in the murder of General Masoud in Afghanistan in 2001. The issue raised by his case is whether all activities defined as terrorism by United Kingdom domestic law are for that reason acts falling within article 1F(c), or whether such activities must constitute a threat to international peace and security. DD is a citizen of Afghanistan who came to the UK in 2007. His claim for asylum was based on his fear of persecution as the brother of the leader of forces allied with the Taliban, who had fought against both the Afghan government and the UN mandated International Security Assistance Force (ISAF). In his case the question is whether armed insurrection against not only the incumbent government but also a UN mandated force supporting that government falls within article 1F(c). In both appeals the issue also arises as to what is meant by serious reasons for considering a person to be guilty of the act in question. The appellants appealed against the respondents refusal to grant asylum. On 18 March 2009 the Court of Appeal set aside the determination of the Asylum and Immigration Tribunal (AIT) in Al Sirris case and remitted it to be determined afresh omitting certain matters on which the respondent had sought to rely. DD was initially successful in his appeals but the Court of Appeal remitted his case for reconsideration by the Upper Tribunal because the AIT had failed to consider DDs individual responsibility and whether he fell within article 1F(c). Both appellants have nonetheless pursued an appeal to the Supreme Court in order to challenge the approach of the Court of Appeal to the interpretation of article 1F(c) in a number of respects. The Supreme Court unanimously dismisses both appeals. Both cases will now be remitted to the relevant tribunal for reconsideration in accordance with the orders of the Court of Appeal. In the case of Al Sirri the guidance given to that tribunal should be in line with the judgment of the Supreme Court. The judgment is given by Lady Hale and Lord Dyson, with whom the other justices agree. The general approach to article 1F(c) Article 1F(c) should be interpreted restrictively and applied with caution. There should be a high threshold defined by the gravity of the act in question, the manner in which the act is organised, its international objectives and its implications for international peace and security. There should be serious reasons for considering that the person concerned bore individual responsibility for acts of that character [16]. International dimension It is clear that the phrase acts contrary to the purposes and principles of the United Nations must have an autonomous meaning and member states are not free to adopt their own definitions. There is as yet no internationally agreed definition of terrorism. It was appropriately cautious therefore to adopt paragraph 17 of the United Nations High Commissioner for Refugees (UNHCR) Guidelines which provided that article 1F(c) was only triggered in extreme circumstances by activity which attacks the very basis of the international communitys co existence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between States, as well as serious and sustained violations of human rights would fall under this category [36 38]. It could be enough if one person plotted in one country to destabilise another. The test was whether the resulting acts had the requisite serious effect upon international peace [40]. Armed insurrection against UN mandated forces DD had been engaged in fighting against ISAF in Afghanistan. ISAF was an armed force under the lead command of individual nations authorised by the UN from 2001, and was distinct from the United Nations Assistance Mission in Afghanistan (UNAMA), which was established in 2002 as a peacekeeping force. Both ISAF and UNAMA had the same objective to maintain peace and security in Afghanistan. DD argued that simple participation in an attack against UN mandated forces did not engage article 1F(c). The Supreme Court agreed that the protection for ISAF against attack was not the same as for peacekeeping forces. This was not however material to the issue under article 1F(c) which was to be judged under the same principle in paragraph 17 of the UNHCR Guidelines quoted above [66]. The fundamental aims and objectives of ISAF accorded with the purposes stated in the UN Charter and DD was seeking to frustrate that purpose [68]. Standard of proof This issue arose in acute form in Al Sirri. Al Sirri had been indicted at the Old Bailey in relation to the murder of General Masoud but the charge was dismissed on the ground that the evidence was as consistent with his innocence as it was with his guilt. Article 1F(c) required that there be serious reasons for considering that the asylum seeker had been guilty of the acts. This had an autonomous meaning, and was not the same as the criminal standard of proof beyond reasonable doubt, or any domestic standard. Serious reasons was stronger than reasonable grounds, strong or clear and credible evidence had to be present and the considered judgment of the decision maker was required. The reality was that there were unlikely to be sufficiently serious reasons for considering an applicant to be guilty unless the decision maker could be satisfied that it was more likely than not that he was. But the task of the decision maker was to apply the words of article 1F(c) in the particular case [75].
Prudential Assurance Company (PAC) is a test claimant in this litigation, which relates to periods running from 19902009 and concerns the tax treatment of UK resident companies that received dividends from portfolio shareholdings (i.e. where the investor holds less than 10% of the voting power in the company) in overseas companies. The key features of the tax system at the relevant time were as follows. On receiving dividends from a UK resident company, a UK resident recipient company was exempt from corporation tax under s.208 of the Income and Corporation Taxes Act 1988 (ICTA), and by s.231(1) ICTA, would receive a tax credit equal to the amount of advance corporation tax (ACT) that the distributing company had paid on the distribution. By s.238(1) ICTA, the dividend received and the tax credit together constituted franked investment income (FII) in the hands of the recipient company, which, by s.241 ICTA, could be used to eliminate or reduce its own liability to ACT on distributions (franked payments) to its own shareholders. In contrast, a UK resident company receiving dividends from an overseas company was subject to corporation tax under schedule D of ICTA (DV tax). Furthermore, it did not receive a tax credit on the dividends, which did not qualify as FII, although it could be entitled to some relief against double taxation under domestic rules, or conventions between the UK and other countries. PAC brought a claim to recover corporation tax and ACT levied contrary to EU law. Before PACs claim was heard, the Court of Justice of the European Union (CJEU) concluded in two decisions that the UKs treatment of overseas dividends was contrary to EU law in that it treated dividends received from overseas companies less favourably than dividends from UK resident companies.1 Following these decisions, the first instance judge gave two judgments in favour of PAC. The Court of Appeal dismissed HMRCs appeal against the judges conclusions on Issues I, II, III and IV below, and allowed in part their appeal on Issue V. It is common ground that PAC is entitled to an appropriate tax credit, and to repayment of any tax unlawfully charged. The current dispute concerns the amount to be awarded, which depends on issues of domestic and EU law. The Supreme Court unanimously dismisses HMRCs appeal on Issue I, allows HMRCs appeal on Issues II and III, and allows PACs cross appeal on Issue V. Lord Mance, Lord Reed and Lord Hodge give a joint judgment, with which Lord Sumption and Lord Carnwath agree. Issue I: does EU law require the tax credit to be set by reference to the overseas tax actually paid, as HMRC submit, or by reference to the foreign nominal tax rate (FNR), as PAC submits? 1 See the decision in Case C 446/04 Test Claimants in the FII Group Litigation and the Reasoned Order in Case C 201/05 Test Claimants in the CFC and Dividend Group Litigation v Revenue and Customs Comrs The Supreme Court dismisses HMRCs appeal on this issue. The CJEU jurisprudence, particularly Case C 35/11 FII ECJ II, clearly establishes that the credit for foreign dividends should be by reference to the FNR, rather than by reference to the actual or effective tax incurred overseas. There is no suggestion in the CJEU case law that any distinction is to be drawn in this respect between portfolio and non portfolio holdings [17 18, 27 28]. As a result of the Courts conclusion on Issue I, Issue IV (i.e. the construction of the domestic provisions if HMRC were to succeed on Issue I) does not arise [34]. Issue II: is PAC entitled to compound interest in respect of tax which was levied in breach of EU law, on the basis that HMRC were unjustly enriched by the opportunity to use the money in question? The Supreme Court allows HMRCs appeal on this issue. In Sempra Metals Ltd v Inland Revenue Comrs [2007] UKHL 34 a majority of the House of Lords held that a claim would lie in unjust enrichment for restitution of compound interest on money which was paid prematurely as the consequence of a mistake [43 55]. A number of developments since that decision indicate that it failed to have regard to tax legislation, created problems in the law of limitation, and caused disruption in public finances [56 67]. Furthermore, it is inconsistent with Investment Trust Companies v Revenue and Customs Comrs [2017] UKSC 29, which explained the requirement for a defective transfer of value by the claimant to the defendant. The recipients possession of money mistakenly paid to him, and his consequent opportunity to use it, is not a distinct transfer of value, additional to the payment of the money. Accordingly, there is no right to interest on the basis of unjust enrichment [68 74]. The Supreme Court therefore departs from the reasoning in Sempra Metals on this issue and rejects PACs claims to compound interest (except insofar as they were conceded by HMRC) [80]. Issue III: does a claim in restitution lie to recover lawful ACT which was set against unlawful mainstream corporation tax (MCT)?2 The Supreme Court allows HMRCs appeal on this issue, answering this question in the negative. When the lawful ACT was set against unlawful MCT, HMRC did not receive unlawfully levied tax, as required for a San Giorgio claim [98].3 If an apparent charge to MCT was unlawful, that charge was a nullity. The lawful ACT could not have been set against a nullity, but would remain available to be otherwise utilised [101 102]. Furthermore, the payment of the ACT did not entail a defective transfer of value which fell to be corrected, as required by Investment Trust Companies (above) [103]. Issue V(a): where ACT from a pool which includes unlawful and lawful ACT is utilised against an unlawful MCT liability, is the unlawful ACT regarded as a pre payment of the unlawful MCT liability or is the ACT so utilised regarded as partly lawful and unlawful pro rata? The Supreme Court allows PACs cross appeal on this issue. Unlawful ACT is treated as set first against unlawful MCT. Further, because unlawful MCT is a nullity, the unlawful ACT is recoverable unless it has been set against a lawful MCT charge [111]. Issue V(b): where domestic FII was carried back to an earlier quarter, is it to be treated as having been applied to relieve the lawful and unlawful ACT pro rata, or only lawful ACT? The Supreme Court allows PACs cross appeal on this issue. Domestic FII which is carried back to an earlier quarter is to be regarded as having been applied to relieve only lawful ACT. HMRCs pro rata approach would deprive a company of the tax credit at the FNR required under EU law [118 122].
Customs duty is usually paid around the time goods are imported. In some situations, Her Majestys Revenue and Customs (HMRC) may issue a post clearance demand to require payment at a later date. This appeal is about the time limits for making such demands under a previous version of the EUs Customs Code, Council Regulation (EEC) No 2913/92 as amended. (The issues in this appeal do not arise under the current version of the Customs Code, Council Regulation (EU) No 952/2013.) FMX imported ten consignments of garlic to the UK in 2003 and 2004. It declared the garlic came from Cambodia and claimed exemption from import duties under the EUs Generalised System of Preferences. In 2007, following an investigation, the European Anti Fraud Office (OLAF) concluded that the garlic was actually from China. If the garlic was Chinese, FMX would be liable for import duties and anti dumping duties totalling 503,577.63. In March 2011, HMRC issued a post clearance demand for 503,577.63 on the basis that the garlic originated in China. FMX argued it was too late to issue demands due to a three year time limit set out in article 221(3) of the old Customs Code. HMRC relied on article 221(4) which provides that, where the debt arises from activity which is liable to give rise to criminal court proceedings, the amount may, under the conditions set out in the provisions in force, be communicated to the debtor after the expiry of the three year period. The First tier Tribunal accepted the false import declarations were liable to give rise to criminal proceedings for the purposes of article 221(4) even though FMX was not involved in the underlying fraud. However, it held that HMRC could not rely on article 221(4) because the UK had no provisions in force extending the three year time limit. The Upper Tribunal disagreed and accepted HMRCs argument. It held that article 221(4) of the old Customs Code automatically displaces the three year time limit in cases involving criminality, even if the relevant member state has not enacted provisions which provide an alternative time limit. The Court of Appeal reinstated the First tier Tribunals decision, considering the Upper Tribunals approach violated the EU law principle of legal certainty and would expose taxpayers to stale demands without any time limit. HMRC appealed to the Supreme Court. The issue before the Supreme Court is (in summary) whether HMRC can rely on article 221(4) to displace the normal three year time limit even though the United Kingdom has not enacted a finite alternative time limit. The Supreme Court unanimously allows the appeal, giving judgment in favour of HMRC. Lord Briggs gives the main judgment. Lady Arden agrees the appeal should be allowed, but for different reasons. Article 221(4) states that HMRC may communicate a customs debt after the expiry of the three year period in article 221(3) if the debt results from an act which was liable to give rise to criminal court proceedings. Its purpose is to preserve the integrity of the criminal process whilst leaving the conditions (including time limits) for communication of a customs debt to each member state. Therefore, the disapplication of the three year time limit is the automatic result of the likelihood of criminal court proceedings. It does not require the selection by a member state of a different time limit [31]; [34] [36]; [51] [52]. The next question is whether this would allow HMRC to issue demands without any time limit, and whether this would breach the fundamental principle of legal certainty in EU law [38]. The majority considers a number of options suggested by the parties, and by the courts below, to mitigate the risk of late demands: (1) The domestic law doctrines of abuse of process and laches do not assist because they concern the conduct of legal proceedings, not the communication of a customs debt [39]. (2) The Limitation Act 1980 cannot be invoked because this would require the Court to disapply section 37(2)(a) of that Act (which provides that the Act does not apply to customs debts) on the basis that it was inconsistent with EU law. There is no real inconsistency with EU law because its requirement for legal certainty is adequately met by the reasonable time principle at (3) below [40] [44]; [46]. (3) There is a strand of EU jurisprudence to the effect that, where the provisions in force appear to allow legal action without any time limit, then the principle of legal certainty requires it to be done within a reasonable time: e.g. Sanders v Commission [2004] ECR II 3315 [18]; [20] [22]. The majority applies this approach and concludes that HMRC was obliged to issue its post clearance demands within a reasonable time [45]. On the facts, HMRC did act within a reasonable time [48]. Since this analysis gives a clear answer to the question how article 221(4) applies where there are no national provisions in force, it is unnecessary to make a reference to the Court of Justice of the European Union [47]. Lady Arden adopts different reasoning for allowing the appeal. She holds that the effect of EU jurisprudence concerning the old Customs Code is that EU law defers to national law and therefore does not require members states to enact a definite time limit [64]; [67]. She expresses the view that domestic public law may impose a requirement for HMRC to act within a reasonable time which may be enforced by judicial review [66] but rejects the majoritys reliance on EU decisions such as Sanders v Commission on the basis that the old Customs Code leaves the question of time limits to individual member states. This may be one of the reasons why article 221(4) has now been revised [67]. Therefore, the communication of the post clearance demand in the present case was not subject to a time limit [68] [69].
This appeal concerns the issue of whether a bribe or secret commission received by an agent is held by that agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or commission. If the bribe or commission is held on trust, the principal has a proprietary claim to it, whereas if the principal merely has a claim for equitable compensation, the claim is not proprietary. The distinction is important for two main reasons. First, if the agent becomes insolvent, a proprietary claim would give the principal priority over the agents unsecured creditors. Secondly, if the principal has a proprietary claim to a bribe or commission, he can trace and follow it in equity. On 22 December 2004, FHR European Ventures LLP purchased the issued share capital of Monte Carlo Grand Hotel SAM from Monte Carlo Grand Hotel Ltd (the Seller) for 211.5m. The purchase was a joint venture between the claimants in these proceedings, for whom FHR was the vehicle. Cedar Capital Partners LLC provided consultancy services to the hotel industry, and it had acted as the claimants agent in negotiating the purchase. Cedar accordingly owed fiduciary duties to the claimants. Cedar had also entered into an Exclusive Brokerage Agreement with the Seller, which provided for the payment to Cedar of a 10m fee following a successful conclusion of the sale and purchase of the issued shared capital of Monte Carlo Grand Hotel SAM. The Seller paid Cedar 10m on or about 7 January 2005. On 23 November 2009 the claimants began these proceedings for recovery of the sum of 10m from Cedar. The main issue at trial was whether Cedar had made proper disclosure to the claimants of the Exclusive Brokerage Agreement. Simon J found against Cedar on that issue, and made a declaration of liability for breach of fiduciary duty on the part of Cedar for having failed to obtain the claimants fully informed consent in respect of the 10m, and ordered Cedar to pay that sum to the claimants. However, he refused to grant the claimants a proprietary remedy in respect of the monies. The claimants successfully appealed to the Court of Appeal, who made a declaration that Cedar received the 10m fee on constructive trust for the claimants absolutely. Cedar now appeals to the Supreme Court on this issue. The Supreme Court unanimously dismisses the appeal. Lord Neuberger gives the judgment of the court. Where an agent acquires a benefit which came to his notice as a result of his fiduciary position, or pursuant to an opportunity which results from his fiduciary position, the general equitable rule (the Rule) is that he is to be treated as having acquired the benefit on behalf of his principal, so it is beneficially owned by the principal. The dispute in this case is the extent to which the Rule applies where the benefit is a bribe or secret commission obtained by an agent in breach of his fiduciary duty to his principal. While it is not possible, as a matter of pure legal authority, to identify any plainly right or plainly wrong answer to the issue of the extent of the Rule, considerations of practicality and principle support the case that a bribe or secret commission accepted by an agent is held on trust for his principal. The only point on this appeal is whether the claimants are entitled to the proprietary remedy in respect of the 10m received by Cedar from the Seller [4]. The following principles are not in doubt: 1) An agent owes a fiduciary duty to his principal because he is someone who has undertaken to act for or on behalf of his principal in a particular matter in circumstances which give rise to a relationship of trust and confidence; 2) As a result, an agent must not make a profit out of his trust, and must not place himself in a position in which his duty and his interest may conflict; and 3) A fiduciary who acts for two principals with potentially conflicting interests without the informed consent of both is in breach of the obligation of undivided loyalty, by putting himself in a position where his duty to one principal may conflict with his duty to the other [5]. Another well established principle, which applies where an agent receives a benefit in breach of his fiduciary duty, is that the agent is obliged to account to the principal for such a benefit, and to pay, in effect, a sum equal to profit by way of equitable compensation [6]. The principals right to seek an account undoubtedly gives him a right in equitable compensation in respect of the bribe or secret commission, which equals the quantum of that bribe or commission. In cases to which the Rule applies, the principal has a proprietary remedy in addition to his personal remedy against the agent, and the principal can elect between the two remedies [7]. What is in dispute is the extent to which the Rule applies where the benefit is a bribe or secret commission obtained by an agent in breach of his fiduciary duty to his principal [9]. The appellant contends that the Rule should not apply to a bribe or secret commission paid to an agent, because it is not a benefit which can properly be said to be the property of the principal [10]. The respondents argue that the Rule does apply to bribes or secret commissions received by an agent, because, in any case where an agent receives a benefit, which is, or results from, a breach the fiduciary duty owed to his principal, the agent holds the benefit on trust for the principal [11]. It is not possible to identify any plainly right or plainly wrong answer to the issue of the extent of the Rule, as a matter of pure legal authority [32]. The respondents formulation of the Rule has the merit of simplicity: any benefit acquired by an agent as a result of his agency and in breach of his fiduciary duty is held on trust for the principal. In contrast, the appellants position is more likely to result in uncertainty [35]. Wider policy considerations also support the respondents case that bribes and secret commissions received by an agent should be treated as the property of his principal, rather than merely giving rise to a claim for equitable compensation. Bribes and secret commissions undermine trust in the commercial world, and one would expect the law to be particularly stringent in relation to a claim against an agent who has received a bribe or secret commission [42]. The argument that the respondents version of the Rule will tend to prejudice the agents unsecured creditors has limited force in the context of a bribe or secret commission. In the first place, the proceeds of a bribe or secret commission consists of property which should not be in the agents estate at all. Secondly, the bribe or commission will very often have reduced the benefit from the relevant transaction which the principal will have obtained, and therefore can fairly be said to be his property. Finally, it is just that a principal whose agent has obtained a bribe or secret commission should be able to trace the proceeds of the bribe or commission into other assets and to follow them into the hands of knowing recipients [43 44]. Considerations of practicality and principle support the case that a bribe or secret commission accepted by an agent is held on trust for his principal. While the position is less clear when one examines the decided cases, taken as a whole the authorities support the respondents case [46]. The cases, with the exception of Tyrrell v Bank of London (1862) 10 HL Cas 26, are consistently in favour of bribes or secret commissions being held on trust for the principal or other beneficiary until the decision in Metropolitan Bank v Heiron (1880) 5 Ex D 319, which was then followed in Lister & Co v Stubbs (1890) 45 Ch D 1. The domestic cases subsequent to Lister are explicable on the basis that the issue was either conceded, or decided on the basis that Lister was binding. The decision in Tyrrell should not stand in the way of the conclusion that the law took a wrong turn in Heiron and Lister, and that those decisions, and any subsequent decisions in so far as they relied on or followed Heiron and Lister, should be treated as overruled [47 50].
This case concerns the scope of the obligation of local authorities under s.21(1)(a) of the National Assistance Act 1948 to provide accommodation to individuals who, by reason of age, illness, disability or any other circumstance, are in need of care and attention which is not otherwise available to them. According to s.21(1A) of that Act, accommodation may not be provided under s.21(1)(a) to persons subject to immigration control if their need for care and attention has arisen solely because they are destitute or because of the physical effects, or anticipated physical effects, of destitution. SL is a failed asylum seeker from Iran. He arrived in the UK in 2006 and became homeless in October 2009. He was admitted to a psychiatric hospital following an attempted suicide in December 2009. SL was diagnosed as suffering from depression and post traumatic stress disorder. Upon discharge from hospital in April 2010, SL was assessed as needing regular sessions with mental health professionals and counselling groups, and also weekly meetings with a social worker. Westminster City Council says that it has no duty under s.21(1)(a) of the 1948 Act to provide SL with accommodation. It argues that he is not in need of care and attention for the purposes of that provision because his weekly meetings with a social worker are only a means of monitoring what, if any, care and attention he may need in the future. The council also argues that any assistance that SL may need is, in any event, otherwise available for the purposes of s.21(1)(a) because it is available to him regardless of his accommodation arrangements. The National Asylum Support Service (NASS) accepted that, if s.21(1)(a) was not applicable in this case, it would have an obligation to provide SL with accommodation. SL brought a claim for judicial review of the councils refusal to provide him with accommodation under s.21(1)(a). The High Court dismissed the claim, but the Court of Appeal reversed that decision. The council has accommodated SL pending the resolution of these proceedings. SL has since been granted indefinite leave to remain, which entitles him to a wider range of state benefits. However, the appeal was heard because it raises important questions of principle regarding s.21(1)(a). The Supreme Court allows the appeal, concluding that the Council does not owe a duty to provide SL with accommodation under s.21(1)(a) of the 1948 Act. Lord Carnwath gives the only judgment. There are three cumulative conditions which must be satisfied before s.21(1)(a) of the 1948 Act is applicable and accommodation must be provided thereunder: (i) the person in question must be in need of care and attention; (ii) the need must arise by reason of age, illness, disability or other circumstances; and (iii) the care and attention which is needed must not be available otherwise than by the provision of accommodation under s.21. The Council was reasonably entitled to take the view that the first and third of those conditions are not satisfied on the facts of this case [7, 39]. The support available from NASS is intended to be a last resort. In determining whether the conditions in s.21(1)(a) are satisfied, a local authority must disregard the support which might hypothetically be available from NASS [9]. The phrase care and attention means looking after, i.e. doing something for a person which he cannot or should not be expected to do for himself. It does not, however, cover all forms of social care and practical assistance. Care and attention for the purposes of s.21(1)(a) does not include the mere provision of physical things, even things as important as food and accommodation. The meaning of the words care and attention must take some colour from its association with the duty to provide residential accommodation. It is not confined to care and attention that can only be provided at specialised residential accommodation. However, something well beyond merely monitoring an individual is needed. The council was, therefore, entitled to conclude that the services it provided to SL do not qualify as care and attention [41 44]. The words not otherwise available in s.21(1)(a) govern care and attention not accommodation. The council was entitled to conclude that the services provided to SL were available otherwise than by the provision of accommodation under s.21 because they were entirely independent of SLs accommodation arrangements; the assistance could have been provided to SL in the same place and in the same way whether or not he had accommodation of any particular type, or at all. The Court of Appeal was wrong to read the word available in s.21(1)(a) as meaning not merely available in fact but also available in a manner that is reasonably practicable and efficacious. The acceptance of such a loose and indirect link with the provision of accommodation is not justified by the wording of s.21(1)(a). Whether the criterion of not otherwise available is satisfied in any particular case is best left to the judgment and common sense of the local authority concerned [8, 45 49].
These appeals raise questions about the availability of cross border relief and the method of quantifying such relief. For the purposes of corporation tax, Marks and Spencer plc (M&S) claim group relief in respect of losses sustained by two of their subsidiaries: Marks and Spencer (Deutschland) GmbH (MSD), which was resident in Germany, and Marks & Spencer (Belgium) NV (MSB), which was resident in Belgium. M&S began to expand its business into other countries in 1975. By the end of the 1990s it had sales outlets in more than 34 countries, with a network of subsidiaries and franchises. But by that date it had already begun to incur losses, and in March 2001 decided to withdraw from its continental European activity. It was able to sell its French and Spanish subsidiaries to third parties, but no purchasers were found for MSD or MSB. MSD ceased trading in August 2001 and was dissolved following liquidation on 14 December 2007. MSB ceased trading on 22 December 2001 and was dissolved following liquidation on 27 December 2007. The claims were originally made and refused by HMRC over ten years ago. M&Ss basic contention underlying all these claims was that the provisions in UK legislation were contrary to Article 43 EC (now Article 49 TFEU) on the freedom of establishment and were therefore unlawful. The ECJ gave a preliminary ruling holding that Article 43 EC did not preclude provisions of a member state which prevented a resident parent company from claiming group relief for losses incurred by a subsidiary established in another member state. This case was last before the Supreme Court on 22 May 2013 when Lord Hope gave judgment on the first of five issues. The Court held that that the correct date to identify the circumstances in which it would be unlawful to preclude cross border relief for losses (the no possibilities test) was the date of the claim, not the end of the accounting period. As a consequence, one of the issues (issue 3) did not need to be answered. That left three issues: Issue 2: Can sequential/cumulative claims be made by M&S for the same losses in respect of the same accounting period? Issue 4: Does the principle of effectiveness require M&S to be allowed to make fresh pay and file claims now that the ECJ has identified the circumstances in which losses may be transferred cross border, when at the time M&S made those claims, there was no means of foreseeing the test established by the court? Issue 5: What is the correct method of calculating the losses available to be transferred? The courts below did not analyse the issues in quite that order, but they held, in essence, that the answer to issue two was yes: M&S were in principle entitled to make sequential/consequential claims in respect of the same accounting period. As to issue 4, part of which was treated as part of issue 2, they held that both the principle of effectiveness and the principle of certainty did allow M&S to make fresh pay and file claims provided that they were not time barred. However they held that such claims were time barred. As to issue 5, they preferred the method of calculation advanced by M&S to that of the HMRC. M&S appealed to this court on the time bar point, whereas the HMRC appealed on the issues on which they had lost. The Supreme Court unanimously dismisses all the appeals. Lord Clarke gives the lead judgment, with which Lord Neuberger, Lord Mance, Lord Reed and Lord Carnwath agree. As a matter of domestic law, there is no support in the provisions in Part VIII of Schedule 18 to the Finance Act to support the conclusion that only one claim can be made. On the contrary, the provisions contemplate that successive claims can be made [24]. As a matter of construction of the relevant provisions, without any manipulation made necessary by the fact that the draftsman did not have cross border relief in mind, there is no support for the conclusion that only one claim can be made [27]. The legislation must also be construed so as to ensure that European Community law rights are effective in the sense that they are not practically impossible or excessively difficult to exercise and so as to ensure that the statutory code provides an effective remedy [28]. The taxpayer is entitled to advance claims for cross border relief provided that it is in time to do so [36]. The principle of effectiveness is concerned with giving effect to European Community rights. It is concerned with ensuring that such rights as a person has under Community law are recognised and given effect to in a member state which has not properly reflected such rights in its own domestic law. It was no part of that principle that a person should be given the opportunity to bring about a new state of affairs giving rise to the existence of new rights which he does not already have, in order to enforce them under Community law when they would be unenforceable under domestic law [45]. The relevant jurisprudence establishes that a member state may impose a reasonable time limit in the interests of legal certainty [46]. The relevant pay and file claims are now time barred [48]. The correct method for calculating the losses available to be surrendered is the one contended for by M&S [49]. It begins by applying the local rules to determine whether there is a loss in a particular period and, if so, the amount of the loss that remained unutilised. The unutilised loss calculated by reference to the local rules is then converted to UK principles [50]. It does not give the parent company greater relief than would have been available had its subsidiary been resident in the same state as the parent, whether in Germany or in the UK [52].
The appeal concerns the rights of the owner of a time chartered ship to payment for use of the ship and fuel by the charterer to discharge cargo after the ship has been lawfully withdrawn for non payment of hire. The appellant is the owner of the ship MT Kos. The ship was time chartered to the respondent on 2 June 2006 for 36 months. The charterparty contained a standard form of withdrawal clause entitling the owner to withdraw the vessel if the hire was not paid when due without prejudice to any claim owners may otherwise have on charterers under this contract. On 31 May 2008 the respondent failed to make the required payment and the appellant withdrew the ship on 2 June 2008. At the time of the withdrawal the MT Kos was at Angra dos Reis in Brazil and was in the process of being loaded with cargo. Over the course of 2 and 3 June, the respondent unsuccessfully sought to persuade the appellant to cancel the withdrawal. The respondent then made arrangements to unload the cargo which was already on the ship, which took until 5 June. The ship was therefore detained at Angra dos Reis for 2.64 days. Had the cargo been unloaded immediately upon withdrawal, it would have been detained for one day. The appellant claimed from the respondent the cost of the service of the ship for the 2.64 days, including bunkers (fuel) consumed in the same period, on a number of different bases: (i) the express terms of an indemnity given in clause 13 of the charterparty (ii) under the terms of a new contract made after the withdrawal (iii) on the ground of unjust enrichment, and (iv) under the law of bailment. The High Court granted the claim on the last basis alone. The Court of Appeal allowed the respondents appeal, rejecting all bases for the claim except for the recovery of the value of bunkers consumed in actually discharging the cargo. The Supreme Court unanimously allows the appeal and restores the order of Andrew Smith J in the High Court. Lord Sumption (with whom Lord Phillips, Lord Walker and Lord Clarke agree) gives the main judgment, concluding that the express indemnity in the charterparty applied on the facts of this case. Lord Mance would not have allowed the appeal on this basis but all five justices agreed with Andrew Smith J that the claim could in any event succeed under the law of bailment. The charterparty The respondent had argued that any delay or loss arising from the need to discharge the cargo was the result of the choice exercised by the appellant to withdraw. This was however morally and legally neutral [7]. Clause 13 of the contract, an employment and indemnity clause that is found in most modern forms of time charter, provided that the charterers indemnified the owners against all consequences or liabilities that arose from the master complying with the charterers or their agents orders [8]. The clause was very wide, but not unlimited [10]. It had to be read in the context of the owners obligations under the charterparty as a whole [11], and was sensitive to the legal context in which it arose. The real question was whether the respondents order to load the cargo was an effective cause (not necessarily the only one) of the appellant having to bear a risk or cost which he had not contractually agreed to bear [12] [62]. Here, the detention of the vessel in the appellants own time and at their own expense after the charter had come to an end was not an ordinary incident of the chartered service nor was it a risk that the appellant had assumed under the contract. It therefore fell within the indemnity [16]. The appellant was entitled to the market rate of hire for 2.64 days and the value of the bunkers consumed [17]. Lord Mance would not have allowed the appeal on this ground. He considered that the search was one for the proximate or determining cause [37] and that the loss suffered by the appellant was not caused by compliance with the respondents instructions but instead by the fact that the charter was at an end [51]. The fact that no cargo would have been on board but for the instructions was not the test of the proximate or effective cause. Subsequent events had superseded those instructions and rendered them a matter of history [51]. To apply the indemnity was unnecessary, the general contractual context supported a conclusion that the indemnity clause was inapt to apply [52] and its application would, in his view, open the door to uncertainty [55]. Bailment The appellant was also entitled to succeed at common law as the non contractual bailee of the cargo after the withdrawal of the vessel. The principles set out in the The Winson (China Pacific SA v Food Corpn of India) [1982] AC 939 applied: the cargo was bailed to the appellant under a contract which terminated whilst the cargo was still in its possession and the appellant could not escape the continuing duty to take reasonable care of the cargo until arrangements were made to discharge it [28]. As bailee, the appellant would be entitled to the bunkers and the opportunity cost of the ship remaining in Angra dos Reis [28]. Other bases for the claim The argument that a new contract had been made after the withdrawal turned entirely on the facts of the case and the courts below had correctly held that no such contract had been made [5]. The argument based on unjust enrichment raised larger issues which the Supreme Court decided not to address in the context of this dispute [31].
This appeal concerns the principles to be applied when a court, in considering the financial arrangements following the breakdown of a marriage, has to decide what weight should be given to an agreement between the husband and wife made before the marriage (an ante nuptial agreement, often referred to as a pre nuptial agreement). The appellant and respondent were married in London in 1998. The husband is French and the wife German. They entered into an ante nuptial agreement before a notary in Germany three months before the marriage at the instigation of the wife, to whom a further portion of her familys considerable wealth would be transferred if an agreement was signed. The agreement was subject to German law and provided that neither party was to acquire any benefit from the property of the other during the marriage or on its termination. The husband, who at the time worked as a banker, declined the opportunity to take independent advice on the agreement. The parties separated in October 2006 after 8 years of marriage. They have two daughters, born in 1999 and 2002. By this time the husband had left banking and had embarked on research studies at Oxford. The husband applied to the court for financial relief. In the High Court he was granted a sum in excess of 5.5m which would afford him an annual income of 100,000 for life and allow him to buy a home in London where his children could visit him. The judge took into account the existence of the ante nuptial agreement but reduced the weight she attached to it because of the circumstances in which it was signed. The wife appealed successfully to the Court of Appeal, which held that in this case the agreement should have been given decisive weight. The husband should only be granted provision for his role as the father of the two children and not for his own long term needs. The husband appealed to the Supreme Court. The Supreme Court (by a majority of 8 to 1) dismisses the appeal. The substantive judgment is given by Lord Phillips (President), with an additional judgment from Lord Mance. Lady Hale gives a dissenting judgment. Lord Phillips observed that it used to be contrary to public policy for a couple who were married or about to be married to make an agreement which provided for the contingency that they were about to separate, on the basis that this might encourage them to do so, and the court paid no regard to them [31]. After 1957 separation agreements were given considerable weight, as increasingly were post nuptial agreements, in marked distinction to the treatment of ante nuptial agreements [42]. But the reasons for sweeping away the old rule for separation agreements applied equally to ante nuptial agreements [52]. There was not necessarily a material difference between the two [57] and the court was entitled to overrule the agreement in either case [63]. The question was how the court should approach the task of deciding what weight should be given to an ante nuptial agreement. Three issues arose in relation to the agreement in this case for the court to consider: (i) Were there circumstances attending the making of the agreement which should detract from the weight which should be accorded to it? Parties must enter into an ante nuptial agreement voluntarily, without undue pressure and be informed of its implications. The question is whether there is any material lack of disclosure, information or advice [69]. (ii) Did the foreign elements of the case enhance the weight that should be accorded to the agreement? In 1998, when this agreement was signed, the fact that it was binding under German law was relevant to the question of whether the parties intended the agreement to be effective, at a time when it would not have been recognised in the English courts. After this judgment it will be natural to infer that parties entering into agreements governed by English law will intend that effect be given to them [74] (iii) Did the circumstances prevailing at the time the court made its order make it fair or just to depart from the agreement? An ante nuptial agreement may make provisions that conflict with what a court would otherwise consider to be fair. The principle, however, to be applied is that a court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement [75]. A nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children of the family [77], but respect should be given to individual autonomy [78] and to the reasonable desire to make provision for existing property [79]. In the right case an ante nuptial agreement can have decisive or compelling weight [83]. Applying these principles to the facts, the Court of Appeal was correct to conclude that there were no factors which rendered it unfair to hold the husband to the agreement. He is extremely able and his own needs will in large measure be indirectly met from the generous relief given to cater for the needs of his two daughters until the younger reaches the age of 22 [120]. There is no compensation factor as the husbands decision to abandon his career in the city was not motivated by the demands of his family but reflected his own preference [121]. Fairness did not entitle him to a portion of his wifes wealth, received from her family independently of the marriage, when he had agreed he should not be so entitled when he married her [122]. Lord Mance agreed with the conclusion of the majority but, in common with Lady Hale, expressed no view on the binding or other nature of an ante nuptial agreement, which did not arise for decision. Lady Hale (dissenting) stated that modern marriage still possesses an irreducible minimum, which includes a couples mutual duty to support one another and their children. The issue in this case was how far individuals should be free to rewrite that essential feature of the marital relationship as they chose [132]. The law of marital agreements is in a mess and ripe for systematic review and reform. The Law Commission has a current project to examine the status and enforceability of agreements and can then make detailed proposals for legislative reform that Parliament can consider. That is the democratic way of achieving comprehensive and principled reform [135]. The facts of this particular case obscure the fact that the object of an ante nuptial agreement is to deny the economically weaker spouse (usually the wife) the provision to which she would otherwise be entitled [137]. The points on which Lady Hale dissents from the majority are summarised at [138] and include the upholding of the Court of Appeals decision as to the actual outcome of the case. In her view, there remain important policy considerations justifying a different approach for agreements made before and after a marriage [162]. The test to be applied by the court when considering an ante nuptial agreement should not introduce a presumption or starting point in favour of holding the parties to it: the guiding principle should be fairness in the light of the actual and foreseeable circumstances at the time when the court comes to make its order [169]. In this case the Court of Appeal appeared wrongly to treat the parties as if they had never married but only cohabited, and failed to recognise that a parent often expects to continue to be a resource for his or her grown up children [192]. Lady Hale would have varied the judges award to give greater weight to the agreement but would have granted the husband his English home for life [194].
In 2006 the appellant and his two co accused were convicted of the racially aggravated abduction and murder of a 15 year old boy. Upon being remanded in custody, from 7 October 2005 the appellant was removed from association with other prisoners and placed in solitary confinement (segregation). It was considered that the appellant and his co accused were liable to attack by other prisoners, and there were persistent fears for their safety if accommodated in mainstream conditions. Apart from a period immediately prior to and during his trial, the appellant remained in continuous segregation until 13 August 2010. Altogether he spent 56 months in segregation. The appellant was segregated pursuant to the Prisons and Young Offenders Institution (Scotland) Rules 1994 and the subsequent Prisons and Young Offenders Institution (Scotland) Rules 2006, the relevant provisions of which are identical. Rule 94 of the 2006 Rules permit a Governor to authorise segregation for up to 72 hours for the purpose of maintaining good order or discipline, protecting the interests of any prisoner, or ensuring the safety of other persons. Segregation beyond 72 hours for a further month must be authorised by the Scottish Ministers, prior to the expiry of the said period of 72 hours, on the application of a Governor. The Scottish Ministers may renew the authority for further monthly periods, again on the application of a Governor. The appellant sought orders declaring that certain periods of his segregation were in breach of the relevant Prison Rules, and that his segregation violated article 3 of the European Convention on Human Rights, the prohibition against torture, inhuman and degrading treatment, and article 8, the right to respect for private life. His judicial review challenging the lawfulness of his segregation was refused by both the Outer House and the Inner House of the Court of Session. The Supreme Court unanimously allows the appeal, granting a declarator (1) that the appellant was segregated unlawfully during three separate periods totalling 14 months; and (2) that his article 8 rights were violated. Lord Reed gives the only judgment with which Lord Neuberger, Lady Hale, Lord Sumption and Lord Hodge agree. There are three issues in the appeal: (1) whether the authorities admitted failure to comply with the time limits imposed by the Prison Rules invalidated the continued segregation; (2) whether the appellants segregation breached article 3 of the Convention; and (3) whether his segregation violated article 8. On the first issue, rule 94(5) means that segregation should not continue beyond the initial 72 hours unless the Ministers authority has been granted before the 72 hours have expired [15]. Rule 94(6) makes it clear that the Ministers authority takes effect from the expiry of the 72 hour period [16]. A late authority by the Ministers, granted after the expiry of the 72 hour period, cannot have effect [17]. This is consistent with the purpose of the legislation: to provide a safeguard for the protection of the prisoner, by ensuring that the need for segregation is reviewed within a short time by officials external to the prison and that segregation is maintained only for so long as is necessary [18]. On the three occasions when authority for the appellants segregation was granted late, that authority was invalid, and incapable of renewal. Consequently, the appellants segregation for periods totalling about 14 months lacked authorisation under the Prison Rules [28]. It is however accepted that the appellant was not prejudiced as a result [29]. On the second issue, the conditions of segregation and the measures imposed were not in themselves in breach of article 3 [32 33]. The appellant was placed in segregation in the interests of his own safety, and there was a genuine and reasonable concern that he was at risk of serious injury or worse [34]. The appellant did not suffer any severe or permanent injury to his health. The isolation he experienced was partial and relative. Whilst the duration of his segregation was undesirable, and the conditions could have been improved, the appellants segregation did not attain the minimum level of severity required for a violation of article 3 [36 37]. On the third issue, the Ministers accepted that segregation is an interference with the right to respect for private life under article 8(1). It must therefore pursue a legitimate aim, be in accordance with the law, and be a proportionate means of achieving the aim pursued [39]. The segregation pursued a legitimate aim, namely the protection of the appellants safety [40]. However, during the periods in which the appellant was segregated without valid authorisation under the Prison Rules, his segregation was not in accordance with the law [41]. Additionally, some of the decisions taken by Governors to segregate the appellant or to apply for Ministers authorisation for his continued segregation were not taken in the exercise of their own independent judgment. Instead, they proceeded on the basis that the decision had already been made by the Executive Committee for the Management of Difficult Prisoners (ECMDP), a body which was not entrusted with the power to make such a decision. This invalidated subsequent decision making by the Ministers, as their power of decision was predicated on a valid application being made to them. This breach of domestic law also results in a violation of article 8, although it does not appear to have prejudiced the appellant, as when Governors did carry out an independent assessment, they reached the conclusion that segregation was necessary to protect the appellants safety [66 73]. In relation to proportionality, the seriousness of the risk of harm required to justify segregation becomes greater as time goes by, and increased scrutiny will be applied as to whether segregation is the only means of addressing the risk [76]. Other potential accommodation options, providing reduced association and greater supervision for prisoners who remain at risk of harm, were not available in Scotland during the period in question. No consideration was given to the possibility of transferring the appellant to a prison elsewhere in the UK. No meaningful plan was put in place until the appellant had been in segregation for 55 months. Accordingly, the Scottish Ministers have failed to establish that the appellants segregation for the entire period was proportionate [83 86]. In the circumstances, just satisfaction can be afforded by making a declaratory order [89].
This is a reference by the Attorney General for England and Wales under section 112(1) of the Government of Wales Act 2006 (GWA 2006). It concerns the question of whether the Agricultural Sector (Wales) Bill 2013 is within the legislative competence of the National Assembly for Wales [1]. The Bill was passed on 17 July 2013 primarily to establish a scheme for the regulation of agricultural wages in Wales. Until 2013, the Agricultural Wages Act 1948 provided a regime for regulating agricultural wages for England and Wales under an Agricultural Advisory Panel for Wales, which was abolished by the UK Parliament under the Enterprise and Regulatory Reform Act 2013. [2]. The Welsh Government wished to retain a regime for the regulation of agricultural wages in Wales. The Welsh Assembly seeks to implement such a regime through the creation of a new Agricultural Wages Panel. It considers that it has competence to do so, relying on section 108 of and Schedule 7 to the GWA 2006. Those provisions give the Assembly competence to make legislation which relates to: Agriculture. Horticulture. Forestry. Fisheries and fishing. Animal Health and welfare. Plant health. Plant varieties and seeds. Rural development. [3] The Attorney General disagrees, submitting that, in reality, the Bill does not relate to agriculture but to employment and industrial relations, which have not been devolved to the Welsh Assembly [4]. In a judgment delivered by Lord Reed and Lord Thomas, the court unanimously concludes that the Bill falls within the competence of the Welsh Assembly. Lord Reed and Lord Thomas explain the courts decision by reference to the legislative background to the regulation of agricultural wages in the UK, and the operation of the 1948 Act in relation to Wales [8 17]. They also draw upon the development of devolution to Wales over three phases, beginning with the executive devolution secured under the under the Government of Wales Act 1998 [19 23] and culminating in the power of the Assembly to make Acts pursuant to Part 4 of, and Schedule 7 to, the GWA 2006 under a conferred powers model of devolution [28 33]. The Justices reiterate the following principles to be adopted in interpreting the GWA 2006 [5 6]: the question whether a provision is outside the competence of the Assembly must be determined according to the rules in section 108 and Schedule 7; the description of the GWA 2006 as an Act of great constitutional significance cannot be taken, in itself, to be a guide to its interpretation. The statute must be interpreted in the same way as any other statute; and if help is needed to what the words mean, it is proper to have regard to the purpose that lay behind the GWA 2006, namely to achieve a constitutional settlement. In interpreting section 108 and Part 1 of Schedule 7, the court explains that it cannot consider inter governmental correspondence that preceded the GWA 2006 but was never made public or disclosed to Parliament [35 39]. The fact that a power was not conferred during the first or second phases of devolution does not assist, as each of the three phases significantly increased the legislative competence of the Assembly [40 43]. The sole question is therefore whether the Bill relates to Agriculture [46]. Significantly, no one contended that any of the exceptions specified in Schedule 7, or any limitation on competence set out in any of the other provisions of the GWA 2006, applied [45]. The first issue is the meaning of Agriculture. It is clear that agriculture cannot be intended to refer solely to the cultivation of the soil or the rearing of livestock, but should be understood in a broader sense as designating the industry or economic activity of agriculture in all its aspects, including the business and other constituent elements of that industry, as it is to that broader subject matter that legislative activity is directed [47 49]. The second issue is whether the Bill relates to agriculture. As the court has previously held, relates to indicates more than a loose or consequential connection. The issue as to whether a provision relates to a subject is to be determined under section 108(7) by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances [50]. It appears from the consultation process that led to the Bill that its purpose was to regulate agricultural wages so that the agricultural industry in Wales would be supported and protected [51 52]. The legal and practical effects of the Bill are consistent with that purpose [53]. Its purpose and effect are to establish a statutory regime for the regulation of agricultural wages and other terms and conditions of employment within the agricultural industry in Wales. The purpose and effect of such a regime are to operate on the economic activity of agriculture by promoting and protecting the agricultural industry in Wales. Like the 1948 Act, the Bill is aptly classified as relating to agriculture [54]. Employment and industrial relations are not specified as exceptions. Although certain aspects of employment and remuneration are specified as exceptions, that suggests that there was no intention to create a more general limitation on legislative competence [59; 68]. Provided that the Bill fairly and realistically satisfies the test set out in section 108(4) and (7) and is not within an exception, it does not matter whether it might also be capable of being classified as relating to a subject which has not been devolved, such as employment and industrial relations. The legislation does not require that a provision should only be capable of being characterised as relating to a devolved subject [67]. The application of the clear test in section 108 provides for a scheme that is coherent, stable and workable [68].
Sark is an island in the Channel Islands of about 600 inhabitants. In this appeal, Sir David and Sir Frederick Barclay sought to challenge new constitutional arrangements in Sark contained in the Reform (Sark) Law 2008. Under the Reform Law, the electorate (of about 500 people) vote for 28 members of Sarks legislature, which is called the Chief Pleas. But there are two members of the Chief Pleas who are not elected. The first is the Seigneur (or Lord) of Sark, who holds a title first granted by Queen Elizabeth I in the sixteenth century. Although he may speak, the Seigneur cannot vote at any meeting of the Chief Pleas, but he does have a power temporarily to veto Ordinances of the Chief Pleas. The second is the Seneschal (or Steward), whose office was created by the Crown in the seventeenth century. The Seneschal convenes meetings of and presides over the Chief Pleas, but has no power to speak in debates or to vote. Historically, both the Seigneur and the Seneschal were able to vote in the Chief Pleas. The Barclay brothers argued that the position of the Seigneur and the Seneschal, under the new arrangements, was incompatible with Article 3 of the First Protocol to the European Convention on Human Rights, which protects the free expression of the opinion of the people in the choice of the legislature. They argued that the effect of that Article is that all members of a single chamber legislature must be elected members. An appeal was also brought by Dr Tomas Slivnik, who wanted to stand for election to the Chief Pleas. He argued that the Reform Law discriminated against him contrary to the European Convention. He said that this was because, even though he had a right to vote as a resident, he nevertheless did not have a right to stand for election as he was a citizen of Slovenia. The Supreme Court held that the unelected position of the Seigneur and the Seneschal was not incompatible with Article 3 of the First Protocol to the European Convention on Human Rights. It held also that the restriction on Dr Slivniks standing for election complied with his Convention rights. The appeals were unanimously dismissed. The leading judgment was given by Lord Collins, with whom the other Justices (Lords Hope, Scott, Brown and Neuberger) agreed. [ As to whether the position of the Seneschal and the Seigneur in the Chief Pleas of Sark, as provided for in the Reform Law, was a breach of Article 3 of the First Protocol to the European Convention on Human Rights: There was no invariable rule in Article 3 of the First Protocol that all members of a legislature had to be elected irrespective of their powers and irrespective of the circumstances [67], [70]. Until 1922 the composition of the Chief Pleas reflected the feudal system in Sark and between 1922 and 2008 the feudal Tenants dominated the Chief Pleas. Against that background, and in light generally of the constitutional history and the political factors relevant to Sark, the position of the Seigneur and the Seneschal was well within the margin of appreciation given to Contracting States to the Convention under Article 3 of the First Protocol. The free expression of the opinion of the people of Sark was not impeded by their membership of the Chief Pleas [71] [72], [74]. The Seigneurs power temporarily to veto legislation was proportionate and consistent with Article 3 of the First Protocol. In reaching that conclusion, it was legitimate to take account of the fact that the power had not been used in modern times, and that the Seigneur had indicated it would only be used in very limited circumstances [78]. The Seneschals powers were those which any presiding officer would be given or would need. His position could not realistically be said to impair the essence of the rights under Article 3 of the First Protocol [83]. As to whether the prohibition imposed by the Reform Law on persons who are aliens from standing for election to the Chief Pleas of Sark is a breach of the right under Article 3 of the First Protocol, read alone and / or in conjunction with Article 14 of the Convention: Under the European Convention, as reflected in the decisions of the Strasbourg Court and in the practice of the members of the Council of Europe, it is citizens, and not non resident aliens, who have the right to vote and stand for election. There may be some exceptions, but the general rule is clear [93]. Article 3 of the First Protocol does not require a justification for qualifications which are stricter for standing for election than for voting. Historical and political factors have determined the definition of alien in UK law. Eligibility for standing for election in Sark was limited to those with a genuine connection with Sark in the form of residence or ownership of property. It was clear that in the light of those factors and the breadth of the margin of appreciation, the exclusion of aliens from eligibility to stand for election was justifiable [95].
The issues in these appeals relate to the right to a fair trial. Alison McGarrigle had a son, Robert, by her former husband. Robert was subject to a residential supervision order requiring him to live with his father during the week but permitted him to visit his mother on Saturdays. On 14 June 1997 Robert did not return to his fathers address and instead he and his mother went to live with the appellants in a house in Largs. A drinking session took place there on or about the 20 June 1997 at which a number of people including the appellants, Robert and Mrs McGarrigle were present. The next morning she was gone and was never seen by Robert again. She was reported to police as missing on 16 February 1998. The investigation continued but in the meantime, on 17 June 1998, the appellants were convicted of sexual offences including offences against Robert McGarrigle and were sentenced to 6 and 8 years imprisonment respectively. Whilst serving their sentences the appellants were taken by police for questioning on suspicion of conspiracy to murder Alison McGarrigle. They were asked by the officers whether they were involved in her murder, but they both remained silent. Owing to a lack of evidence at that time, proceedings were not commenced against the pair. The appellants were eventually charged in 2005 for the murder of Mrs McGarrigle and remanded in custody. On 10 June 2010 the appellants were found guilty in the High Court of Justiciary at Glasgow of the murder of Mrs Allison McGarrigle between 21 June and 1 September 1997 and of a subsequent attempt to defeat the ends of justice by disposing of her body in the sea. In a separate trial held immediately before, the appellants were found guilty of a series of sexual offences relating to children. Both trials took place in front of the same judge, Lord Pentland, but with different juries. After the verdict in the first trial the Advocate Depute moved for sentence and handed the judge a list of the appellants previous convictions. The judge reserved sentencing for the sexual offences until after the trial for murder was complete. At the time of informing the appellants of this, the judge referred to their records and made comments to them that they were evil, determined, manipulative and predatory paedophiles of the worst sort. The two issues for the Supreme Court were: (1) when the appellants were charged for the purposes of their right to a trial within a reasonable time in terms of article 6(1) of the Convention (the appellants argued that time started to run when they were first questioned in 1998 and therefore there had been a breach of their right); and (2) whether the comments and conduct of the trial judge were such as to breach the appellants right to a fair trial by an impartial tribunal in terms of article 6(1) of the Convention and, if so, whether the act of the Lord Advocate in persevering with the trial was incompatible with the appellants rights under article 6(1). Both issues arose from the refusal of the Appeal Court to grant leave for the relevant grounds of appeal to be argued in the appeal in Scotland. The Appeal Court did however grant permission to appeal its refusal to the Supreme Court. The Supreme Court held that it had jurisdiction to consider the issues on the basis that they were compatibility issues in terms of the Criminal Procedure (Scotland) Act 1995 (as amended by the Scotland Act 2012), issue (1) being an appeal against a decision of the Appeal Court and issue (2) being a reference from the Appeal Court. The court determines the two compatibility issues as follows: (1) that the date when the reasonable time began for the purposes of the appellants article 6(1) Convention right was 5 April 2005; and (2) that the Lord Advocates act in proceeding with the trial on the murder charges was not incompatible with the appellants article 6(1) right to a trial before a tribunal that was independent and impartial. The proceedings will be remitted to the High Court of Justiciary [58]. Lord Hope gives the judgment of the court. The meaning of the word charged has been considered in a number of cases regarding article 6(1), which provides that in the determination of any criminal charge against him a person has the right to a fair trial within a reasonable time and article 6(3)(c) which provides a right to legal assistance for anyone charged with a criminal offence [25 32]. The focus of article 6(3)(c) is on the state of affairs when the suspect is first interrogated, as to wait until the stage is reached when there is sufficient evidence to charge before the suspect has the right of access to a lawyer could seriously prejudice his right to a fair trial. This is in contrast with the reasonable time guarantee of article 6(1): it relates to the running of time, not on what is needed to preserve the right to a fair trial. The rationale is the person should not remain too long in a state of uncertainty. Time runs from the date which the suspects position is substantially affected by the official notification. In the United Kingdom this could be some time after he is first questioned [33 34]. The date from which reasonable time begins is the subject of a separate guarantee from the guarantee that the trial will be fair and falls to be approached independently [36]. The appellants were certainly not at any stage of their interviews charged in the formal sense. They were both asked directly whether they killed Mrs McGarrigle. But, in the context in which these questions were being put, it cannot be said that this amounted to an official notification that they were likely to be prosecuted [37]. In the absence of any evidence to show where, when and how she had died, the police were in no position to initiate criminal proceedings. In August 2003 they received information that led to further enquiries and resulted in the appellants being charged with murder in 2005 [38]. On the issue of apparent bias, the test is contained in Porter v Magill [2001] UKHL 67 and considered in a number of authorities [47 52]. It would only be if the judge expressed outspoken opinions about the appellants character that were entirely gratuitous, and only if the occasion for making them was plainly outside the scope of the proper performance of his duties, that the fair minded and informed observer would doubt the judges ability to perform those duties with an objective judicial mind. The context indicates that nothing of the kind happened in this instance [53 54]. Furthermore, no objection was made by the defence at any point to the fact that Lord Pentland was to preside over the murder trial as well and there are no grounds for doubting his impartiality [55 56].
This appeal raises questions of European Union law. These questions have their origins in an EU Framework Agreement on part time work which was concluded in 1997. It was implemented by a Council Directive of the same year, which was extended to the United Kingdom in 1998. Directives are binding as to the result to be achieved, leaving only the choice of form and methods to the Member State. The Council Directive was transposed into UK law by the Part time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (the 2000 Regulations). In essence, the 2000 Regulations provide that a part time worker has the right not to be treated by his employer less favourably than a comparable full time worker [2, 13 and 17]. Recorders are one of several types of part time judge who are paid a fee for their work. Mr OBrien is now a retired barrister. During his practice at the bar, he sat as a recorder from 1 March 1978 until 31 March 2005. Mr OBrien claimed to be entitled to a pension in respect of his part time non salaried judicial work as a recorder on the same basis, adjusted pro rata temporis, as that paid to former full time judges who had done the same or similar work. The then Department for Constitutional Affairs (DCA) told him that he was not entitled to a judicial pension since the office of recorder was not a qualifying judicial office under the relevant UK legislation and because, under European law, he was an office holder rather than a worker [1 and 5]. Mr OBrien began proceedings in the Employment Tribunal, claiming amongst other things that he was being discriminated against because he was a part time worker. His claim was successful but the DCA (now the Ministry of Justice (MoJ)) appealed successfully to the Employment Appeal Tribunal on the grounds that Mr OBriens claim was made after the relevant time limit. The Court of Appeal allowed Mr OBriens appeal on the time limit issue but directed the Employment Tribunal to dismiss his claim, since it found that judges were not workers under the 2000 Regulations [6 and 7]. Mr OBrien appealed to the Supreme Court which, in 2010, made a reference to the Court of Justice of the European Union (CJEU) for a preliminary ruling. Because domestic law could not readily be disentangled from EU law on the issue, the Supreme Court preferred to express no concluded view on whether Mr OBrien would qualify as a worker under the 2000 Regulations until it had received guidance from the CJEU. The CJEU issued its preliminary ruling, and the matter returned to the Supreme Court. The Supreme Court is obliged under section 3(1) of the European Communities Act 1972 to determine the questions of EU law in this case in accordance with the principles laid down in the CJEUs preliminary ruling [1, 8 and 33]. As a result of the questions that were referred and of the CJEUs preliminary ruling in response to them, there were two issues before the Supreme Court: (1) whether the relationship between the MoJ and judges is substantially different from that between employers and those treated in national law as workers (the worker issue); and (2) whether the difference in treatment of recorders as compared to full time or salaried judges for the purposes of access to the retirement pension scheme is justified by objective reasons (the objective justification issue). After a hearing in July 2012, the Supreme Court ruled that Mr OBrien was a part time worker within the meaning of the Framework Agreement. The parties were heard on the objective justification issue in November 2012. The judgment of the Supreme Court sets out the reasons for its ruling on the worker issue and its reasoning and conclusions on the objective justification issue [10 12]. The Supreme Court unanimously allows Mr OBriens appeal. Recorders are in an employment relationship within the meaning of the Framework Agreement on part time work and must be treated as workers for the purposes of the 2000 Regulations. No objective justification has been shown in this case for departing from the basic principle of paying a part time worker the same as a full time worker calculated on a pro rata temporis basis. Mr OBrien is entitled to a pension on terms equivalent to those applicable to a circuit judge. The case will be remitted to the Employment Tribunal for the determination of the amount of the pension to which he is entitled. The judgment is given by Lord Hope and Lady Hale [12, 42, 75 and 76]. The CJEU stated that it was ultimately for the Supreme Court to decide the worker issue, but it set out a number of factors which the Supreme Court had to take into account, including that the term worker in the Framework Agreement is used to draw a distinction from a self employed person, which distinction is part of the spirit of the Framework Agreement. In arriving at its ruling on the worker issue, and following the guidance from the CJEU, the Supreme Court took into account the following: (1) the character of the work that a recorder does in the public service differs from that of a self employed person; (2) the rules for the appointment and removal of recorders, to which no self employed person would subject himself; (3) the way recorders work is organised for them, bearing in mind that, in common with all other part time judges, recorders are expected to work during defined times and periods; and (4) recorders entitlement to the same benefits during service, as appropriate, as full time judges [30 and 37]. Recorders are expected to observe the terms and conditions of their appointment, and they may be disciplined if they fail to do so. The very fact that most recorders are self employed barristers or solicitors merely serves to underline the different character of their commitment to the public service when they undertake the office of recorder. As the CJEU made clear, the spirit and purpose of the Framework Agreement requires a distinction between worker and self employed person. When taken together, the matters taken into account by the Supreme Court following the guidance of the CJEU really speak for themselves. In the case of part time judges, the essential distinction between the employed and the self employed can be drawn. The self employed person has the comparative luxury of independence. Part time judges are not free agents to work as and when they choose. They are not self employed persons when working in that capacity [38 40]. The Supreme Court follows the guidance given by the CJEU and the Advocate General (who presents an impartial opinion on the case to assist the CJEU) in relation to the objective justification issue. To give a greater reward to those who are thought to need it most or alternatively to those who make the greater contribution to the justice system may be legitimate aims for the MoJ. However, they ultimately amount to nothing more than blanket discriminations between the different classes of worker, which would undermine the basic principle of the Council Directive. The criteria adopted in relation to each of the MoJs stated aims are not precise and transparent. In relation to the first aim, some part timers will need pension provision as much as, if not more than, some of the full timers. In relation to the second aim, the MoJ have failed to demonstrate that fee paid part timers, as a class, make a lesser contribution to the justice system than do full timers, as a class. The proper approach to differential contributions is to make special payments for extra responsibilities. The argument also fails to take into account the benefits to the system in having a cadre of fee paid part timers who can be flexibly deployed to meet the changing demands upon it. The aim of recruiting a high quality judiciary is undoubtedly legitimate, but it applies to the part time judiciary as much as it applies to the full timers. Nor has it been shown that denying a pension to the part timers has a significant effect upon the recruitment of full timers [71 73]. The MoJs argument was essentially that if recorders receive a pension, then the pensions payable to circuit judges will have to be reduced. That is a pure budgetary consideration which depends upon the assumption that the present sums available for judicial pensions are fixed for all time. Of course there is not a bottomless fund of public money available and we are currently living in very difficult times. But the fundamental principles of equal treatment cannot depend upon how much money happens to be available in the public coffers at any one particular time or upon how the State chooses to allocate the funds available between the various responsibilities it undertakes. That argument would not avail a private employer and it should not avail the State in its capacity as an employer [74].
Section 133 of the Criminal Justice Act 1988 (s 133) provides that the Secretary of State for Justice shall pay compensation when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice. It was enacted to give effect to Article 14(6) of the International Covenant on Civil and Political Rights 1966 (Article 14(6)), which the United Kingdom ratified in May 1976. Article 14(6) also refers to a miscarriage of justice. The principal issue in these appeals was the meaning of this phrase in this context; in particular whether compensation should only be given if someone was subsequently shown conclusively to have been innocent of the offence. The three appellants each claimed compensation following the quashing of their convictions for murder by the Court of Appeal. In each case the claim was refused on the ground that the appellant had not shown that a miscarriage of justice had occurred. In Mr Adams case, it was also refused on the ground that he had not shown that his conviction had been reversed by reason of a new or newly discovered fact. Mr Adams was convicted on 18 May 1993 of the murder of Jack Royal. His conviction was referred to the Court of Appeal in 2007 on the ground that incompetent defence representation had deprived him of a fair trial. His representatives had failed to consider unused material provided by the police which would have assisted in undermining the evidence given by the sole prosecution witness. The Court of Appeal found that if this had been done the jury might not have been satisfied of Mr Adams guilt, although he would not inevitably have been acquitted. Mr McCartney was convicted of the murders of Geoffrey Agate and DC Liam McNulty, and Mr MacDermott that of DC McNulty, on 12 January 1979. The sole evidence was their admissions during interviews with the police. They alleged that these had been made after ill treatment and called other witnesses who claimed to have suffered similar treatment from the same group of police officers. The judge rejected their evidence. He had been told that a prosecution brought against one of these witnesses had not been proceeded with. But he was not told that this was because senior officers in the Department of the Director of Public Prosecutions considered that he had been assaulted by police officers to obtain his confession and that a conviction in another case, based on a confession obtained in similar circumstances and involving one of the same officers, had been quashed. The Court of Appeal in Northern Ireland quashed the convictions of Mr McCartney and Mr MacDermott on 15 February 2007 on the ground that this new evidence left it with a distinct feeling of unease about the safety of their convictions. The Supreme Court unanimously dismisses the appeal of Mr Adams and by a majority (Lord Rodger, Lord Walker, Lord Brown and Lord Judge dissenting) allows the appeals of Mr MacDermott and Mr McCartney. The majority hold that a miscarriage of justice has occurred for the purposes of s 133 when a new or newly discovered fact shows conclusively that the evidence against a defendant has been so undermined that no conviction could possibly be based upon it. Miscarriage of justice Miscarriage of justice was a phrase capable of a number of different meanings. It was useful to consider four categories of cases in which the Court of Appeal would quash a conviction on the basis of fresh evidence: Where it showed a defendant was innocent of the crime (category 1) Where it was such that, had it been available at the time of the trial, no reasonable jury could properly have convicted the defendant (category 2) Where it rendered the conviction unsafe in that, had it been available at the trial, a reasonable jury might or might not have convicted the defendant (category 3) Where something had gone seriously wrong in the investigation of the offence or the conduct of the trial resulting in the conviction of someone who should not have been convicted (category 4) [9] The primary object of s133, and of Article 14(6), was clearly to compensate a person who had been convicted and punished for a crime which he did not commit. A subsidiary objective was not to compensate someone who had in fact committed the crime [37]. Category 4 fell outside this purpose as it dealt with abuses of process so shocking that the conviction should be quashed even if it did not put in doubt the guilt of the convicted person [38]. Category 3 was also outside s 133 because the miscarriage of justice had to be shown beyond reasonable doubt. Category 3 would include a significant number who had in fact committed the offences, as an inevitable consequence of a system which required guilt to be proved beyond reasonable doubt [42]. Category 1 cases were clearly covered by s 133. However, the majority (Lord Phillips, Lord Hope, Lady Hale, Lord Kerr and Lord Clarke) held that the ambit of s 133 was not restricted to category 1 as it would deprive of compensation some defendants who were in fact innocent but could not establish this beyond reasonable doubt. A wider scope was plainly intended at the time of the drafting of Article 14(6). Even though it would not guarantee that all those entitled to compensation were in fact innocent, the test for miscarriage of justice in s 133 (in more robust terms than category 2) was as follows: A new or newly discovered fact will show conclusively that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it [55]. A miscarriage of justice in a case of that kind would be as great as it would have been if he had in fact been innocent, because in neither case would he have been prosecuted at all [102]. Four justices dissented on this issue. Lord Judge considered that the words beyond reasonable doubt in s 133 meant that the miscarriage of justice was the conviction and incarceration of the truly innocent [248]. Lord Brown considered that there was no logical or principled dividing line between categories 2 and 3 [274] and the arguments in favour of an interpretation limited to category 1 were compelling [277]. Lord Rodger agreed with Lord Brown, and Lord Walker agreed with Lord Brown and Lord Judge. Application of s 133 to cases involving a retrial An amendment to s 133 (subsection 5A) which referred to a retrial changed the timetable for a claim for compensation. It did not mean that compensation was payable in every case in which a retrial had been ordered and the defendant then acquitted, as was argued by counsel for the intervener Barry George. The same test was to be applied. The amendment allowed for the possibility that something might emerge in the retrial which would require compensation [104]. New or newly discovered fact Lord Phillips (with whom Lady Hale, Lord Kerr and Lord Clarke agreed) held that the phrase new or newly discovered fact should be interpreted generously in accordance with the effect given to Article 14(6) by legislation in Ireland as including facts the significance of which was not appreciated by the convicted person or his advisers during the trial [60]. Lord Hope disagreed, considering that material disclosed to the defence by the time of the trial could not be said to be new and the focus on the state of mind of the convicted person went too far [107]. Lord Judge (with whom Lords Brown, Rodger and Walker agreed) preferred an approach which coincided with the test for admission of fresh evidence before the Court of Appeal, which required a reasonable explanation for the failure to adduce the evidence at the trial. This had been satisfied by Mr Adams in his case [281]. Disposal of the appeals Mr Adams appeal was unanimously dismissed on the ground that his was a category 3 case and did not fall within s 133. The majority allowed the appeals of Mr McCartney and Mr MacDermott as it had been shown conclusively that the evidence against them had been so undermined that no conviction could possibly be based upon it. The minority would have remitted their cases to the Secretary of State for further consideration in the light of the judgment.
This appeal is concerned with how doctors and courts should decide when it is in the best interests of a patient, who lacks the capacity to decide for himself, for him to be given, or not to be given, treatments necessary to sustain life. The respondent hospital trust (Aintree) sought a declaration under the Mental Capacity Act 2005 in respect of the appellant, Mr James, who was admitted to hospital in May 2012. Mr James acquired an infection which was complicated by the development of chronic pulmonary disease, an acute kidney injury and persistent low blood pressure. He was admitted to the critical care unit and placed on a ventilator. In the ensuing months he suffered some severe setbacks, including a stroke and recurrent infections, and his condition fluctuated. After July 2012, deterioration in his neurological state meant he was considered to lack capacity to make decisions about his medical treatment. However, he appeared to recognise and take pleasure in visits from his wife and family and his friends. In September 2012 Aintree issued proceedings in the Court of Protection seeking declarations that it would be in the best interests of Mr James for specified treatments to be withheld from him in the event of a clinical deterioration. These were painful and/or deeply physical treatments such as cardiopulmonary resuscitation (CPR). Mr James family took a different view from the clinicians, believing that, while he would never recover his previous quality of life, he gained pleasure from his present quality of life and would wish it to continue. The Mental Capacity Act Code of Practice provides that it may be in the best interests of a patient in a limited number of cases not to give life sustaining treatment where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery, even if this may result in the persons death. The trial judge interpreted these words as inapplicable to treatments which would enable Mr James to resume a quality of life which he would regard as worthwhile: they did not have to return him to full health. He held that it would not be appropriate to make the declarations sought. The Court of Appeal reversed his decision on 21 December 2012, by which time Mr James condition had deteriorated further. It held that futility was to be judged by the improvement or lack of improvement which the treatment would bring to the general health of the patient, and recovery meant recovery of a state of health which would avert the looming prospect of death. Mr James suffered a cardiac arrest and died on 31 December 2012. The Supreme Court gave his widow permission to appeal notwithstanding this, in view of the importance of the issues and the different approaches taken in the courts below to the assessment of the patients best interests. The Supreme Court unanimously holds that the trial judge applied the right principles and reached a conclusion which he was entitled to reach on the evidence before him. But the Court of Appeal were right to reach the conclusion they did on the basis of the fresh evidence before them. Technically, therefore, the appeal is dismissed. Lady Hale gives the sole judgment, with which Lord Neuberger, Lord Clarke, Lord Carnwath and Lord Hughes agree. S 15 of the Mental Capacity Act 2005 provides that the court may make declarations as to whether a person has or lacks capacity, and as to the lawfulness of any act done or yet to be done in relation to that person. The Act is concerned with enabling the court to do for a patient what he could do for himself if of full capacity, but goes no further. A patient cannot order a doctor to give a particular form of treatment (although he may refuse it) and the courts position is no different [18]. However, any treatment which doctors do decide to give must be lawful. Generally it is the patients consent which makes invasive medical treatment lawful [19]. If a patient is unable to consent it is lawful to give treatment which is in his best interests [20]. The fundamental question is whether it is in the patients best interests, and therefore lawful, to give the treatment, not whether it is lawful to withhold it [21]. The starting point is the strong presumption that it is in a persons best interests to stay alive [35]. In considering the best interests of a particular patient at a particular time, decision makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude is or would be likely to be; and they must consult others who are looking after him or interested in his welfare [39]. The judge was right to consider whether the proposed treatments would be futile in the sense of being ineffective or being of no benefit to the patient. He was right to weigh the burdens of treatment against the benefits of a continued existence, and give great weight to Mr James family life, which was of the closest and most meaningful kind [40]. He was right to be cautious in circumstances which were fluctuating [41]. A treatment may bring some benefit to a patient even if it has no effect upon the underlying disease or disability [43]. It was not futile if it enabled a patient to resume a quality of life which the patient would regard as worthwhile [44]. The Court of Appeal had been wrong to reject the judges approach. It had also been wrong to suggest that the test of the patients wishes and feelings was an objective one, namely what the reasonable patient would think. Insofar as it was possible to ascertain the patients wishes and feelings, his beliefs and values or the things which were important to him, these should be taken into account because they were a component in making the choice which was right for him as an individual human being [45]. However, by the time of the appeal there had been such a significant deterioration in Mr James condition that the time had indeed come when it was no longer in his best interests to provide the treatments. The prospect of his regaining even his previous quality of life was by then very slim. The Court of Appeal had therefore been correct to allow Aintrees appeal [46].
The issue in the case is whether the Secretary of State can continue to recoup Social Fund loans and overpayment of benefits by deduction from current benefit payments during the moratorium period after the making of a Debt Relief Order (DRO) under Part 7A of the Insolvency Act 1986 (the IA). Mrs Payne obtained a Social Fund budgeting loan in September 2007. In August 2009, she obtained a DRO listing the loan among her qualifying debts. When she notified the Secretary of State, he began making deductions from her income support. In August 2010, the moratorium period came to an end and the debt was discharged. Ms Cooper incurred an overpayment of benefit. In December 2009 the Secretary of State began making deductions from her incapacity benefit in order to recover the overpayment. In January 2010, Ms Cooper obtained a DRO which listed the overpayment as one of her qualifying debts. Section 251G(2)(a) of the IA provides that during the moratorium the creditor to whom a specified qualifying debt is owed has no remedy in respect of the debt. Mrs Payne and Ms Cooper brought judicial review proceedings challenging the lawfulness of the deductions made after the making of the DROs; their cases were consolidated. Cranston J at first instance found in their favour, holding that the power to make deductions from current benefits ceased to be available when Mrs Payne and Ms Cooper obtained the DROs. A majority of the Court of Appeal (Smith and Toulson LJJ) confirmed the High Courts decision. The Secretary of State appealed. In the context of bankruptcy, the High Court has held that such deductions can continue to be made between the making of the bankruptcy order and the bankrupts discharge from bankruptcy: R v Secretary of State for Social Security, Ex p Taylor and Chapman [1997] BPIR 505. The House of Lords reached the same conclusion in the context of Scottish bankruptcy law: Mulvey v Secretary of State for Social Security 1997 SC (HL) 105. Once a bankrupt is discharged, however, the Court of Appeal has held that the liability to repay the Secretary of State is also discharged: R (Balding) v Secretary of State for Work and Pensions [2007] EWCA Civ 1327. The Supreme Court unanimously dismisses the appeal. The leading judgment was given by Lady Hale, with whom the other justices agreed (Lord Brown and Lord Mance adding short concurring judgments). The Court holds that there is no such thing as the net entitlement principle. The claimant has a statutory entitlement to the amount of benefit which she is awarded. The liability to repay arises independently of her entitlement to any benefit from which the Secretary may later decide to recoup it [21]. The power to recover the debt by deduction from benefit is a remedy in respect of a debt which may not be exercised during the moratorium, according to section 251G(2) of the IA [22], [34]. The Court sees no reason to distinguish between the DRO scheme and bankruptcy in this respect. The Court considers that Taylor and Chapman was wrongly decided. The Secretary of State loses the power to recoup overpayments and Social Fund loans on the making of a bankruptcy order just as he does on the making of a DRO [23]. The Court affirms Balding and finds that the principle equally applies to the DRO scheme. All the liabilities to repay overpaid benefits, tax credits and Social Fund loans listed in DROs will in any event be wiped out at the end of the moratorium period [26]. The Court comments that it would be open to the Government to promote delegated legislation to exclude these liabilities from the definition of qualifying debts in the DRO scheme and to seek equivalent legislative amendment of the the bankruptcy scheme.
This appeal arises in the course of long running proceedings known as the Franked Investment Income (FII) Group Litigation. The FII Group Litigation brings together many claims concerning the way in which advance corporation tax and corporation tax used to be charged on dividends received by UK resident companies from non resident subsidiaries. The Respondents to this appeal are claimants within the FII Group Litigation whose cases have been selected to proceed as test claims on certain common issues (the Test Claimants). These issues are being determined in phases, with the courts decisions affecting not just the other claims within the FII Group Litigation, but potentially also a number of other sets of proceedings brought by corporate taxpayers against the Commissioners for Her Majestys Revenue and Customs (HMRC). The Test Claimants case is that the differences between their tax treatment and that of wholly UK resident groups of companies breached the EU Treaty provisions which guarantee freedom of establishment and free movement of capital. They seek repayment by HMRC of the tax wrongly paid, together with interest, dating back to the UKs entry to the EU in 1973. Restitutionary claims for the recovery of money must normally be brought within six years from the date on which the money was paid. As an exception to that general rule, section 32(1)(c) of the Limitation Act 1980 provides that, in respect of an action for relief from the consequences of a mistake, the limitation period only begins to run when the claimant has discovered the mistake or could with reasonable diligence have discovered it. Before the Court of Appeal, the Test Claimants argued that, where a claimant is seeking to recover money paid under a mistake of law, the effect of section 32(1)(c) is to postpone the commencement of the limitation period until such time as the true state of the law is established by a judicial decision from which there lies no right of appeal. In their cases, the Test Claimants said that this was when, in 2006, the Court of Justice of the European Union decided that relevant aspects of the UK tax regime were incompatible with EU law. HMRC argued that time instead began to run in 2001, when the Court of Justice decided that other aspects of the UK tax regime breached EU law. The Court of Appeal found in favour of the Test Claimants on this issue. On appeal to the Supreme Court, HMRC argued that section 32(1)(c) of the Limitation Act 1980 applies only to mistakes of fact and not to mistakes of law, or alternatively that the Test Claimants could reasonably have discovered their mistake more than six years before they issued their claims in 2003. On either approach, a proportion of the claims would be time barred. The Supreme Court unanimously allows the appeal, but for differing reasons. The majority (Lord Reed, Lord Hodge, Lord Lloyd Jones and Lord Hamblen) hold that section 32(1)(c) of the Limitation Act 1980 applies to claims for the restitution of money paid under a mistake of law, with time beginning to run when the claimant discovers or could with reasonable diligence have discovered their mistake in the sense of recognising that they have a worthwhile claim. It leaves the application of that test to the facts of this case for the High Court, after the parties have had an opportunity to amend their pleadings. The minority (Lord Carnwath, Lord Briggs and Lord Sales) would have held that section 32(1)(c) has no application to mistakes of law. Lord Reed and Lord Hodge give the main judgment, with which Lord Lloyd Jones and Lord Hamblen agree. Lord Briggs and Lord Sales give a partially dissenting judgment, with which Lord Carnwath agrees. Should HMRC be allowed to argue that section 32(1)(c) does not apply to mistakes of law? The Court rejects the Test Claimants various objections to HMRC arguing at this stage of the proceedings that section 32(1)(c) of the Limitation Act 1980 does not apply to mistakes of law. Cause of action estoppel is a legal doctrine which stops a party from raising points which might have been but were not raised and decided in earlier proceedings [61] [62]. As it operates only to prevent the raising of points which were essential to the existence or non existence of a cause of action, and the effect of limitation instead is to render an otherwise valid claim unenforceable, this doctrine does not prevent HMRC from making their current challenge [63]. Issue estoppel is a related legal doctrine which stops a party from raising points which were not raised in earlier proceedings or were raised unsuccessfully [64] [68]. As the question of when the limitation period commenced was not argued or determined in the first phase of the FII Group Litigation, and as it would not have been possible for HMRC to make their current limitation challenge before the lower courts, this doctrine does not prevent HMRC from making that challenge now [69]. Further, HMRCs challenge does not amount to an abuse of process, when seen in the context of group litigation which raises novel issues of unparalleled complexity, and which was the subject of case management decisions as to the order in which these issues were to be addressed [78] [79]. It is readily understandable why in the first phase of the litigation HMRC focused on arguments which, if successful, would have made it unnecessary to mount this wider challenge [80]. On the basis of those factors, as well as the substantial value of the claims, the importance of the issue to other claimants both within and outside the FII Group Litigation, and the potential to remedy any prejudice through an order for costs, the Supreme Court allows HMRC to withdraw their concession that section 32(1)(c) applies to mistakes of law, and now to make the contrary case [94] [100]. That case places in question two of the most important decisions on the law of limitation of recent times: Deutsche Morgan Grenfell Group Plc v Inland Revenue Comrs [2006] UKHL 49 (Deutsche Morgan Grenfell) and Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 (Kleinwort Benson) [1], [172]. What is the test for the discoverability of a mistake under section 32(1)(c)? In Deutsche Morgan Grenfell, the House of Lords tied the date of discoverability of a mistake of law to the date when the truth as to whether the claimant has a well founded cause of action is established by a decision of a court of final jurisdiction [167] [170], [213]. Section 32(1)(c) cannot be intended to have that effect, as limitation periods apply regardless of whether the substance of the claim is disputed, and regardless of whether there is in truth a well founded cause of action [177] [179], [199] [202], [213]. Such an approach also has the illogical consequence that mistakes are not discoverable by a claimant until after he has issued a claim on the basis of the mistake [173] [174], and perpetuates the problems associated with distinguishing between matters of fact and matters of law [195], [213], [250]. Given those very unfortunate consequences, for which there is currently no prospect of Parliament enacting a legislative solution, it is appropriate for the Supreme Court to depart from the decision in Deutsche Morgan Grenfell in relation to discoverability [250] [253]. The correct approach is that time begins to run under section 32(1)(c) when the claimant discovers, or could with reasonable diligence discover, his mistake in the sense of recognising that a worthwhile claim arises [193], [209]. That approach brings section 32(1)(c) into line with section 32(1)(a), and with other analogous provisions of the 1980 Act [180] [196], [213]. Does section 32(1)(c) apply to mistakes of law? Section 32(1)(c) applies to mistakes of law, as the House of Lords decided in Kleinwort Benson. Although that decision was not supported by convincing reasoning [148] [161], and although when section 32(1)(c) was enacted it was not contemplated that it might extend to actions for the restitution of money paid under a mistake of law, the ordinary meaning of the words of that provision include such actions [220] [221], [242] [243]. Excluding claims based on a mistake of law would frustrate the purpose of section 32(1)(c), which is to relieve claimants from the necessity of complying with a time limit at a time when they cannot reasonably be expected to do so [220] [221], [242] [243]. Including such claims does not have unacceptable consequences for legal certainty, particularly now that the approach to discoverability in Deutsche Morgan Grenfell is departed from [225] [229], [242] [243]. How should the test for discoverability of a mistake under section 32(1)(c) be applied to the facts of this case? The Court of Appeal applied the approach to discoverability wrongly established in Deutsche Morgan Grenfell, such that HMRCs appeal must be allowed [254]. The Supreme Court cannot, however, determine in the abstract the point in time when the Test Claimants could with reasonable diligence have discovered their mistake. That question is left for the High Court to determine, after the parties have had an opportunity to amend their pleadings [255]. Dissenting judgment In their partially dissenting judgment, Lord Briggs and Lord Sales conclude that section 32(1)(c) does not apply to payments made on the basis of a mistake of law [258]. They consider that the House of Lords was wrong to decide otherwise in Kleinwort Benson [274] [285] and that the proper course now is to overrule that decision [298], [303]. Any application of section 32(1)(c) to mistakes of law which include judicial rewriting of the law is bound to risk opening up very old claims [289] across a wide range of cases [293], going well beyond the narrow equitable principle which was intended to apply [296]. This introduces large inroads into the overall purpose of the legislation by undermining legal certainty [259]. The approach taken by the majority to the issue of discoverability does not provide an adequate answer to these objections [278], [297] and could prove unfair and unworkable in practice [259], [298]. On the footing that the majoritys interpretation of section 32(1)(c) has prevailed, however, Lord Briggs and Lord Sales agree that it is appropriate to depart from the decision in Deutsche Morgan Grenfell in relation to discoverability [304].
This appeal concerns the enforcement in England of a Nigerian arbitration award dated 28 October 2004 for USD 152,195,971 plus 5m Nigerian Naira in respect of a contract by which IPCO (Nigeria) Limited (IPCO) undertook to design and construct a petroleum export terminal for Nigerian National Petroleum Corporation (NNPC). The award is subject to still outstanding challenges by NNPC in Nigeria, initially for what have been called non fraud reasons and, from 27 March 2009, for alleged fraud in relation to IPCOs presentation of its claim. The issue before the Court is whether the appellant, NNPC, should have to put up a further USD 100m security in the English enforcement proceedings. An ex parte order for enforcement made by Steel J on 29 November 2004 led to an application by NNPC to set aside under ss.103(2)(f) and 103(3) or, alternatively, for enforcement to be adjourned under s.103(5), of the Arbitration Act 1996 (the 1996 Act). On 27 April 2005, Gross J ordered that enforcement be adjourned pending resolution in Nigeria of the non fraud challenges, conditional on NNPC (i) paying IPCO USD 13.1m and (ii) putting up security of USD 50m under s.103(5). Following a further application for enforcement based on the delay in the Nigerian proceedings, and further orders including one under which a further USD 30m was provided by way of security, NNPC applied in Nigeria to raise the fraud challenge. A consent order dated 17 June 2009 was then made in the English proceedings whereby the decision on enforcement was further adjourned under s.103(5), upon NNPC undertaking to maintain the security of USD 80m thus far provided until further order. On 24 July 2012, IPCO renewed its application to enforce on the ground of the further delay in the Nigerian proceedings. This application was dismissed by Field J but allowed on appeal by the Court of Appeal, which decided to cut the Gordian knot caused by the sclerotic process of the Nigerian proceedings. The Court of Appeal ordered that (i) the proceedings be remitted to the Commercial Court for it to determine pursuant to s.103(3) whether the award should be enforced in light of the alleged fraud and (ii) any further enforcement of the award be adjourned in the meanwhile under s.103(5), such order being made conditional on NNPC providing a further USD 100m security (in addition to the USD 80m already provided). NNPC appeals against the order for security on the basis that it was made without jurisdiction or wrong in principle and/or was illegitimate in circumstances where both Field J and the Court of Appeal had concluded that NNPC had a good prima facie case of fraud entitling it to resist enforcement of the whole award. The Supreme Court unanimously allows NNPCs appeal. Lord Mance gives the lead judgment, with which all the Justices agree. Section 103(5) of the 1996 Act The Court of Appeals order was not justified by reference to s.103(5). Nothing in s.103(2) or (3) (or in the underlying provisions of article V of the New York Convention) provides a power to make an enforcing courts decision on an issue raised under these provisions conditional on an award debtor providing security in respect of the award. This is in marked contrast to s.103(5), which specifically provides that security may be ordered where there is an adjournment within its terms [24]. The Court also erred in treating its order that the English Commercial Court should decide the fraud issue as involving an adjournment of the decision on that issue within the terms of s.103(5). Section 103(5) concerns the situation where an enforcing court adjourns its decision on enforcement under s.103(2) or (3) while an application for setting aside or suspension of the award is pending before the court of the country in, or under the law of which, the award was made. It does not extend to delays in the decision making process occurring while a decision of an issue under s.103(2) or (3) is made [25 26]. Further, s.103(5) contemplates an order for security being made on the application of the party claiming recognition or enforcement of the award. The reasoning in Dardana v Yukos [2002] confirms that security pending the outcome of foreign proceedings is, in effect, the price of an adjournment which an award debtor is seeking; it is not to be imposed on an award debtor who is resisting adjournment on properly arguable grounds [27 29]. In the present case, there was no adjournment under s.103(5) onto which to hang, as the price, a requirement of further security [30 32]. The Court of Appeals further reasons for imposing the security, including as an incentive to securing finality in the context of lengthy delays, do not go to the jurisdiction or power to order security under s.103 [32]. General English procedural rules The requirement to provide security could not be justified by reference to general English procedural rules. Reliance was placed on CPR 3.1(3) and, indirectly, s.70(7) of the 1996 Act [16 21]. However, the conditions for recognition and enforcement set out in articles V and VI of the New York Convention (to which s.103(2), (3) and (5) give effect) constitute a complete code intended to establish a common international approach. Had it been contemplated that the right to have a decision of a properly arguable challenge, on a ground mentioned in article V (i.e. s.103(2) and (3)), might also be made conditional on provision of security in the amount of the award, that could and would have been said. The Convention reflects a balancing of interests. Its provisions were not aimed at improving award creditors prospects of laying hands on assets to satisfy awards. Courts have other means of assisting award creditors which do not impinge on award debtors rights of challenge, such as disclosure and freezing orders [41]. Section 70(7) provides that the court may order that any money payable under the award shall be brought into court or otherwise secured pending the determination of the application or appeal. It only applies, however, to arbitrations that (unlike the present) have their seat in England, Wales or Northern Ireland. The 1996 Act contains no equivalent in relation to Convention awards. Further, the power will only be exercised if the challenge appears flimsy or otherwise lacks substance, which cannot be said of NNPCs fraud challenge [43]. Finally, CPR 3.1(3) has no relevance on this appeal. It is a power, expressed in general terms, to impose conditions on orders. Its focus is the imposition of a condition as the price of relief sought as a matter of discretion or concession, and not the imposition of a fetter on a person exercising its right to raise a properly arguable challenge to recognition or enforcement [44].
Interest bearing loan notes (the notes) to the value of 660m were issued to certain companies (the Noteholders) by a special purpose vehicle formed by the Lehman Brothers group, Eurosail UK 2007 3BL (the Issuer). The Issuer used the issue of the notes to fund the purchase of a portfolio of mortgage loans, to the value of 650m, secured on residential property in the United Kingdom. The notes were issued in 5 principal classes in order of priority for repayment. Those classes run from A through to E, and comprise a total of 14 sub classes. The A notes hold highest priority, are of the highest value, and are designated either A1, A2 or A3. The final redemption date of the lowest priority notes is in 2045. The terms governing the issue of the notes (the Conditions) provide that in the event of an Event of Default, an Enforcement Notice may be served by the trustee of the Noteholders rights, namely BNY Corporate Trustee Services Ltd (the Trustee). If the Issuer becomes unable to pay its debts under the terms of section 123 of the Insolvency Act 1986 (the 1986 Act), that would constitute an Event of Default. That section provides that a company is deemed unable to pay its debts, first, if it is unable to pay those debts as they fall due or, secondly, if the value of the companys assets is less than the amount of its liabilities, taking into account its contingent and prospective liabilities. The former is often referred to as the cash flow test, and the latter as the balance sheet test. The effect of section 123 was incorporated into the Conditions. Further, on the date on which the notes were issued, on behalf of the Noteholders the Trustee entered into an agreement (PECO) with another company (OptionCo). OptionCo was granted the option to purchase all of the notes from the Noteholders, plus the accrued interest, for a nominal consideration in the event that the Trustee determines that the Issuer is unable to pay its debts under section 123. The intended effect of this was that, in the event that the assets of the Issuer were exhausted, the remaining claims of the Noteholders against the Issuer would be assigned to OptionCo, and the Issuer would not be regarded as unable to pay its debts. The Issuer had entered into swap agreements with two of Lehman Brothers companies, with the consequence that when the latter became insolvent the Issuer suffered a significant deficiency in its net asset position, though it continued to pay its debts. The holders of the A1 and certain other of the notes had been repaid by this time. The A2 Noteholders were to have priority over A3 Noteholders in receiving repayments of principal out of sums raised by the Issuer from the redemption of mortgages in the portfolio, though those two groups would rank equally for repayment of interest. However, a finding that the Issuer was unable to pay its debts, and the consequent issuing of an Enforcement Notice, would alter this position significantly: all notes would become immediately due and payable and, importantly, A2 and A3 Noteholders would rank equally for repayment of principal. Against that background, though adopting a neutral position, the Trustee commenced these proceedings to seek a determination of whether the difficulties suffered by the Issuer constituted an Event of Default on the basis that it was unable to pay its debts within the meaning of section 123 of the 1986 Act. This appeal is therefore concerned with the construction of section 123. The Issuer and certain of the A2 Noteholders successfully argued in both the High Court and the Court of Appeal that the Issuer was not unable to pay its debts within the meaning of section 123. The Appellants, who are A3 Noteholders, argue to the contrary, and seek a stricter construction of section 123 than that which was applied by the lower courts. By way of cross appeal the Issuer renews its argument, rejected by the Court of Appeal, that in the event that the Issuer was otherwise deemed unable to pay its debts under section 123, the effect of the PECO should serve to alter that conclusion. The Supreme Court unanimously dismisses the appeals and the Issuers cross appeal. Lord Walker, with whom Lord Mance, Lord Sumption and Lord Carnwath agree, gives the lead judgment. Lord Hope gives a concurring judgment. Having regard to previous relevant legislation, to the authorities pertaining to those provisions and to section 123 of the 1986 Act itself, the enactment of section 123 should be seen as having made little significant change in the law. The changes in form therein emphasise that the cash flow test is concerned with debts falling due from time to time in the reasonably near future, in addition to those debts presently due. What is to be regarded as the reasonably near future will depend on the circumstances at hand, but especially the nature of the companys business [37]. However, once one moves beyond the reasonably near future, any attempt to apply the cash flow test will become completely speculative. In that situation, a comparison of present assets with present and future liabilities, the latter having been discounted to account for contingencies and deferment of payments, becomes the only sensible test. That is the reason for the inclusion of the balance sheet test in section 123, though it is still very far from an exact test. It is for the party asserting balance sheet insolvency to establish insolvency of that nature [37]. Whether or not the balance sheet test of insolvency is satisfied must depend on the available evidence as to the circumstances of the particular case. In that regard, the Issuer is not engaged in normal, on going trading activities, and therefore its present assets should be a better guide to its ability to meet its long term liabilities. Against that, the impact of factors relevant to its business in the period until the final redemption rate in 2045, such as currency movements, interest rates and the economy and housing market of the United Kingdom, must be considered. However, they are a matter of speculation rather than calculation or prediction on a scientific basis [38, 49]. As the Issuers liabilities can, as matters stand, be deferred until 2045, and as it is currently paying its debts as they fall due, the Court should proceed with the greatest caution in deciding that it is in a state of balance sheet insolvency [42]. Its ability to pay all its debts, present or future, may not be finally determined until much closer to 2045. The Conditions contain several mechanisms to ensure that liabilities in respect of principal can be deferred until that date. That being so, the Court cannot be satisfied that there will eventually be an inability on the part of the Issuer to pay its debts [49]. Though it is not required to decide the point because the appeal is dismissed, PECO agreements are of importance to the securitisation market. So the Court gives reasons for its decision to dismiss the cross appeal [51]. In that regard, the intended legal and commercial effects of the PECO, having regard to the wording of the documents pertaining to the transaction as a whole, point in the same direction: they do not affect the quantification of the Issuers liabilities. The meaning to be given to the language used by the parties on this point is not open to doubt. It would not be consistent with commercial good sense to depart from it [64].
This appeal concerns the application of the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co operation in respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Convention); in particular the scope of the jurisdiction conferred by article 11 in all cases of urgency on a contracting state where a child is present but not habitually resident. The 1996 Convention came into force in the United Kingdom on 1 November 2012 and has not previously been considered by the Supreme Court. The subject of the proceedings is a child, called Saleem in the judgment, who was born in January 2007. His parents are both from Morocco and hold Moroccan and British citizenship. The parents lived in England when Saleem was born but moved first to Saudi Arabia in 2009 and then to Morocco in 2011. The marriage broke down in December 2011. Saleem lived with his mother, who was granted residential custody by the local Family Court in 2012. His father was granted and exercised visiting rights. Saleems mother moved to England in January 2013 but Saleem remained in the care of his maternal grandparents until 14 September 2013, when the mother brought Saleem to England. Since then he has lived here with her and her new husband, whom she married in January 2013 and with whom she now has another child. Saleems father has had no face to face contact with him since. Saleems father applied on 23 September 2013 to the Moroccan Family Court for an order granting him residential custody of Saleem but this was refused on 16 January 2014. On 14 March 2014 the father brought proceedings in the High Court seeking an order that Saleem be made a ward of court and directions for his summary return to Morocco. The judge found that the father had not consented to the removal of Saleem from Morocco, which was wrongful, and that Saleem had been habitually resident in Morocco before his removal. He ordered the mother to return Saleem to Morocco. It was not argued before him that the effect of the 1996 Convention was that he had no jurisdiction to make the order he did. The mother appealed to the Court of Appeal, which held that the English courts did not have jurisdiction under the 1996 Convention, or on any other basis, on the facts of this case. In cases where a child was habitually resident in another state, as in Saleems case, jurisdiction only arose in cases of urgency under article 11. This was not such a case because the father could have made an immediate application to the Moroccan court for a return order. The Supreme Court unanimously allows the appeal, holding that it is open to the English courts to exercise the article 11 jurisdiction in cases of wrongful removal under the 1996 Convention, and it orders that the case be returned to the High Court for a decision as to whether it is appropriate to do so in the circumstances of this case. Lady Hale, with whom the other justices all agree, gives the only substantive judgment. The focus of the 1996 Convention is on the care and upbringing of the child and an order for the return of a child to the country of his or her habitual residence is a measure of protection falling within its scope [23]. Jurisdiction in wrongful removal cases remains with the authorities of the contracting state in which the child was habitually resident immediately before the removal (article 7) and article 11 supplies an additional jurisdiction to the courts of the territory where the child is present in the limited circumstances of cases of urgency [26]. An order made under article 11 can have extra territorial effect and can thus be contrasted with the purely ancillary power in article 20 of the Brussels II Revised Regulation [26 29]. It is not limited to cases of wrongful removal but extends to safeguarding children who are lawfully present in another country [30]. It can secure a valuable soft landing for children whose return to their home country is ordered under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (the 1980 Convention) [31]. It would place these objectives in jeopardy if the courts could not invoke the article 11 jurisdiction without first assuring themselves that it was impossible for the courts of the home jurisdiction to take action [32]. In the absence of this pre condition, the interpretation of article 11 demands a holistic approach. It is consistent with the overall purpose of the 1996 Convention that measures of protection which the child needs now should not be delayed, provided they are in support of rather than in opposition to the jurisdiction of the home country. It is a secondary, not the primary jurisdiction [33 34]. Although this approach does not emerge from either the Explanatory Report of Paul Lagarde in 1996 or from the Practical Handbook on the operation of the 1996 Convention, they should not be treated as if they were words in the Convention, and the focus of both is orders in the context of proceedings for abduction governed by the 1980 Convention, rather than cases to which the 1980 Convention does not apply [39]. An abduction case governed solely by the 1996 Convention is not invariably one of urgency but it is difficult to envisage a case in which the court should not consider it to be so and go on to consider whether it is appropriate to exercise the article 11 jurisdiction. The courts of the country where the child is present are often better placed to make orders about the childs return, as they can take steps to locate the child and exert any necessary coercive powers. The machinery of obtaining and then enforcing orders made by the home country may be cumbersome and slow. The childs interests may be compromised if the country where he or she is present is not able to take effective action in support of their return [39]. Accordingly the appeal is allowed. It is not right, however, simply to restore the judges order for return. The case should be returned to him for a new decision approached on the proper footing, namely whether the English court should exercise the jurisdiction conferred by article 11 of the 1996 Convention and, if so, in what way. The question will be answered on the basis of up to date information about Saleem and, if necessary, about Moroccan law, and attention can also be given to the important question of whether an order for interim contact between Saleem and his father should be made [41 44].
This case concerns the circumstances in which a court may make an order retrospectively declaring that steps taken by a claimant to bring a claim form to the attention of a defendant should be treated as good service. On 30 April 2009, Mr Abela and his two companies brought a claim for damages for fraud against Mr Baadarani in connection with a contract for the purchase of shares in an Italian company which the appellants contend were worthless, or were worth far less than the amount for which they were purchased. In September 2009, permission was granted for the claim form and all other documents to be served on Mr Baadarani at an address at Farid Trad Street in Beirut, Lebanon. No relevant bilateral treaty on service of judicial documents existed between the UK and Lebanon, and the Hague Service Convention was not applicable. Time for serving the claim form was extended until 31 December 2009 and permission was granted, if necessary, to serve Mr Baadarani personally at the Farid Trad Street address. The appellants gave evidence that they had used a notary to seek to serve Mr Baadarani at the Farid Trad Street address by instructing a service agent or clerk to attend that property over a period of four consecutive days. Mr Baadarani could not, however, be found. He denies that he has ever lived at the Farid Trad Street address. On 22 October 2009 a copy of the claim form and other relevant documents were delivered to the offices of Mr Baadaranis Lebanese lawyer in Beirut, Mr Azoury. That method of service had not been authorised by the judge and it is accepted it that was not good service under Lebanese law; Mr Azoury said that he had never been given instructions to accept service of documents on behalf of Mr Baadarani save in connection with certain Lebanese proceedings. Mr Azoury gave no indication of where Mr Baadarani could be served. Arabic translations of the relevant documents were delivered to the Foreign Process Section of the High Court in November 2009 together with certified translations. The appellants were informed in December 2009 that service on Mr Baadarani in Lebanon via diplomatic channels could take a further three months. In April 2010, Lewison J extended time for service of the claim form and granted permission for the claim form to be served on Mr Baadarani by alternative means, namely via his English or Lebanese solicitors. An application by the appellants that the steps already taken to serve Mr Baadarani be treated as good service was adjourned. Service was subsequently effected by alternative means on Mr Baadarnis English solicitors in May 2010. Mr Baadarani applied to set aside the various orders that had been made to extend time for service of the claim form and also sought to set aside the order permitting alternative service via Mr Baadaranis English and Lebanese solicitors. That application did not need to be determined because Sir Edward Evans Lombe made a declaration at the request of the appellants, pursuant to rules 6.37(5)(b) and/or 6.15(2) of the Civil Procedure Rules (CPR), that the steps taken on 22 October 2009 constituted good service of the claim form. The Court of Appeal reversed that decision and held that the various extensions of time for service of the claim form should not have been granted. The claim was, therefore, dismissed. Mr Abela and the other appellants appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. Lord Clarke gives the leading judgment. CPR 6.15(2) can be used retrospectively to validate steps taken to serve a claim form even if the defendant is not within the jurisdiction [21, 22]. Orders under CPR 6.15(1) and (2) can be made only if there is good reason to do so. The judges conclusion that there was a good reason to make an order under 6.15(2) constituted a value judgment based on an evaluation of a number of different factors. An appellate court should be reluctant to interfere with such a decision [23]. The Court of Appeal was wrong to say that the making of an order under CPR 6.15(2) in a service out case is an exorbitant power. It is not appropriate to say that such an order may only be made in exceptional circumstances, at any rate in a case in which there is no danger of subverting any international convention or treaty. The test under CPR 6.15(2) is simply whether there is good reason to make such an order. [33, 34, 45, 53]. CPR 6.15(2) applies only in cases where none of the methods of services permitted by CPR 6.40(3) have been successfully adopted, including any method of service permitted by the law of the country in which the defendant is to be served. A claimant seeking an order under CPR 6.15(2) is not, therefore, required to show that the method of service used was good service under local law. The Court of Appeal was, in any event, wrong to say that the judge had concluded that service of the documents on Mr Azoury was good service under Lebanese law; if the judge had reached that conclusion, there would have been no reason for him to make an order under CPR 6.15(2) [24, 32, 46]. The only bar to the use of CPR 6.15(2), if otherwise appropriate, is the rule, under CPR 6.40(4) that nothing in a court order may authorise any person to do anything which is contrary to the law of the country where the claim form is to be served. Although delivery of the claim form and other documents to Mr Azoury was not good service on Mr Baadarani under Lebanese law, it has not been suggested that it was contrary to Lebanese law [24]. The mere fact that the defendant learned of the existence and content of the claim form cannot without more, constitute a good reason to make an order under CPR 6.15(2). That is, however, a critical factor. Service has a number of purposes, but the most important is to ensure that the contents of the document served are communicated to the person served. [36]. The fact that a claimant has delayed before issuing the claim form is not, save perhaps in exceptional circumstances, relevant when determining whether an order should be made under CPR 6.15(2). The focus must be on the reason why the claim form cannot or could not be served be served within the period of its validity [48]. The judge was entitled to conclude that an order under CPR 6.15(2) was appropriate. The judge correctly took account of the fact that Mr Baadarani, through his English and Lebanese lawyers, was fully apprised of the nature of the claim being brought against him. The claim form and other documents were delivered to him within the initial period of validity of the claim form. He also took account of the fact that service in Lebanon via diplomatic channels had proved impractical and that Mr Baadarani was unwilling to cooperate by disclosing his address to the appellants. Whilst Mr Baadarani had no obligation to disclose his address, his refusal to cooperate was a highly relevant factor in determining whether there was a good reason to make an order under CPR 6.15(2). The judge was entitled to take the view that an order under CPR 6.15(2) was appropriate notwithstanding the three and a half month delay between the issue of the claim form and the application for permission to service the claim out of the jurisdiction, and despite the fact that the claim against Mr Baadarani may be time barred [37, 39, 40].
The question in this appeal is whether a court order must always be obtained before clinically assisted nutrition and hydration (CANH), which is keeping a person with a prolonged disorder of consciousness (PDOC) alive, can be withdrawn, or whether, in some circumstances, this can occur without court involvement. In June 2017 Mr Y, an active man in his fifties, suffered a cardiac arrest which consequently led to extensive brain damage due to lack of oxygen. He never regained consciousness following the cardiac arrest and required CANH to keep him alive. His treating physician concluded that, even if he regained consciousness, he would have profound disability and would be dependent on others to care for him for his remining life. A second opinion from a consultant and professor in Neurological Rehabilitation considered Mr Y to be in a vegetative state without prospect of improvement. Mrs Y and their children believed that he would not wish to be kept alive given the doctors views about his prognosis. The clinical team and the family agreed that it would be in Mr Ys best interests for CANH to be withdrawn, which would result in his death within two to three weeks. On 1 November 2017, the NHS Trust sought a declaration in the High Court that it was not mandatory to seek the courts approval for the withdrawal of CANH from a patient with PDOC when the clinical team and the patients family agreed that it was not in the patients best interests to continue treatment and that no civil or criminal liability would result if CANH were withdrawn. The High Court granted a declaration that it was not mandatory to seek court approval for withdrawal of CANH from Mr Y where the clinical team and Mr Ys family were in agreement that continued treatment was not in his best interests. The judge granted permission to appeal directly to the Supreme Court. In the intervening period Mr Y died but the Supreme Court determined that the appeal should go ahead because of the general importance of the issues raised by the case. The Supreme Court unanimously dismisses the appeal. Lady Black gives the sole judgment with which the other Justices agree. It has not been established that the common law or the European Convention on Human Rights (ECHR) give rise to the mandatory requirement to involve the court to decide upon the best interest of every patient with PDOC before CANH can be withdrawn [126]. The fundamental question facing a doctor, or a court, considering treatment of a patient who is not able to make his or her own decision is not whether it is lawful to withdraw or withhold treatment, but whether it is lawful to give it. It is lawful to give treatment only if it is in the patients best interests. If a doctor carries out treatment in the reasonable belief that it will be in the patients best interests, he or she will be entitled to the protection from liability conferred by section 5 of the Mental Capacity Act (MCA) 2005 [92]. The starting point on whether there is a common law requirement to seek a court order is the House of Lords decision in Airedale NHS Trust v Bland [1993] A.C. 789. However, there can be no question of the House of Lords in that case having imposed a legal requirement that in all cases of patients in a persistent vegetative state an application must be made to court before CANH can be withdrawn. Instead they recommended as a matter of good practice that reference be made to the court [93 94]. Therefore, when the MCA 2005 came into force in 2007 there was no universal requirement, at common law, to apply for a declaration prior to withdrawing CANH and the MCA itself did not single out any class of decisions which must always be placed before the court [95]. The MCA 2005 Code of Practice (the Code) does speak of applications to court in cases such as the present but does so in a contradictory fashion on the issue of whether such applications are mandatory [97]. Further, no requirement to apply to court can be found in the post MCA 2005 case law [98]. The ECHR does not generate a need for an equivalent provision to be introduced [102]. The European Court of Human Rights (ECtHR) decision in Lambert v France 62 EHRR 2 and subsequent cases have repeatedly set out factors relevant to the administering or withdrawing of medical treatment. These are factors which the UK has complied with. First, the UK has a regulatory framework compatible with the requirements of article 2 in the form of the combined effect of the MCA 2005, the Code, and professional guidance, particularly that of the GMC [105]. Second, the MCA 2005 requires doctors to take into account the patients express wishes and those of people close to him, as well as the opinions of other medical personnel [108]. Third, the opportunity to involve the court is available whether or not a dispute is apparent [109]. Lambert and subsequent decisions show that the ECtHR does not regard it as problematic, in principle, that a decision to remove CANH from a patient with PDOC should be made by a doctor without obligatory court involvement [110]. CANH is medical treatment and it is not easy to explain, therefore, why it should be treated differently from other forms of life sustaining treatment [116]. In any event, it is difficult to accept that one can delineate patients with PDOC from other patients in such a way as to justify judicial involvement being required for the PDOC patients but not the others. In all cases, the medical team make their treatment decisions by determining what is in the patients best interest [119]. If it transpires that the way forward is finely balanced, there is a difference of medical opinion, or a lack of agreement from persons with an interest in the patients welfare, a court application can and should be made [125].
These appeals arise from tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights (the Convention), and whether the code published by the Director of Public Prosecutions (the DPP) relating to prosecutions of those who are alleged to have assisted suicide is lawful. Until 1961 suicide was a crime in England and Wales and encouraging or assisting a suicide was therefore also a crime. By section 1 of the Suicide Act 1961, suicide ceased to be a crime. However, section 2 of that Act (Section 2) provided that encouraging or assisting a suicide remained a crime, carrying a maximum sentence of 14 years in prison, but that no prosecutions could be brought without the permission of the DPP. Section 2 was amended by Parliament in 2009, but its basic effect remains unchanged. Following a decision of the House of Lords in 2009, the DPP published Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide (the 2010 guidelines) setting out his policy in relation to prosecutions under Section 2. In the first appeal, Mr Nicklinson suffered a catastrophic stroke some nine years ago, since when he was completely paralysed, save that he could move his head and his eyes. For many years, he had wanted to end his life, but could not do so without assistance, other than by self starvation, a protracted, painful and distressing exercise. He wanted someone to kill him by injecting him with a lethal drug, but if necessary he was prepared to kill himself by means of a machine invented by a Dr Nitschke which, after being loaded with a lethal drug, could be digitally activated by Mr Nicklinson, using a pass phrase, via an eye blink computer. Mr Nicklinson applied to the High Court for (i) a declaration that it would be lawful for a doctor to kill him or to assist him in terminating his life, or, if that was refused, (ii) a declaration that the current state of the law in that connection was incompatible with his right to a private life under article 8 of the Convention (Article 8). The High Court refused Mr Nicklinson both forms of relief; he then declined all food and died of pneumonia on 22 August 2012. Mr Nicklinsons wife, Jane, was then added as a party to the proceedings and pursued an appeal. Mr Lamb was added as a claimant in the Court of Appeal. Since a car crash in 1991, Mr Lamb has been unable to move anything except his right hand. His condition is irreversible, and he wishes to end his life. He applied for the same relief sought by Mr Nicklinson. The Court of Appeal dismissed the appeal brought by Mr Nicklinson and Mr Lamb. In the second appeal an individual known as Martin suffered a brainstem stroke in August 2008; he is almost completely unable to move and his condition is incurable. Martin wishes to end his life by travelling to Switzerland to make use of the Dignitas service, which, lawfully under Swiss law, enables people who wish to die to do so. Martin began proceedings seeking an order that the DPP should clarify, and modify, his the 2010 Policy to enable responsible people such as carers to know that they could assist Martin in committing suicide through Dignitas, without the risk of being prosecuted. Martins claim failed in the High Court, but his appeal was partially successful, in that the Court of Appeal held that the 2010 Policy was not sufficiently clear in relation to healthcare professionals. Mrs Nicklinson and Mr Lamb have appealed to the Supreme Court in the first appeal and the DPP has appealed and Martin has cross appealed in the second appeal. The Supreme Court, by a majority of seven to two dismisses the appeal brought by Mr Nicklinson and Mr Lamb. It unanimously allows the appeal brought by the DPP, and dismisses the cross appeal brought by Martin. Each of the nine Justices gives a judgment. On the first appeal, the Supreme Court unanimously holds that the question whether the current law on assisted suicide is incompatible with Article 8 lies within the United Kingdoms margin of appreciation, and is therefore a question for the United Kingdom to decide. Five Justices (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) hold that the court has the constitutional authority to make a declaration that the general prohibition on assisted suicide in Section 2 is incompatible with Article 8. Of those five, Lord Neuberger, Lord Mance and Lord Wilson decline to grant a declaration of incompatibility in these proceedings, but Lady Hale and Lord Kerr would have done so. Four Justices (Lord Clarke, Lord Sumption, Lord Reed and Lord Hughes) conclude that the question whether the current law on assisting suicide is compatible with Article 8 involves a consideration of issues which Parliament is inherently better qualified than the courts to assess, and that under present circumstances the courts should respect Parliaments assessment. On the second appeal, the Supreme Court unanimously allows the DPPs appeal. The exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case are all proper and constitutionally necessary features of the system of prosecution in the public interest. In light of the Supreme Courts conclusion on the second appeal, Martins cross appeal does not arise. The first appeal: is the present law on assisting suicide incompatible with Article 8? The Supreme Court unanimously holds that, according to the case law of the European Court of Human Rights, the question whether to impose a general ban on assisted suicide lies within the margin of appreciation of the United Kingdom [66, 154, 218, 267, 339]. Whether the current law is incompatible with Article 8 is, therefore, a domestic question for the United Kingdom courts to decide under the Human Rights Act 1998. It is also the unanimous view of the court that Section 2 engages Article 8, as it prevents people who are physically unable to commit suicide without assistance from determining how and when they should die. Accordingly, it can only be a justified interference if it satisfies the requirements of Article 8(2), ie that it is necessary in a democratic society for one or more of the purposes specified in that article, which in the present context would be for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others [79, 159, 216, 335]. Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr and Lord Wilson hold that, within the constitutional settlement of the United Kingdom, the court has the constitutional authority to make a declaration of incompatibility in relation to the blanket ban on assisted suicide [76, 191, 299, 326]. Lord Neuberger, Lord Mance and Lord Wilson conclude that, while the question of assisted suicide is a difficult, sensitive and controversial issue on which great significance will be attached to the judgment of the democratically informed legislature, this does not mean that the legislative judgment is necessarily determinative [76, 191]. However, while the sensitive and controversial nature of this issue does not justify the court ruling out the possibility that it could make a declaration of incompatibility, it would be inappropriate for a court to decide whether Section 2 is incompatible with Article 8 before giving Parliament the opportunity to consider the position in the light of this judgment [116]. The main justification advanced for an absolute prohibition on assisted suicide is the perceived risk to the lives of vulnerable individuals who might feel themselves a burden to their family, friends or society and might, if assisted suicide were permitted, be persuaded or convince themselves that they should undertake it, when they would not otherwise do so [81, 171]. A system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled and informed wish to die and for his or her suicide then to be organised in an open and professional way would arguably provide greater and more satisfactory protection for the vulnerable, than a system which involves a lawyer from the DPPs office inquiring, after the event, whether the person who had killed himself or herself had such a wish [108, 186]. The interference with Mr Nicklinsons and Mr Lambs Article 8 rights is grave and the arguments in favour of the current law are by no means overwhelming [111]. However, even had it been appropriate to issue a declaration of incompatibility at this time, Lord Neuberger, Lord Mance and Lord Wilson would not make a declaration in these proceedings. In the courts below the main focus was on Mr Nicklinsons submissions that necessity should be recognised as a defence to murder, whereas before the Supreme Court the case advanced was that a machine like Dr Nitschkes would offer a feasible means of suicide for those who have an autonomous wish but require assistance to do so. They are not confident that the court has the necessary evidence on, or that the courts below or the Secretary of State has had a proper opportunity to address, this issue [119 121, 153]. Lady Hale and Lord Kerr would have issued a declaration of incompatibility. It is clear that Article 8 confers a right on an individual to decide by what means and at what point his or her life will end, provided that he or she is capable of freely reaching a decision. They hold that, in making no exception for those whose expressed wish to die reflects an autonomous desire rather than undue pressure, the current ban on assisting suicide is incompatible with Article 8 [300, 326]. Lady Hale draws attention to the similarity between a procedure for identifying those who have made such an autonomous decision but require some help to carry it out and other life and death decisions currently made in the Family Division of the High Court and the Court of Protection. Lord Kerr emphasises that when courts make a declaration of incompatibility, they do precisely what Parliament, through the Human Rights Act 1998, has empowered them to do, and remit the issue to Parliament for a political decision informed by the courts view of the law [343]. The remission of the issue to Parliament does not involve the court making a moral choice which is properly within the province of the democratically elected legislature [344]. Lord Kerr would also hold that there was no rational connection between the aim of Section 2(1) and the interference with the Article 8 right [350]. Lord Sumption, Lord Hughes, Lord Reed and Lord Clarke accept that the courts have jurisdiction under the Human Rights Act to determine whether the current universal ban on assisting suicide is compatible with Article 8, but consider that the question turns on issues which Parliament is in principle better qualified to decide, and that under present circumstances the courts should respect Parliaments assessment. The question requires a judgment about the relative importance of the right to commit suicide and the right of the vulnerable, especially the old and sick, to be protected from direct or indirect pressure to do so. It is unlikely that the risk of such pressure can ever be wholly eliminated. Therefore the real question is how much risk to the vulnerable is acceptable in order to facilitate suicide by others who are free of such pressure or more resistant to it. This involves important elements of social policy and a moral value judgment, which are inherently more suitable for decision by Parliament as the representative organ of the constitution. This is for three reasons: (1) the issue involves a choice between two fundamental but mutually inconsistent moral values, the sanctity of life and the principle of autonomy, which are sensitive to a societys most fundamental collective moral and social values and upon which there is no consensus in our society, (2) Parliament has made the relevant choice on a number of occasions in recent years, and (3) the Parliamentary process is a better way of resolving issues involving controversial and complex questions of fact arising out of moral and social dilemmas in a manner which allows all interests and opinions to be expressed and considered [228 232]. The second appeal: is the 2010 Policy lawful? The Supreme Court unanimously allows the DPPs appeal. Section 2(4) of the Suicide Act 1961 precludes any prosecution of a person who has allegedly contravened Section 2 without the DPPs consent [39]. It is one thing for the court to decide that the DPP must publish a policy, and quite another for the court to dictate what should be in that policy [141]. The exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case, are all proper and constitutionally necessary features of the system of prosecution in the public interest [249, 271]. During these proceedings, counsel for the DPP indicated that under the 2010 Policy a stranger who is not profiteering from his or her action, but assisting to provide services which, if provided by a close relative, would not attract a prosecution, was most unlikely to be prosecuted. The Director will be able to consider further whether that indication should stand and whether, if so, the 2010 Policy needs amendment, without it being appropriate to order her to undertake any such review [146, 193, 251 and 323]. In light of the courts conclusion on the second appeal, Martins cross appeal does not arise. Further observations Lord Sumption summarises [255(2), (3) and (4)] the principal respects in which the law already allows for the alleviation of suffering in the terminally ill, in view of the fact that they appear to be widely misunderstood. These paragraphs are specifically endorsed by Lord Neuberger [137], Lady Hale [324] and Lord Mance [194].
The central issue on this appeal is whether the Government of Pakistan was a party to and bound by an arbitration agreement, so that an award made by an arbitral tribunal under that agreement can be enforced against the Government of Pakistan in the United Kingdom. The appellant company (Dallah) is a member of a group providing services for the Holy Places in Saudi Arabia. In July 1995, it concluded a Memorandum of Understanding with the respondent Government (the Government) for the provision by Dallah of housing for pilgrims. In January 1996 the Awami Hajj Trust (the Trust) was established and subsequently continued by various ordinances of the President of Pakistan. In September 1996, after Dallah put forward a revised proposal which differed from the Memorandum of Understanding and after further negotiations with the Government, an agreement between Dallah and the Trust was signed (the Agreement). The Agreement contained an arbitration clause, whereby any dispute between Dallah and the Trust arising out of the Agreement was to be settled by arbitration. In December 1996, the ordinances lapsed and were not renewed, and Trust ceased to exist as a legal entity. Dallah invoked arbitration against the Government in May 1998. On 23 June 2006 an International Chamber of Commerce arbitral tribunal sitting in Paris made an award in favour of Dallah in the sum of US$20,588,040 against the Government. Dallah applied to the High Court in England for leave to enforce the award in this country. The award was an award within the meaning of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. Article V(1)(a) of the Convention and s.103 of the Arbitration Act 1996, which transposes Article V(1)(a) in the UK, provide that enforcement of an award may be refused if the arbitration agreement was not valid under the applicable law, which is the case, in particular, if the person against whom enforcement is sought was not a party to the agreement. The applicable law was in this case French law, where the arbitral tribunal sat and made its award. The High Court held that the Government was not a party to the Agreement or therefore to the arbitration agreement and refused leave to enforce the award. The Court of Appeal upheld the decision and Dallah appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. It holds that the Government was not a party to the arbitration agreement. An initial issue was the status and weight of the arbitral tribunals own decision that it had jurisdiction, based on its conclusion that the Government was a party to the Agreement and so to the arbitration agreement. The Supreme Court, while recognising that a tribunal has jurisdiction to determine its own jurisdiction for its own purposes, held that a court, whether within the country where the tribunal is located or within a foreign country where an attempt is made to enforce the award, can and must revisit the question of jurisdiction. The arbitral tribunal could only have jurisdiction by consent, and could not give itself jurisdiction, if there was no relevant consent under the applicable law. Whether consent exists is an issue subject to ordinary judicial determination. Article V of the Convention safeguards the right of a party which has not agreed to arbitration to object to the jurisdiction of the tribunal. The language of Article V(1)(a) of the Convention and s.103(2)(b) of the 1996 Act requires the English court to revisit the tribunals decision on jurisdiction where the person resisting enforcement maintains that it was not party to any relevant arbitration agreement under the applicable law. [26] [31]; [79] [104] The central issue in the case was whether the Government could establish that, applying French law principles, there was no common intention on the part of the Government and Dallah, such as would make the Government a party to the Agreement. The Court held that the Government had established that there was no such common intention, having regard amongst other matters to: The clear change in the proposed transaction from an agreement with the Government (the Government was a party to the initial Memorandum of Understanding) to an agreement with the Trust. [134] The deliberate structuring of the Agreement to be between Dallah and the Trust: the Governments only role under the Agreement was to guarantee the Trusts loan obligations and to receive a counter guarantee from the Trust. Further, Dallah was throughout the transaction advised by lawyers who must have understood the difference between an agreement with a State entity and an agreement with the State itself. [42] [43]; [133] [136] The fact that the Trust was established as a body corporate capable of holding property and of suing and being sued. [135] The fact that it was the Trust which commenced proceedings against Dallah in Pakistan in 1997. [137] A final issue in the case concerned the nature and existence of any discretion to be found in Article V(1) and s.103(2), which provide that recognition or enforcement of the award may be refused if the arbitration agreement is proved to be invalid. Dallah submitted that even if the Government could prove that it is not bound by the Agreement, the Court should exercise its discretion under Article V(1) and s.103(2) to enforce the award. The Court refused to do this, saying that, in the absence of some fresh circumstance such as another agreement, it would be remarkable if the word may enabled a court to recognise or enforce an award which it found to have been made without jurisdiction. [68]
The Appellant, Mr OBrien, is a retired self employed barrister who also worked on a daily fee paid basis as a part time judge of the Crown Court between 1978 and 2005. At the material time domestic law entitled salaried judges (including part time judges) to a pension based on their final years salary and number of years service, but made no pension provision for fee paid part time judges. Although employers were prevented from treating part time workers less favourably than full time workers under Council Directive 97/81/EC (the directive), the Regulations which gave effect to the directive (the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551) which came into force on 1 July 2000) expressly did not apply to fee paid part time judges. Mr OBrien brought proceedings against the Ministry of Justice claiming an entitlement to a judicial pension. The case reached the Supreme Court, which referred to the Court of Justice of the European Union (CJEU) the question of whether it was permissible for national law to draw a distinction between salaried and daily fee paid judges for the purposes of pension provision. The CJEU held that it was not permissible, and the Supreme Court found that Mr OBrien was therefore entitled under the directive and national law to a pension on terms equivalent to a comparable full time judge. The Supreme Court then remitted the case to the Employment Tribunal to determine the amount of the pension to which Mr OBrien was entitled. There the question arose whether, in calculating the amount of his pension, account should be taken of the whole of his service since the beginning of his appointment in 1978 (a period of 27 years), or only his service since 7 April 2000, the deadline for transposing the directive (a period of less than five years). The Employment Tribunal held that the calculation should take into account the whole of his service, but the Employment Appeal Tribunal held the contrary. The Court of Appeal upheld the decision of the Employment Appeal Tribunal. Mr OBrien now appeals to the Supreme Court. The Supreme Court unanimously decides to refer a question to the CJEU. The terms of the reference are set out by Lord Reed. The Supreme Court is not persuaded that the case of either appellant or respondent is clearly right and is therefore under a duty to refer the questions in issue to the CJEU. As a matter of EU law when a new rule of law comes into force, it cannot apply to legal situations which have arisen and become definitive prior to that date, but can apply to the future effects of a situation which arose under the old law (European Commission v Moravia Gas Storage AS (Case C 596/13 P). This principle was applied in Istituto Nazionale della Previdenza Sociale (INPS) v Bruno (Joined Cases C 395/08 and C 396/08), where it was held that periods of employment completed before the directive came into force should be taken into account in calculating whether an employees length of service qualified for a pension. The entitlement to a pension (or lack thereof) based on periods of employment under the old law was not a situation which arose and became definitive at the time of the employment, but was a future effect of that employment. Mr OBrien argues that under this line of reasoning, periods of employment before the directive entered into force are to be taken into account when applying the directive in situations which arise after it should have been transposed, not only in relation to qualification for a retirement pension (which the Ministry does not dispute), but also in relation to the quantification of that pension, where its quantification is based on the employees length of service. However, the CJEU has also treated occupational pensions as a deferred form of pay, the entitlement to which accrues continuously over the employees service (Ten Oever v Stichting Bedrijfspensionenfonds voor her Glazenwassers en Schoonmaakbedrijf (Case C 109/91). In Ten Oever the Court referred to its judgment in Barber v Guardian Royal Exchange Assurance Group judgment (Case C 262/88) on the requirement for equal treatment of men and women in occupational pensions (pursuant to a different EU law provision), and held that such equal treatment could be claimed only in relation to benefits in respect of periods of employment subsequent to the date of the Barber judgment. The Ministry argued that following Ten Oever an occupational pension constitutes deferred pay for past work, and the workers entitlement to that pension accrues and is fixed at the time of the work for which it constitutes pay; the entitlement is not determined when the person retires and the pension becomes payable. The EU law principle of non retroactivity therefore prevents the right which accrued (or did not accrue) at the time of service from being affected retrospectively by a change in the law. On that basis, it is argued that Mr OBriens non entitlement to a pension in respect of his first 22 years of service was definitively established before the directive entered into force. In the context of these two approaches, the Supreme Court is inclined to think that the effect of the directive is that it is unlawful to discriminate against part time workers when a retirement pension falls due for payment. The directive applies where the pension falls due for payment after the directive has entered into force. In so far as part of the period of service took place prior to the directives entry into force, the directive applies to the future effects of that situation. However, the CJEU has not yet considered the argument that if, following the Ten Oever line of authority, an occupational pension is treated as deferred pay, the right to which is acquired at the time of the work to which the pay relates, then it follows from the general principle of non retroactivity that the directive does not alter or affect rights acquired (or, in Mr OBriens case, not acquired) before it was brought into force, there being no provision in the directive which overrides that general principle. Although the majority of the court are inclined to think that Ten Oever was concerned with the exceptional Barber limitation, which does not arise in the present context, the correct approach does not appear to the Supreme Court to be sufficiently clear. The following question is therefore referred to the CJEU: Does Directive 97/81, and in particular clause 4 of the Framework Agreement annexed thereto concerning the principle of non discrimination, require that periods of service prior to the deadline for transposing the Directive should be taken into account when calculating the amount of the retirement pension of a part time worker, if they would be taken into account when calculating the pension of a comparable full time worker?
The issue in this appeal is whether the National Health Service or local authorities (with means tested contributions from clients) are responsible for paying for the work done by registered nurses in social rather than health care settings. Section 49 of the Health and Social Care Act 2001 provides that a local authority is not required to fund nursing care by a registered nurse, defined in subsection (2) as services involving (a) the provision of care, or (b) the planning, supervision or delegation of the provision of care, other than any services which having regard to their nature and the circumstances in which they are provided, do not need to be provided by a registered nurse. The owner of a care home providing nursing services to residents is obliged by regulation to ensure that a registered nurse is working at the care home at all times. This appeal concerns the funding of nursing care for residents who require some nursing care but for whom healthcare is not a primary need. Local Health Boards in Wales (the Boards) decided to pay a flat weekly rate, following a survey which asked nurses to record and categorise the time they spent of different tasks: direct and indirect nursing care time, non nursing care time and other time (which included stand by time, paid breaks and time receiving supervision). The weekly rate excluded payment for time in the last two categories on the basis that these services fell within the exception in s 49(2). The decision of the Boards to interpret s 49(2) in this way was challenged by eleven owners and operators of care homes in Wales, and all (save one) of the Welsh local authorities were joined as interested parties. The High Court quashed the decision, holding that the Boards should fund all the services in fact provided by a registered nurse. The Boards conceded that they should have covered nurses stand by time but appealed the finding in respect of services which need not have been performed by a registered nurse. The Court of Appeal by a majority allowed the Boards appeal. The local authorities appealed to the Supreme Court. The Supreme Court unanimously allows the local authorities appeal. It holds that the Boards have misinterpreted s 49(2) and that their decision must be quashed and re taken in the light of the guidance given in the judgment. Lady Hale gives the only substantive judgment. The background to the introduction of section 49 was the anomaly that nursing care was either provided free by the NHS or bought in by the local authority or residents depending on where it was provided. It was intended to shift the boundary further in the direction of NHS funding, but the words at the end of s 49(2) could not be ignored [26]. If Parliament had wanted to restrict the definition of nursing care by a registered nurse to tasks which could only be performed by a registered nurse then it could and would have said so [36]. Equally, if it had wanted to prohibit local authorities from paying for anything done by a registered nurse in a care home, it also could and would have said this [37]. Instead s 49 began with the broad concept of any services provided by a registered nurse and then limited those services in two ways. The first was to services which involve the care of residents ie looking after them, including personal and social care. The second was to exclude services which having regard to their nature and the circumstances in which they are provided do not need to be provided by a registered nurse. This latter category envisages that there will also be circumstances in which some personal or non nursing care will need to be provided by a registered nurse, care which is associated with or ancillary to the nursing care she is providing [38]. The provision of an overall, holistic, person centred plan for each resident who needs some nursing care requires the nurse to engage in social and personal tasks as part of that care. Some caring tasks cannot sensibly be parcelled up between nursing and non nursing care. It is a matter of fact, and one for the decision makers, what part of the care provided by registered nurses will fall within this definition [39 41]. Time spent on paid breaks and on receiving supervision is, however, a necessary part of providing the services registered nurses are there to provide [42]. Accordingly, the correct interpretation of s 49 is that nursing care by a registered nurse covers (a) time spent directly or indirectly on nursing care, in the sense of care which can only be provided by a registered nurse; (b) paid breaks; (c) time receiving supervision; (d) stand by time; and (e) time spent on providing, planning, supervising or delegating the provision of other types of care which in all the circumstances ought to be provided by a registered nurse because they are ancillary to or closely connected with or part and parcel of the nursing care which she has to provide [44]. The Boards decision was therefore based on a misinterpretation of s 49(2) and must be quashed and retaken in the light of this guidance, ideally after negotiation with all the parties governed by the legislation and with an interest in the outcome [46].
On 18 January 2005, at about 2.20 am, a tragic incident occurred on the A282, a six lane carriageway which links the Dartford Crossing bridge and tunnel with the M25 motorway. Mr Jones was driving a Highways Agency gritter along the nearside carriageway. Slightly ahead of him, in the central lane of the carriageway, was an articulated lorry driven by Mr Brian Nash. Ahead of him there was a car which was parked on the hard shoulder of the carriageway. As Mr Nashs lorry approached it a man ran from near the car into the middle of the central lane, turned towards the lorry, stood in its path and raised his arms. Mr Nash braked, but he was unable to avoid hitting the man, who was killed instantly. As a result of the braking the rear nearside corner of the articulated lorry swerved into the path of the gritter vehicle. There was a collision between the two vehicles, as a result of which the cab of the gritter was destroyed and Mr Jones was thrown from it onto the roadway. He suffered very severe injuries and now requires full time care. The man who ran onto the carriageway was Mr Barry Hughes. The inquest into his death returned an open verdict. But the obvious inference from his actions was that his intention was to kill himself [1, 2]. Acting by his mother Mrs Maureen Caldwell, Mr Jones applied to the Criminal Injuries Compensation Authority (the CICA) for an award of compensation under the Criminal Injuries Compensation Scheme 2001 (the Scheme). The CICA rejected the application essentially on the basis that in terms of the Scheme Mr Jones was not a victim of a crime of violence [3]. Mr Jones appealed to the First tier Tribunal (the FTT), arguing that Mr Hughes had committed two criminal offences, one of which is no longer relevant in this appeal. The FTT dismissed his appeal in relation to the other offence of inflicting grievous bodily harm contrary to section 20 of the Offences against the Person Act 1861 (section 20). It did so because it was not satisfied that Mr Hughes intended to cause harm, or was reckless as to whether harm of whatever degree might be caused by his actions, when he ran out into the carriageway. Mr Jones unsuccessfully sought judicial review of that decision in the Upper Tribunal (Administrative Appeals Chamber) but successfully appealed to the Court of Appeal. The matter was remitted to a differently constituted FTT to reconsider the issue of recklessness in the light of the reasons given in the judgment of the Court of Appeal [4 6]. The parties agreed that the appeal raised the following issues for determination by the Supreme Court: (1) whether an applicant who satisfies the CICA on the balance of probabilities that he has sustained injury directly attributable to an offence under section 20 is necessarily a victim of a crime of violence for the purposes of the Scheme; and (2) if the answer to (1) is no, whether a person who satisfies the CICA on the balance of probabilities that he has sustained injury directly attributable to an offence under section 20 in circumstances such as those in the present case is a victim of a crime of violence for the purposes of the Scheme. The Supreme Court unanimously allows the appeal and restores the decision of the FTT. While every sympathy must be felt for the victim, Mrs Caldwell and their family, the terms of the Scheme do not permit an award of compensation to be made in this case [28]. The lead judgment is given by Lord Hope with whom all the other justices agree. Lord Carnwaths judgment contains observations about procedural aspects of the case among other matters. Built into the phrase a crime of violence there are two questions that the tribunal must consider. The first is whether, having regard to the facts which have been proved, a criminal offence has been committed. That question is for the tribunal, having informed itself as to what the law requires for proof of that offence, to determine as a matter of fact. The second is whether, having regard to the nature of the criminal act, the offence that was committed was a crime of violence. This may also raise an issue of fact for the tribunal to determine, depending on what the law requires for proof of the offence. The range of acts that fall within the broad definition may vary quite widely, so the question whether there was a crime of violence will have to be determined by looking at the nature of what was done. But in this case the words of the statute speak for themselves. To wound or inflict any grievous bodily harm on another person unlawfully or recklessly, foreseeing that physical harm to some other person will be the consequence of his act, is a crime in terms of section 20. It is also a violent act. So too is the unlawful or reckless application of physical force of any kind to the person, directly or indirectly, so that they suffer injury. The crime that section 20 defines will always amount to a crime of violence for the purposes of the Scheme [16 18]. Fairly read, the reason why Mr Jones appeal to the FTT failed was that it was not proved that an offence of the kind described by section 20 had been committed by Mr Hughes [20]. The FTT appreciated that the question it had to consider first was whether an offence under section 20 had been committed. It identified correctly the tests that had to be applied and reached the conclusion that it was not satisfied that Mr Hughes did commit that offence. In particular, the FTT was not satisfied that the facts of the case demonstrated that Mr Hughes intended to cause harm or was reckless as to whether harm of whatever degree might be caused by his actions [24, 26]. The judgment of the Court of Appeal taken overall fails to identify a flaw in the reasoning of the FTT which could be said to amount to an error of law [26]. It appears to have been unwilling to accept that the question that the FTT was asking itself was whether it could be satisfied that a section 20 offence had been committed rather than whether Mr Hughes actions amounted to a crime of violence. It was also unduly critical of the FTTs reasoning [25]. There are signs too that it allowed itself to be unduly influenced by its own view that it was highly improbable that anyone who runs into the path of traffic on a busy motorway will not at the least foresee the possibility of an accident and of consequential harm being caused to other road users. The question whether Mr Hughes did actually foresee this possibility was for the FTT to answer, not the Court of Appeal [26]. It is a curious feature of this appeal that the issues which both sides say are for the court to consider assume that the FTT held that a section 20 offence had been committed. The question whether a section 20 offence is necessarily a crime of violence admits of only one answer. But the FTT never got to the stage of asking itself that question because of its finding, on the facts, that a section 20 offence had not been committed [27]. Where, as here, the interpretation and application of a specialised statutory scheme has been entrusted by Parliament to the new tribunal system, an important function of the Upper Tribunal is to develop structured guidance on the use of expressions which are central to the scheme, and so as to reduce the risk of inconsistent results by different panels at the First tier level. It is primarily for the tribunals, not the appellate courts, to develop a consistent approach to issues such as the two questions built into the phrase a crime of violence, bearing in mind that they are peculiarly well fitted to determine them. A pragmatic approach should be taken to the dividing line between law and fact, so that the expertise of tribunals at the First tier level and that of the Upper Tribunal can be used to best effect. An appeal court should not venture too readily into this area by classifying issues as issues of law which are really best left for determination by the specialist appellate tribunals [16, 41, 47].
The respondent, Mr Hayward, suffered an injury at work in June 1998. Mr Hayward brought proceedings and the employer admitted liability, but he deliberately and dishonestly exaggerated the extent of the injury in order to achieve a higher settlement figure of 134,973.11 from the appellant, the employers liability insurer. At the time of the settlement in October 2003, the insurer had video evidence of the exaggeration. But by February 2009, the insurer had gathered further evidence showing that Mr Hayward had fully recovered a full year before the settlement. It sought to set aside the settlement and claimed damages for deceit. Mr Hayward applied for summary judgment on the basis that the claim had already been compromised in the previous proceedings. His application for summary judgment or strike out was successful before the County Court, but overturned by the Court of Appeal. The insurers claim was therefore allowed to proceed. On the claim itself, the judge found that Mr Hayward had deliberately exaggerated the effects of his injury, set aside the settlement agreement, and awarded Mr Hayward a much reduced sum of 14,720. A second Court of Appeal allowed Mr Haywards appeal, holding that the insurer could not be allowed to set aside the settlement agreement since it was aware of Mr Haywards fraud at that time. The Supreme Court unanimously allows the insurers appeal, restoring the judges conclusion that the settlement agreement should be set aside and that Mr Hayward be paid the reduced sum. Lord Clarke gives the lead judgment. Lord Toulson gives a concurring judgment. The other Justices agree with both judgments. The critical issue on appeal is whether, in order to show the requisite influence by or reliance on the misrepresentation in a claim to set aside a compromise on the basis of fraudulent misrepresentation, the defrauded representee (i.e. the insurer in this case) must prove that it settled because it believed that the misrepresentations were true. The answer is no. There is no authority supporting a freestanding requirement of belief that the misrepresentations are true. The representees state of mind is instead relevant to, but not necessarily decisive of, the courts consideration of inducement into the settlement agreement, and causation [18, 23, 25]. There may be factual circumstances in which a representee knows that a representation is false but nevertheless relies on it, but this is not such a case. The insurer in this case did not know that Mr Hayward was deliberately exaggerating his injuries to such an extent as later became clear, and did everything that it could to investigate. Qualified belief in a misrepresentation does not rule out the conclusion that the insurer was induced by it [20 22, 40]. Lord Toulson, concurring, adds that the issue in this case is whether a suspicious insurer, who nevertheless settles the claim on the basis that it is likely to succeed but then later discovers a fraud, can set aside that settlement and recover damages for deceit [52]. It must be shown that the false representation caused the insurer to act to its detriment, but such inducement is always a question of fact going to the issue of causation. Mr Haywards misrepresentation induced the insurer to enter into the settlement agreement in this case [70]. It is not necessary to decide whether knowledge of the falsity of a representation would always prevent a representee from nevertheless proving that he was induced by it [40 48].
Local authorities owe a variety of duties towards children in need, who may include unaccompanied minors coming here to seek asylum. Such children may be entitled to accommodation and other help which is different from, and rather better than, the services available to adults. So disputes may arise about whether a young person is or is not a child. Today, the Supreme Court unanimously decided that it is ultimately for the courts, and not the local authority, to resolve this question. The Court considered two individual cases, but there are many others raising the same issue. A and M both arrived alone in England and claimed asylum, stating that they were under eighteen. Each was referred to local authority social workers who assessed him as an adult. Each challenged the resulting decision of the local authority that he was not entitled to accommodation. Two main issues were before the Supreme Court: (1) Whether the duty on local authorities to provide accommodation and related services under the Children Act 1989 is owed only to a person who appears to the local authority to be a child (so that the decision is ultimately for the authority to make), or whether it is owed to a person who is in fact a child (so that the decision is ultimately for a court to make); (2) Whether the decision to provide accommodation is the determination of their civil rights, so that the decision making process has to comply with the requirements for a fair trial before an independent and impartial tribunal under Article 6 of the European Convention on Human Rights. The Court unanimously allowed these appeals. The lead judgment of the Supreme Court was given by Lady Hale. The other members of the Court (Lord Hope, Lord Scott, Lord Walker, and Lord Neuberger) agreed with her. On the first main issue, Lady Hale explained that the many references to a child throughout the 1989 Act must mean the same thing, that is, a person who is in fact a child. There was a right or a wrong answer to this question, difficult though it might be to decide it in some cases. It was a different type of question from whether the child was in need within the meaning of the Act, which involved a number of different value judgements suitable for expert assessment by social workers (paragraphs [26] [27]). She pointed out, however, that local authorities (or the UK borders agency in asylum cases) will still have to decide whether or not a person is a child in the first instance; it will only be if this remains disputed that the court may have to take the decision itself (paragraph [33]). On the second main issue, Lady Hale said that it was unnecessary, in light of her conclusion on the first issue, to reach any firm conclusions on the application of Article 6 of the Convention (paragraph [34]). She declined to decide whether a childs entitlement to accommodation under the 1989 Act was a civil right, but commented that she would be most reluctant to hold that Article 6 required the judicialisation of claims to welfare services of this kind (paragraphs [44] [45]). Lords Scott, Walker and Neuberger agreed with her approach (paragraphs [66] [68). While agreeing that it was unnecessary to reach any firm conclusions on the point (paragraph [50]), Lord Hope doubted whether the duty of local authorities to provide accommodation under the 1989 Act gave rise to a civil right within the meaning of Article 6 of the Convention (paragraphs [55] [65]).
The immediate issue in this case is whether the trial at which the Appellant was convicted of murder was fair. The point of law of broader significance is whether it is compatible with Article 6 of the European Convention on Human Rights for an appeal against a criminal conviction on the ground of the Crowns non disclosure of evidence to the defence to be determined by applying the test laid down by the High Court of Justiciary in Cameron v HMA 1991 JC 252 for fresh evidence appeals. Arlene Fraser disappeared from her home in New Elgin on 28 April 1998. Her body has never been found. The Appellant stood trial for her murder in January 2003. He was convicted and sentenced to life imprisonment. The Crowns case was that the Appellant had arranged for his wife to be killed. Part of the evidence against him was that his wifes rings had been discovered in the bathroom of her house on 7 May 1998 after he had visited the house. There was unchallenged evidence that they had not been in the bathroom when the deceased had disappeared. At the trial, the Crown placed considerable emphasis on the return of the rings. In his speech to the jury, the prosecutor (the Advocate Depute) described the return of the rings as the cornerstone of the case against the Appellant. He suggested to the jury that the Appellant had removed the rings from the dead body and placed them in the bathroom to make it look as though his wife had decided to walk away from her life. The trial judge directed the jury that, if they were not prepared to hold that it was the Appellant who placed the rings in the bathroom on 7 May, it was not open to them to convict him. After conviction, it came to light that the Crown had had evidence before the trial suggesting that the rings were in the house on the night of 28/29 April after all. In preparing for the trial, a statement had been taken from PC Lynch on 3 July 2002 in which he had said that he had visited the house that night, before the official police search, and had seen rings in the bathroom. He said that he had been accompanied by WPC Clark. After this information came to light, the Crown carried out further inquiries. Statements were taken in 2006 from PC Lynch and WPC Clark. Both said that they had seen jewellery (including rings) in the bathroom on the night of Arlene Frasers disappearance. The rings were not visible in a video which had been taken during the official search, but subsequent analysis of that video could not rule out the possibility that rings had been present. The Appellant relied upon this information in his appeal against conviction. He argued that it was new evidence which showed that his conviction was a miscarriage of justice. He also sought to raise a devolution issue, arguing that the Crowns failure to disclosure the information obtained from PC Lynch on 3 July 2002 had infringed his right to a fair trial under Article 6 ECHR. The Appeal Court refused to allow him to advance the devolution issue: among other reasons, it held that the points were already covered by the fresh evidence grounds of appeal. The Appeal Court refused the Appellants appeal. It treated the grounds of appeal relating to the Crowns non disclosure in the same way as those relating to new evidence and held that the new evidence was not such as to make the conviction a miscarriage of justice. The Supreme Court granted the Appellant leave to appeal to the Supreme Court. The Supreme Court unanimously allows the appeal. It remits the case to a differently constituted Appeal Court to consider whether to grant authority for a new prosecution and then, having considered that point, to quash the conviction. Lord Hope gives the main judgment, with which Lords Rodger, Kerr and Dyson agree. Lord Brown gives a separate judgment indicating his reservations about allowing the appeal, but does not dissent. The Supreme Court recognises that it has no jurisdiction to consider the test which applies in Scots law to fresh evidence appeals which do not involve a devolution issue. This case, however, involves an issue of non disclosure, which raises the question whether the trial complied with Article 6 ECHR and which is a devolution issue. By refusing the Appellants devolution minute, the Appeal Court did determine a devolution issue and the Supreme Court has jurisdiction to hear an appeal against that determination: [11], [12], [17]. The test which is to be applied to determine whether non disclosure of information by the Crown had resulted in an unfair trial, contrary to Article 6 ECHR, is now set down in the Supreme Courts decision in McInnes v HM Advocate ([2010] UKSC 7). It can be analysed as comprising threshold and consequences components. If the material might have materially weakened the Crown case or might have materially strengthened the case for the defence, it ought to have been disclosed by the Crown. When assessing the consequences of non disclosure, McInnes provides that the trial was unfair and the verdict a miscarriage of justice if there is a real possibility that the jury would have arrived at a different verdict if the withheld material had been disclosed to the defence: [12] [14]. Because it dealt with all of the grounds of appeal as a fresh evidence appeal, the Appeal Court applied the test set down in Cameron v HMA 1991 JC 252. In order to determine whether that approach complies with what McInnes requires in a non disclosure case, the Cameron test and the Appeal Courts application of it must be compared against the McInnes test: [15] [16]. The Cameron test is materially different from the McInnes test: [25], [29]. If fresh evidence is admissible on appeal, the threshold element of the Cameron test asks whether the evidence would have had a material bearing upon the jurys determination of a critical issue at trial. That is more stringent than the threshold test in McInnes ([25]), which was clearly satisfied in this case: had the evidence of PC Lynch and WPC Clark been led at the trial the prosecution would not have committed itself to the theory of the case which it presented and the conduct of the trial by both parties would have been quite different: [32]. In relation to the consequences of the evidence not featuring at the trial, the Cameron test asks whether there has been a miscarriage of justice, which it does not define: [26] [27]. In this case, the Appeal Court considered that question on the assumption that, had the undisclosed material been available at the trial, it would have been conducted differently. As a first stage of its analysis, it left out of account the Advocate Deputes speech to the jury and the judges direction and considered the evidence led at the trial. It considered that the jury had been entitled to convict on the basis of that evidence and concluded that the new evidence was not of such significance as to require the verdict to be set aside: [36]. That approach cannot be reconciled with the McInnes test, which requires an appeal court to concentrate on the case as presented at trial, rather than as it might have been presented. An appeal court is not to deal with the case as if it were a new jury trying the case for the first time. There was a real possibility, in light of the undisclosed evidence, that the jury at this trial would have arrived at a different verdict: if the evidence of PC Lynch and WPC Clark were accepted, the Crowns theory of the case would have been untenable: [37] [39]. Lord Brown agreed that the Appeal Court applied the wrong test. He would have been inclined to remit the whole matter to that court for reconsideration, leaving it to that court to apply the McInnes test. In view of the majoritys decision, he did not carry his doubts to the point of dissent: [51] [52]
The appellant local authority (the Council) has responsibility for the enforcement of food safety laws in its area. In June 2011 inspectors visited the premises of the respondent company, which carries on the business of buying, processing and selling meat products. The inspectors found a number of packages of frozen meat labelled with use by dates which had passed. The respondent was tried on 23 charges of selling food after the date shown in the use by date relating to it contrary to Regulation 44(1)(d) of the Food Labelling Regulations 1996 (the Regulations) made under the Food Safety Act 1990. The charges were dismissed by Gwent Justices on 1 September 2011. They accepted a submission by the respondent that it had no case to answer because the prosecution had not proved that at the date of the alleged offence the food required a use by label under the Regulations, ie that it was highly perishable and likely after a short period to constitute an immediate danger to human health. There was no evidence as to when the meat had been labelled or frozen. The Council appealed by way of case stated. The Divisional Court allowed the appeal, holding that the prosecution did have to show that the food had at some stage been in a state which required it to be labelled with a use by date, which had passed, but not that it was in that state at the time of the offence. The Council brought a further appeal to the Supreme Court, submitting that the prosecution had only to show that the respondent was selling food which was the subject of a use by label displaying a date which had passed. The Supreme Court unanimously allows the appeal. It holds that under Regulation 44(1)(d) it is sufficient for the prosecution to prove that a defendant had food in its possession for the purpose of sale which was the subject of a label showing a use by date which had passed. The case will be remitted to a different panel of justices for a rehearing in accordance with this ruling. The judgment is given by Lord Toulson. The Divisional Court was right to reject the respondents argument that the prosecution had to prove that the food was in a highly perishable state at the time of the alleged offences under Regulation 44 (1)(d). On the wording of that paragraph, all the prosecution had to prove was that (i) the food was in the respondents possession for sale (and therefore sold within the extended meaning of that term), (ii) that the food had a use by mark or label relating to it, and (iii) that the date shown had passed [21]. To read into paragraph (d) an additional requirement that the food was in a highly perishable state at the time of the alleged offence would seriously weaken the regulatory scheme and the protection provided to consumers. It would enable a retailer of perishable food, which had passed its use by date to freeze it and then sell it without the consumer knowing how long it had been unfrozen [22]. The words relating to in the phrase sells any food after the date shown in a use by date relating to it were synonymous with referring to. It denoted a factual connection rather than a legal requirement and simply meant that the food sold was the subject of a label with a use by date [24]. Comparison with other paragraphs of Regulation 44 (1) showed that, unlike the offence in paragraph (a), there was a reason for the omission of the words marked or labelled in accordance with Part II of these Regulations. Once food had been marked with a use by date the Regulations protected the consumer by prohibiting the removal or alteration of the marking except with the written authority of the original marker and by prohibiting the sale of the food after the use by date shown [25 27]. The Divisional Courts construction of the Regulations would give rise to significantly greater practical problems and expense for enforcement under paragraph (d) compared with (a). Questions relating to when the marking of the food had been done and the state of the food at the time would be matters unknown to the inspectors and realistically might deter prosecutions [28].
This case concerns the scope for justifying indirect discrimination against men in the allocation of Child Tax Credit (CTC). CTC was introduced by the Tax Credits Act 2002 and replaced the previous separate systems of tax credits and benefit supplements for people looking after children, separately administered by the tax and benefits authorities. CTC is a benefit payable in respect of each child irrespective of whether the applicant is employed. It is administered solely by HMRC. The amount of CTC payable depends on the income of the applicant. Under the Child Tax Credit Regulations 2002 (SI 2002/2007), CTC in respect of each child is payable to only one person, even where the care of the child is shared between two or more persons. Entitlement to CTC depends on who is deemed responsible for the child. Regulation 3(1) creates a set of rules for determining this. Rule 1 provides that where the child lives with one person, that person is treated as responsible. Rule 2 provides that where a child lives with two or more persons in different households, the person having main responsibility for the child is treated as being responsible. The Appellant is a father of two children. Between January 2004 and December 2005 both children lived with their mother but retained substantial contact with the Appellant, spending most weekends and half of all school holidays with him. The Appellant applied for CTC which was considered under Rule 2, above. The Respondent determined that the mother had main responsibility for the children and the Appellants application was rejected. The CTC was paid solely to the mother. The Appellant appealed the refusal of CTC arguing that the legislative scheme breached article 14 read with article 1 of the First Protocol to the European Convention on Human Rights (the ECHR) in that it indirectly discriminates against men because, on the whole, fathers are more likely than mothers to have secondary, but nonetheless significant, responsibility for the care of their children. Entitlement to CTC falls within the scope of the right to protection of property under article 1 of the First Protocol to the ECHR. Article 14 of the ECHR provides that the enjoyment of rights and freedoms under the ECHR shall be secured without discrimination on grounds of, amongst others, sex. The HMRC now accepts that the legislative scheme indirectly discriminates against men. The key issue was whether that discrimination was objectively justified. The appeal tribunal held that it was not and therefore that denying CTC to the father was a breach of article 14 of the ECHR read with article 1 of the First Protocol. The Upper Tribunal held that the discrimination was justified and that decision was upheld by the Court of Appeal. The Supreme Court unanimously dismisses the appeal. Lady Hale gives the lead judgment with which Lord Walker, Lord Clarke, Lord Wilson and Lord Reed agree. The Appellant relied upon the Court of Appeal decision in Hockenjos v Secretary of State for Social Security [2004] EWCA Civ 1749, [2005] EuLR 385 in which it was held that the denial of child supplements to a fathers jobseekers allowance where he and the mother shared roughly equal care of the children was unjustified indirect discrimination [12]. The case was brought under European Union anti discrimination law rather than the ECHR. Following that decision HMRC conducted a review of the no splitting rule in CTC, the results of which helped persuade both the Upper Tribunal and the Court of Appeal that there were features of the instant case distinguishing it from Hockenjos. The specific test under the ECHR for justifying discrimination in the context of state benefits is set out in Stec v United Kingdom (2006) 43 EHRR 1017, a decision of the Grand Chamber of the European Court of Human Rights [15]. The benefits in that case were for people who were required to stop work because of injury. Entitlement reduced upon reaching retirement age which had a discriminatory effect on women who reached that age five years before men. The Court repeated that A difference in treatment is discriminatory if it has no objective and reasonable justification; in other words, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised (para 51). However, when it comes to general measures of economic and social strategy, a wide margin of appreciation is allowed to member states. The Court will generally respect the legislatures policy choice unless it is manifestly without reasonable foundation [16]. Hence this particular measure was justified. The test in Stec has been applied in other direct discrimination cases. If it applies to direct discrimination cases, then it must also apply to indirect discrimination cases such as this. In the context of state benefits, under the ECHR the normally strict test for justification of sex discrimination gives way to the manifestly without reasonable foundation test [19]. This does not mean however that the justifications put forward will escape careful scrutiny by the courts [22]. The Appellants main complaint is that the scheme leaves him with nothing to provide for the needs of his children when they stay with him [23]. Although the mother could choose to share the CTC, neither HMRC nor the courts can compel her to do so. Against this, HMRC points out that the aim of the scheme is to reduce child poverty. It is paid to the main carer on the expectation that that person incurs most of the expenditure in looking after the child [25]. Splitting the CTC between two carers of modest means could result in neither of them being able to provide for the childs needs [25]. Furthermore, splitting CTC on the basis of means would introduce administrative complexities and increase costs [25]. Finally, the Appellant is asking for an exception to be made to an otherwise justifiable rule. It has been previously established that generally justifiable rules are not unreasonable or without foundation merely because they result in hardship in some cases [26]. The scheme in this case is geared towards reducing child poverty. The current definitions of child poverty rely upon household income, which means that targets will be easier to meet if support is given to single households rather than split [28]. However, the state is entitled to conclude that children will in fact be better off if CTC is distributed in this way rather than divided between two households with modest means [29]. That method is also simpler and less expensive to administer, thereby maximising the funds available for distribution [29]. It was an integral part of the move to combine tax allowances and social security benefits into a seamless tax credit system [30]. It is also reasonable for the state to regard the way in which it delivers support for children and families as a separate issue from the way in which children spend their time [31]. It is perhaps unfortunate that the courts making orders about where children are to live no longer have the power to make consequential orders about benefit sharing, where appropriate [32]. However, the no splitting rule is a reasonable rule for the state to adopt and the indirect discrimination in this case is justified [33].
National Savings and Investments (NS&I) is a non ministerial Government department offering retail savings and investments to UK customers. It also provides support functions to other public bodies, referred to as business to business services or B2B services [2]. NS&I has outsourced its own operational services. In 2013 it entered into a contract with Atos IT Services Limited (Atos) to purchase support services including transaction management, printing, accounting, IT and customer services [3]. The award of the Atos contract followed a competitive tender process which complied with EU law on public procurement, as implemented in domestic law by the Public Contract Regulations 2006 (the 2006 Regulations). It was envisaged in the tender documents and in the Atos contract that it could be extended to support new B2B services provided by NS&I [13]. The Government announced it would replace tax relief for employers who contribute to their employees child care costs with a new scheme of tax free childcare (TFC). The TFC scheme involves parents setting up childcare accounts into which HMRC contributes a 20% top up, capped at 2,000 per year [16]. On 29 July 2014 HM Treasury decided that NS&I would deliver the new TFC policy for HMRC by providing and administering the childcare accounts and supporting services [21]. The arrangements between HMRC and NS&I were to be set out in a memorandum of understanding. NS&I proposed to modify its contract with Atos to include services related to TFC [23], without any government body undertaking a public procurement process in relation to this work. The appellants are Edenred (UK Group) Limited, a company which provided services to employers under the old tax relief scheme, and the Childcare Voucher Providers Association [1]. They considered that EU procurement law required a new tender process [6]. They commenced proceedings seeking declarations that the proposed TFC arrangements were unlawful under the 2006 Regulations and an order restraining the modification of the Atos contract. On 27 October 2014 they were granted an interim order preventing the implementation of TFC [25]. An expedited trial took place before Andrews J in November 2014. She dismissed the claim, holding that the proposed variation of the Atos contract would not breach EU procurement law [26]. The appellants appealed to the Court of Appeal, but their appeal was dismissed on 31 March 2015 [26]. The Supreme Court heard the appellants application for permission to appeal at the same time as their substantive appeal, in order to provide a prompt determination [5]. The Supreme Court grants the appellants permission to appeal but unanimously dismisses their appeal. The interim order preventing the implementation of TFC is set aside [50]. Lord Hodge, with whom Lord Neuberger, Lord Mance, Lord Sumption, Lord Carnwath agree, gives the judgment. The principal purpose of EU procurement law is to develop effective competition in the field of public contracts. Public contracts over a threshold value must be advertised and awarded according to fair and transparent procedures to ensure equality of treatment between potential service providers [28]. Amendments to an existing public contract will fall within the procurement regime and be treated in substance as the award of a new contract if they involve a material variation of the contract [29]. The 2006 Regulations were replaced by the Public Contracts Regulations 2015 (implementing Directive 2014/24/EU) which came into force on 26 February 2015. The 2015 Regulations will govern the amendment of the Atos contract if the respondents proceed with that amendment [6], and represent an updated statement of EU procurement law [30]. Therefore, the judgment refers to reg.72 of the 2015 Regulations which sets out the circumstances in which a contracting authority may modify a public contract without a new procurement process [31]. A fresh procurement is not required where the modifications to the contract are not substantial (reg.72(1)(e)). The appellants argued that the proposed amendments to the Atos contract were substantial because they extended the scope of the contract considerably (reg.72(8)(d)), encompassing services not initially covered [33]. This argument did not succeed. The original contract covered operational services to support both NS&Is existing functions and (as an object of the contract) the expansion of B2B services [34]. The prohibition on modification to encompass services not initially covered does not preclude expansion that is envisaged and advertised in the initial procurement process. The question is whether the services were covered by the original contract, including its provisions for contractual variation. Otherwise, outsourced services would not be able to accommodate the events and policy changes that are part of public life [36]. Although contracts may not be designed to avoid EU law obligations, the expansion provided for in this case was within a reasonable compass. It did not alter the essential nature of the operational services provided and included restrictions to maintain the economic balance of the contract and Atos profit margin [37]. A new tendering process may also be dispensed with if the proposed contractual variation has been provided for in the initial procurement documents in clear, precise and unequivocal review clauses (reg.72(1)(a)). Lord Hodge inclines to the view that this criterion is also satisfied [43] but comments that the nature of the review clauses covered by the regulation is open to debate [44]; such debate was not necessary to resolve in order to determine the appeal [45]. The appellants argued alternatively that there was in substance a public service contract between HMRC and Atos [46], on the basis that provisions in the memorandum of understanding between HMRC and NS&I were legally binding and were repeated in the proposed modification to the Atos contract, and that HMRC was the service recipient of B2B services provided by, and discussed with, Atos [47]. However, NS&I is an existing public body with an established remit apart from the TFC scheme, using outsourced resources to provide B2B services to other public bodies. There is no legal basis for airbrushing it out of the picture. The memorandum of understanding and the Atos contract are legally distinct. It is NS&I, not HMRC, that can enforce the Atos contract. The appellants contention that NS&I would be under a statutory legal obligation to comply with the memorandum of understanding (which is not in itself an enforceable contract) by virtue of s.16 of the Childcare Payments Act 2014 misinterpreted the effect of that section. Any public body receiving B2B services from NS&I may discuss those services with the outsourced provider, but that does not alter the substance of the transaction [48].
The issue in this appeal is the scope of the remedy of judicial review in the Court of Session of decisions of the Upper Tribunal established under the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act). Ms Ebas claim for disability living allowance was refused by the Department of Work and Pensions on 1 February 2008. Her appeal against this decision to the First Tier Social Entitlement Chamber was dismissed. She was refused permission to bring a further appeal to the Upper Tribunal by a judge of the Upper Tribunal. There was no right of appeal from that decision under the 2007 Act. Ms Eba therefore sought to bring proceedings for judicial review. Her claim for judicial review was dismissed by the Lord Ordinary (Lord Glennie) on 31 March 2010. The First Division of the Court of Session, however, allowed a reclaiming motion, holding that the decision of the Upper Tribunal was amenable to judicial review under the supervisory jurisdiction of the Court of Session and that the grounds on which it would be reviewed were not subject to any limitation on policy or discretionary grounds. The Advocate General for Scotland appealed to the Supreme Court. The appeal was heard with appeals in two English cases raising the same issue, R (Cart) v Upper Tribunal and MR (Pakistan) v Upper Tribunal. The Supreme Court unanimously dismisses the appeal and affirms the interlocutor of the Inner House of the Court of Session, although for different reasons. It holds that unappealable decisions of the Upper Tribunal are amenable to judicial review in cases which raise some important point of principle or practice or some other compelling reason to be heard. Ms Ebas case should be remitted by the Inner House to the Lord Ordinary to examine the question of whether she has sufficient grounds for her claim, applying this approach. Lord Hope gives the judgment of the court. The issue in the appeal lay at the heart of the relationship between the Court of Session and the new system for specialist tribunals created by the 2007 Act. On the one hand was the rule of law, which gave the Court of Session power to correct excesses or abuses of the power or jurisdiction conferred on a decision maker by the system of judicial review; on the other was the interest in achieving finality at the tribunal level in the delivery of administrative justice [8]. Although there are differences in judicial control of administrative actions in Scotland, there is in principle no difference between the law of England and Wales and Scots law as to the substantive grounds on which a decision by a tribunal which acts within its jurisdiction may be open to review [34]. The potential approaches in relation to unappealable decisions of the Upper Tribunal in England and Wales were examined in the judgments in the linked appeals in Cart and MR(Pakistan). The Supreme Court in those appeals has held that the adoption of the criteria for the grant of permission to bring second tier appeals provided by the 2007 Act would be a rational and proportionate restriction on the availability of judicial review while guarding against the risk that errors of law may slip through the system [37]. The outcome of those appeals, by overturning the restrictive approach of the Court of Appeal in Cart, has made it much easier for the Scots approach to find common ground with that now being taken in England and Wales. The issue is not one about access to the remedy, which will remain available to the citizen as of right, or the purpose for which the supervising jurisdiction may be exercised, but one of how best to tailor the scope of the remedy according to the nature and expertise of the Upper Tribunal and the subject matter of the decisions that have been entrusted to it by Parliament [44]. Two factors already established in Scots law support the conclusion that Scots law should now align itself with the position in English law. The first is that the court should be slow to interfere with decisions that lie within the expertise of the specialist tribunals. The second is the fact that the limitation on the scope for second appeals in the 2007 Act has been reproduced in the Rules of the Court of Session and it would be inconsistent with the intention behind that rule to provide a wider opportunity for the decisions of the Upper Tribunal to refuse permission to appeal to itself to be reconsidered by way of judicial review [47]. It will be for the Court of Session to give such further guidance as may be needed as to how this analogy with the second appeals criteria should be applied in practice, but ideally the Lord Ordinary should give consideration of whether the criteria are arguably met at the stage of the first order [49]. There is no good reason to take a different approach in the application of the common law principle of restraint in cases relating to other Scottish tribunals outside the 2007 Act, although it does not arise for decision in the present appeal [51].
The respondent is a member of the Volkswagen (VW) Group and is used (through its retail sector) to provide hire purchase (HP) finance for the sale of vehicles manufactured by the group. When a customer of a VW dealership wishes to purchase a vehicle using finance from the respondent, the vehicle is acquired by the respondent and supplied to the customer on deferred payment terms under an HP contract. In the course of its business the respondent incurs input tax as part of its expenditure. Where that expenditure is directly attributable to taxable supplies the input tax is deductible; where the supply is exempt the input tax is irrecoverable. This appeal concerns the treatment of general business overheads, not directly attributable to particular supplies: specifically, whether any of the residual input tax paid by the respondent in respect of general business overheads is deductible against the output tax paid on the taxable supply of vehicles to customers. In December 2007 the appellant agreed to a new, updated version of a partial exemption special method (PESM) with the respondent for determining the allowable proportion of residual input tax. It did not, however, agree to the respondents proposed methodology for retail (under which HP falls). The appellants approach is that overheads are all attributable to the exempt supplies of finance and the input tax is therefore irrecoverable. The respondent, meanwhile, argues that the residual input tax should be in proportion to the ratio of taxable transactions to the whole, which has the effect of splitting the residual input tax 50/50 for HP transactions. That issue was decided in favour of the respondent by the First Tier Tribunal (FTT) and Court of Appeal, while the Upper Tribunal (UT) had supported the approach of the appellant. A secondary issue between the parties is the appellants argument that it had a fall back position on the amount of the apportionment that the FTT had failed to consider. The UT considered an extract from the hearing notes of Judge Berner in the FTT as supporting the appellants claim that it had asked the FTT to consider in the alternative whether a lesser figure than 50% should have been attributed to the taxable supplies. The Court of Appeal, however, disagreed, holding that the appellant did not attempt to rely on an alternative methodology before the FTT. On the main issue in the appeal the Supreme Court makes a reference to the Court of Justice of the European Union (CJEU). On the second issue, the Court unanimously dismisses the ground of appeal. Lord Carnwath gives the judgment, with which the other Justices agree. On the primary issue in the appeal, the Court decides that a reference to the CJEU is necessary to reach a conclusion [3]. Its questions to the CJEU include: where general overhead costs attributed to hire purchase transactions (which consist of exempt supplies of finance and taxable supplies of cars), have been incorporated only into the price of the taxable persons exempt supplies of finance, does the taxable person have a right to deduct any of the input tax on those costs? Further, can it be legitimate in principle to ignore the value of the taxable supplies of cars (or their value) for the purposes of arriving at a special method under Article 173(2)(c) of Council Directive 2006/112/EC? Determination of the secondary issue does not require examination of general questions about the tribunals role. One of the strengths of the tribunal system is the flexibility of its procedures, which need to be adapted to a wide range of types of case and litigant. There may be some circumstances where a more inquisitorial approach is appropriate, but where the tribunal is dealing with substantial litigants represented by experienced counsel, it is entitled to assume that the parties will have identified what they regard as relevant issues for decision [7]. Particular importance is attached to the tribunals understanding of the issue before it, as apparent from the tribunals own introduction to the detailed discussion at paragraph 41 [8]. The Court has no material to go behind the clear statement of the position as the tribunal understood it, having itself apparently sought clarification. If the tribunal was thought to have misunderstood the appellants position and failed to deal with a significant issue, the matter could have been raised with them and sorted out at that point [9]. As the tribunals understanding is consistent with the lack of any specific reference to this issue in the appellants written submissions or in the evidence of its witness, this ground of appeal is dismissed.
In breach of Article 81 of the EC Treaty (TEC) (now Article 101 of Treaty on the Functioning of the European Union (TFEU)), the appellants participated in an illegal cartel in electrical and mechanical carbon and graphite products. The appellants disclosed the existence of the cartel to the European Commission and a Commission Decision finding that article 81(1) had been infringed by the members of the cartel was issued on 3 December 2003. The appellants, as whistle blowers, escaped any fine. The other cartel members received heavy fines. A number of the other cartel members appealed the Commission Decision to the General Court of the Court of Justice of the European Union. The General Court dismissed the appeals, and the time limit for pursuing any further appeal to the Court of Justice expired on 18 December 2008. On 15 December 2010, the respondents filed claims for damages with the Competition Appeal Tribunal for loss alleged to have resulted from the operation of the cartel. These claims are follow on claims brought under section 47A of the Competition Act 1998 (the 1998 Act). Follow on claims are based on a prior Commission decision that an infringement has occurred, which is treated as binding on the domestic Tribunal. Section 47A(8) of the 1998 Act provides that no follow on claim may be brought during the period up to the expiry of the time limit for pursuing any appeal against the relevant Commission decision or the determination of any such appeal if pursued. The relevant Tribunal rules state that the time limit for bringing any follow on claim is two years from the end of the period specified in section 47A(8). The issue before the Supreme Court is whether the respondents follow on claim against the appellant should be struck out for being brought more than two years after the end of the period for appealing the Commission Decision. This, in turn, depends on whether the Commission Decision is viewed: (i) as a decision made against the appellants, which they chose not to appeal; or (ii) as a decision made against all the cartel members, appealed by most of them, and finally upheld by the General Court. On the former approach the two year limitation period began on 13 February 2004 (when time expired for an appeal by the appellants) and expired before the follow on claims were brought on 15 December 2010. On the latter approach it began only on 18 December 2008 (when time expired for an appeal to the Court of Justice by those who had appealed to the General Court) and the follow on claims were brought in time. The Court of Appeal, overturning the decision of the Competition Appeal Tribunal, preferred the latter approach and held that the claim against the appellant could proceed. The Supreme Court unanimously allows the appeal. Lord Mance (with whom Lord Neuberger, Lord Sumption, Lord Toulson and Lord Hodge agree) gives the only judgment. The decision to which section 47A of the 1998 Act refers is the Commission Decision, the nature of which is a matter determined by European Law [16]. Decisions of the Court of Justice establish that a decision by the Commission regarding the existence of a cartel constitutes a series of decisions addressed to its individual addressees, which remain binding against an individual addressee who does not appeal even if there is a successful appeal by another addressee [1721]. The only relevant decision establishing infringement in relation to an addressee who does not appeal is the original Commission decision [22, 2425]. That decision, in relation to the appellant, is the Commission Decision made on 3 December 2003, in respect of which the time period to appeal expired on 13 February 2004 [28]. Therefore, the claim by the respondents was brought more than two years after the relevant decision and is out of time. The detailed rules governing the recovery of any loss resulting from the operation of an illegal cartel are matters of domestic law, so long as they comply with the general principles of European law. It is a general principle of European law that domestic courts cannot take decisions running counter to a Commission decision finding that a prohibited agreement or practice exists. This is reflected in section 47A of the 1998 Act, which contains important cross references to a decision by the Commission made under European law. To understand the nature of that decision, regard must necessarily be had to European law. [1011, 16] The relevant provisions of the treaties (Article 249 TEC and now article 288 TFEU) leave open whether a decision operates as a single decision against all addressees, or as a decision against each addressee separately. However, the European Court of Justice has determined this question in Case C 310/97 AssiDomn Kraft Products AB v Commission of the European Communities, holding that a decision which has not been challenged by the addressee within the time limit becomes definitive as against him, regardless of any appeal that may be brought by another addressee. The same principle was recently reiterated by the General Court in Case T 462/07 Galp Energa Espaa SA v Commission. [17 21] It follows that, even if the appeals by the other cartel members had succeeded, the Commission Decision would have remained in full force and effect against the appellants. That being the only decision against the appellants in European law, it is also the only decision to which section 47A of the 1998 Act can refer. [2225]
The Appellant, Ms Caroline Reilly, is the former head teacher of a primary school which was, at the relevant time, maintained by the Respondent, Sandwell MBC (the local authority). Approximately ten years before Ms Reilly became the head teacher of the school, she met a man named Ian Selwood, who became her close friend. They were not, however, in a sexual or romantic relationship. In 2003 they bought a property as an investment in their joint names and set up a joint bank account to pay the mortgage instalments. Mr Selwood lived in the property and Ms Reilly sometimes stayed there overnight. In January 2009 Ms Reilly applied for the position of head teacher at the school. On 25 February 2009, having just stayed overnight at their jointly owned property, she witnessed Mr Selwoods arrest by the police on suspicion of having downloaded indecent images of children. Ms Reilly was subsequently appointed to be head teacher and took up the position on 1 September 2009. Mr Selwood was convicted on 1 February 2010 of making indecent images of children by downloading them onto his computer. Although Ms Reilly became immediately aware of Mr Selwoods conviction, she decided not to disclose it to the governing body of the school. Her close friendship with Mr Selwood continued, and in April 2010 they went on holiday together. In June 2010 the local authority learnt of Mr Selwoods conviction, and of Ms Reillys friendship with him. It suspended Ms Reilly and subsequently summoned her to a disciplinary hearing in May 2011. At that hearing, the panel upheld the allegation that, by having failed to disclose her relationship with a man convicted of sexual offences towards children, Ms Reilly had committed a serious breach of an implied term of her contract of employment which amounted to gross misconduct. The panel were particularly concerned by Ms Reillys continuing refusal to accept that her relationship with Mr Selwood might pose a risk to pupils and the school, and that she should therefore have disclosed it to the governors. Ms Reilly was, as a result, summarily dismissed. Ms Reilly subsequently brought proceedings for unfair dismissal and sex discrimination in the Employment Tribunal, maintaining that she had been under no obligation to disclose the information. The Tribunal held that, save for an irrelevant procedural element, the decision to dismiss her had not been unfair. Her sex discrimination claim was also dismissed. Ms Reilly thereafter appealed to both the Employment Appeal Tribunal and the Court of Appeal on the unfair dismissal point, but was unsuccessful on both occasions. The Supreme Court unanimously dismisses the appeal. Lord Wilson gives the judgment with which Lord Carnwath, Lord Hughes and Lord Hodge agree. Lady Hale gives a concurring judgment. An inquiry into whether a dismissal is unfair is governed by s.98 of the Employment Rights Act 1996. In summary, this requires that the employer show (i) that there is a reason for the dismissal, (ii) that that reason relates to the employees conduct or is similarly justifiable, and (iii) that they acted reasonably in treating the reason as sufficient for the dismissal [16 18]. On this latter point, i.e. the reasonableness of the employers conduct, the courts have for many years employed the test set out in the case of British Home Stores Ltd v Burchell [1980] ICR 303 [19]. This has been considered, in effect, to require the tribunal to inquire whether the dismissal was within a range of reasonable responses to the reason shown for it, and whether it had been preceded by a reasonable amount of investigation [22]. In this case, Ms Reilly was under a contractual obligation to assist the governing body in discharging its duty to safeguard the pupils, and the question was whether her relationship with Mr Selwood engaged the governing bodys safeguarding functions [25 26]. Parliament has previously recognised (for example via the Childcare Act 2006 and the regulations made under it) that sexual offenders towards children can represent a danger to children not only directly but also indirectly by operating through those with whom the children associate. Mr Selwood was the subject of a serious, recent conviction and the basis of his sentence was that he represented a danger to children. As head teacher, Ms Reilly was likely to know important information about her pupils, including their whereabouts, their routine and their circumstances at home. She was also likely to be able to authorise visitors to enter the school premises. Mr Selwoods relationship with Ms Reilly therefore created a potential risk to the children at the school. This risk required the assessment of the governors [27 28]. In these circumstances, the employment tribunal was entitled to conclude that it was a reasonable response for the disciplinary panel to have concluded that Ms Reillys non disclosure of her relationship with Mr Selwood not only amounted to a breach of duty, but also merited her dismissal. Ms Reillys continuing refusal to accept that she had been in breach of her duty suggested a lack of insight which, it was reasonable to conclude, rendered it inappropriate for her to continue to run the school [29]. Lady Hales Concurring Judgment Lady Hale agrees, and for the reasons given by Lord Wilson, that Ms Reilly breached her contract of employment by not informing her employers of her connection with Mr Selwood. She also agrees that Ms Reillys continuing failure to acknowledge that this information should have been disclosed made the decision to dismiss her reasonable [31]. Notwithstanding this, Lady Hale wishes to note that this case might, if argued differently, have presented an opportunity for the Supreme Court to consider two points of law of general public importance which have not been raised at this level before. Namely, (1) whether a dismissal based on an employees conduct can ever be fair if that conduct is not in breach of the employees contract of employment [32], and (2) whether the approach laid down by the Employment Appeal Tribunal in British Homes Stores Ltd v Burchell is correct [33]. In the absence of any such argument, however, the law remains unchanged, and Lady Hale expresses no view as to whether that is correct [35].
This appeal concerns the question whether, in cases of social security benefit awards mistakenly inflated due to a calculation error, the Secretary of State is entitled to recover sums overpaid under the common law of unjust enrichment or whether section 71 of the Social Security Benefits Act 1992 (the 1992 Act) provides the only route to recovery. Section 71 allows the Secretary of State to recover any overpayment resulting from misrepresentation or the non disclosure of a material fact by the benefits claimant. The background to this appeal is the Secretary of States practice (adopted in about 2006) of writing to benefit claimants who he considered have been overpaid, but where there had been no misrepresentation or non disclosure, indicating that his Department had a common law right of action to recover the overpayment. Although no common law claim for repayment was ever in fact brought in the courts, the letters led to the recovery of substantial sums, for example, just over 4m in 2007 8. The Child Poverty Action Group brought this legal test case on behalf of social security claimants to challenge the Secretary of States practice on the basis that it is based on a false legal premise. One of the salient features of the history of the social security benefits legislation is the fact that prior to the Social Security Act 1998 (the 1998 Act) there was a division between the functions of adjudication which involved the quantification of the award and the payment of the award. Until the 1998 Act, the Secretary of State was responsible for the payment function only and therefore at the time of enactment of section 71 of the 1992 Act there was no possibility of mistake on the part of the Secretary of State in the calculation of the award, since he played no part in the calculation. The only possibility of mistake lay in the payment of the award. Since the 1998 Act the Secretary of State had been responsible both for the calculation and the payment of the awards. Both parties agreed that where the Secretary of State overpays by mistake, for instance by sending a cheque for 120 following an award of 60, the amount of the overpayment can be recovered as money paid by mistake. The overpayments with which this appeal is concerned are those made as a result of a mistake in calculating the award. The Supreme Court unanimously dismissed the appeal. Lord Brown and Sir John Dyson gave lead judgments; Lord Rodger gave a concurring judgment. It held that section 71 of the 1992 Act provides the only route to recovery of social security benefits overpayments to the exclusion of any common law rights. Both Lord Brown and Sir John Dyson agreed with the respondents argument that, rather than excluding any common law rights to recovery, section 71 and its predecessors created a power of recovery when otherwise, due to the division of adjudication and payment functions up until 1998, there would have been none: [13], [22]. Lord Brown noted that it would seem inconceivable that Parliament would have contemplated leaving the common law restitutionary recovery available to the Secretary of State alongside the carefully prescribed scheme of section 71. He found it striking that Parliament had not made express provisions for recovery of mistaken overpayments alongside provisions for misrepresentation and non disclosure. Lord Brown thus concluded that section 71 does necessarily exclude any common law restitutionary claim the Secretary of State might otherwise have: [14] [15]. Sir John Dyson dismissed the Secretary of States argument that section 71 cannot be taken to have excluded prospectively the possibility of a common law right to recovery arising in the future. In his view, the change in the identity of adjudicator of the social security benefits awards in 1998, which was not accompanied by any change in the statutory criteria for recovery of overpayments, was not intended to open the door to recovery any wider than it previously had been: [23] [25]. Whilst noting that the appeal could be dismissed on that basis alone, Sir John Dyson went on to consider whether, if, contrary to the finding of the Court, the common law right to recovery did exist by the time section 71 and its predecessors were introduced, that right was impliedly displaced by statute. Having discussed the authorities at [27] [30], Sir John Dyson concluded that the test is not one of necessary implication but instead that of statutory interpretation, namely, whether, looked at as a whole, a common law remedy would be incompatible with the statutory scheme and therefore could not have been intended to co exist with it: [31], [34]. Sir John Dyson concluded that, for the reasons given by Lord Brown, he too agreed that section 71 was intended to be an exhaustive route to recovery of wrongly calculated benefits: [35]. Lord Rodger noted that section 9(3) of the 1998 Act, which provides that any revision of the award takes effect from the date of the original award, would have no practical effect in cases of downward revisions resulting from a mistake in favour of the Secretary of State. He concluded that while section 9(3) creates a problem, it does not solve it. Thus the question of whether a remedy should be available in cases of mistaken awards is a matter for Parliament: [39].
The appellant in this case challenged the rule that an expert witness enjoyed immunity from any form of civil action arising from the evidence he or she gave in the course of proceedings. The appellant had been hit by a car in March 2001 and suffered physical and psychiatric consequences. He consulted solicitors with a view to bringing a claim for personal injury, and they instructed the respondent, a clinical psychologist, to prepare a report on his psychiatric injuries for the purposes of the litigation. She reported that the appellant was suffering from post traumatic stress disorder (PTSD). Proceedings were issued and liability was admitted, so that the only remaining issue was the amount of damages. The appellant was examined by a consultant psychiatrist instructed by the defendant driver, who expressed the view that the appellant was exaggerating his symptoms. The district judge ordered the two experts to hold discussions and to prepare a joint statement to assist the court at the trial. It is the appellants case that the respondent carried out this task negligently, and thereby signed a joint statement which wrongly recorded that she agreed that the appellant had not suffered PTSD and that she had found the appellant to be deceitful in his reporting. This was so damaging to his claim for damages that he felt constrained to settle it for a significantly lower sum than he might otherwise have been able to achieve. The appellant accordingly issued proceedings for negligence against the respondent. She applied for the claim to be struck out. The judge in the High Court was bound by the Court of Appeals decision in Stanton v Callaghan [2000] QB 75 to hold that the respondent, as an expert witness, was entitled to immunity from such a claim in respect of her preparation of a joint statement for trial, and granted the application. The appellants appeal against this order came direct to the Supreme Court as a point of general public importance. The Supreme Court by a majority (Lord Hope and Lady Hale dissenting) allows the appeal. Lord Phillips gives the lead judgment. The majority hold that the immunity from suit for breach of duty (whether in contract or in negligence) that expert witnesses have enjoyed in relation to their participation in legal proceedings should be abolished. Witness immunity dates back over 400 years, long before the development of the modern law of negligence and the practice of forensic experts to offer services to litigants for reward [11]. It originally took the form of absolute privilege against defamation claims but was extended to all forms of suit [12]. It overlapped with the wider immunity formerly enjoyed by an advocate from negligence claims by his own client, before that immunity was abolished by the House of Lords in 2001 on the ground that it could no longer be justified [13]. The general rule was that every wrong should have a remedy and that any exception to this rule must be justified as being necessary in the public interest and kept under review [51][88][113]. The primary rationale for the immunity was a concern that an expert witness might be reluctant to give evidence contrary to his clients interest, in breach of his duty to the court, if there was a risk that this might lead his client to sue him [41]. In common with advocates, however, there was no conflict between the duty that the expert had to provide services to his client with reasonable skill and care, and the duty he owed to the court. The evidence did not suggest that the immunity was necessary to secure an adequate supply of expert witnesses [54] [117]. The removal of immunity for advocates had not diminished their readiness to perform their duty, nor had there been a proliferation of vexatious claims or multiplicity of actions [57 60][85]. For these reasons the majority concluded that no justification had been shown for continuing to hold expert witnesses immune from suit for breach of duty in relation to the evidence they give in court or for the views they express in anticipation of court proceedings [61]. This decision did not affect the continued enjoyment by expert witnesses of absolute privilege from claims in defamation [62], nor did it undermine the longstanding immunity of other witnesses in respect of litigation [125]. Lord Hope and Lady Hale, dissenting, disagreed with the majoritys approach of reviewing the justification for the immunity. The rule was longstanding and its application to claims beyond defamation in respect of evidence given by any witness was confirmed by the House of Lords in Watson v MEwen [1905] AC 480 [141]. The question therefore was whether an exception to this rule could be justified [161][176]. The main concern arising from the decision of the majority was the effect on disappointed litigants liable to commence worthless but time consuming claims against their experts [165][188]. The lack of a secure principled basis for removing the immunity, of a clear dividing line between what was to be affected by the removal and what was not, and of reliable evidence to indicate what the effects might be, suggested that the wiser course was to leave any reform, if needed, to Parliament [173][189].
These proceedings arise out of a fatal accident in Germany. On 21 May 2004 Major Cox, an officer serving with H.M. Forces in Germany, was riding his bicycle on the verge of a road near his base when a car left the road and hit him, causing injuries from which he died. The driver was Mr Kretschmer, a German national resident and domiciled in Germany. He was insured by the respondent, a German insurance company, under a contract governed by German law. The appellant, Major Coxs widow, was living with him in Germany at the time of the accident. After the accident, she returned to England where she has at all relevant times been domiciled. She has since entered into a new relationship and has had two children with her new partner. Liability is not in dispute, but there are a number of issues relating to damages. Their resolution depends on whether they are governed by German or English law, and, if by English law, whether by the provisions of the Fatal Accidents Act 1976 (the 1976 Act) or on some other basis. The question which law applies was ordered to be tried as a preliminary issue. There are two relevant respects in which an award under English Law, specifically the 1976 Act, may differ from an award under the relevant German Law, the BGB. First, damages awarded to a widow under the BGB will take account of any legal right to maintenance by virtue of a subsequent remarriage or a subsequent non marital relationship following the birth of a child. Section 3(3) of the 1976 Act expressly excludes remarriage or the prospect of remarriage as a relevant consideration in English law. Secondly, Section 844 of the BGB confers no right to a solatium for bereavement. Under section 823 of the BGB the widow may in principle be entitled to compensation for her own pain and suffering, but this would require proof of suffering going beyond normal grief and amounting to a psychological disturbance comparable to physical injury. English rules of private international law distinguish between questions of procedure, governed by the law of the forum i.e. in this case England, and questions of substance, governed by the local laws, in this case Germany. The issue in the present case is whether Mrs Cox is entitled to rely on the provisions of sections 3 and 4 of the 1976 Act. They provide for a measure of damages substantially more favourable to her than the corresponding provisions of German law, mainly because of the more favourable rule concerning the exclusion of her current partners payments of maintenance. This issue depends on whether the damages rules in sections 1A and 3 of the 1976 Act fall to be applied (i) on ordinary principles of private international law as procedural rules of the forum, or (ii) as rules applicable irrespective of the ordinary principles of private international law. The Court of Appeal held that English law should adopt the German damages rules as its own and apply them not directly but by analogy. The Supreme Court unanimously dismisses the appeal and finds that the German damages rules apply. Lord Sumption writes the leading judgment and Lord Mance writes a concurring judgment [37]. The Court finds that the relevant sections of the 1976 Act do not apply as they do not lay down general rules of English law, but only rules applicable to actions under the Act itself. An action to enforce a liability whose applicable substantive law is German law is not an action under section 1 of the 1976 Act to which the damages provisions of the Act can apply [20]. As the particular rules of assessment in the 1976 Act do not apply, then the answer must be sought in the rules of assessment which apply generally in English law in the absence of any statute displacing them. The relevant English law principle of assessment, which applies in the absence of any statute to the contrary, is that Mrs Cox must be put in the same financial position, neither better nor worse, as she would have been in if her husband had not been fatally injured. It follows that, in principle, credit must be given for maintenance from her subsequent partner during the period since the birth of their child [21]. A further issue concerns Mrs Coxs receipt of maintenance from her current partner during the period before they had a child, when he was under no legal obligation to maintain her either in German or in English law [22]. The findings at first instance about the relevant German law indicate that it is not just the maintenance that the appellant would have received from Major Cox that must have been received by virtue of a legal obligation, but also the maintenance from her current partner for which she can be required to give credit. Lord Sumption notes that the classification of a damages rule regulating the receipts for which credit must be given in an award of damages is a difficult question which admits of no universal answer but that, in the present case, the rule in question is one of substance, rather than procedure [22] (Lord Mance [39]). Lord Sumption rejects the argument that the 1976 Act should be applied notwithstanding the ordinary rules of private international law. As a matter of construction the Act does not have extraterritorial effect [32 34]. Nor do the principles enacted in the 1976 Act represent mandatory rules of English law, applicable irrespective of ordinary rules of private international law [35]. Lord Mance explains that it makes no difference to the outcome of the appeal whether or not the dependency claims under the 1976 Act and German law are categorised as broadly similar or whether the relevant provisions of the 1976 Act are treated as substantive or procedural [47]. Assuming that the dependency claims are categorised as broadly similar, the provisions of sections 3 and 4 of the 1976 Act are, if substantive, irrelevant to a tort subject to German substantive law. If on the other hand, the provisions of sections 3 and 4 were to be treated as procedural, their application could have no effect on the outcome. There is no basis on which an English procedural provision can expand a defendants liability under the substantive principles of the relevant governing law [48].