As originally enacted, s.33 and Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (the RTOA) provided that the maximum sentence that a Sheriff sitting summarily could impose in respect of the offence of driving while disqualified (s.103(1)(b) of the Road Traffic Act 1988 (the RTA)) was six months imprisonment or the statutory maximum fine or both. If the offence was prosecuted on indictment, the maximum sentence was 12 months imprisonment or a fine or both. Following a recommendation by a committee appointed to review the provision of summary justice in Scotland that the criminal jurisdiction of judges sitting summarily should be increased to a maximum of 12 months, the Criminal Proceedings etc (Reform)(Scotland) Act 2007 (the 2007 Act) was enacted by the Scottish Parliament. S.45 of that Act increased the maximum sentence that sheriffs sitting summarily could impose for the offence of driving while disqualified to 12 months imprisonment. On 17 December 2007 and 14 May 2008, respectively, in summary proceedings Sean Martin and Ross Miller were each sentenced by Sheriffs to periods in excess of six months imprisonment for driving while disqualified contrary to s.103(1)(b) of the RTA. They both sought to challenge their sentences on the basis that amending the relevant provisions of the 2007 Act were outside the legislative competence of the Scottish Parliament. The High Court of Justiciary (the HCJ) dismissed the appeals, holding that the increase in the sentencing power of Sheriffs sitting summarily by s.45 of the 2007 Act was within the Scottish Parliaments legislative competence. The HCJ gave the Appellants permission to appeal to the Supreme Court. The Supreme Court, by a majority of three to two (Lord Rodger and Lord Kerr dissenting), dismisses the appeals. The Court holds that the provision in question was within the Scottish Parliaments legislative competence. Lord Hope delivered the leading judgment on behalf of the majority. Majority Judgments The answer to the question raised by this case is to be found by applying the rules laid down in s 29 and Part 1 of Schedule 4 the Scotland Act 1998 which determine whether a provision of an Act is outside the Scottish Parliaments legislative competence. Three questions arise in this case: (1) whether the purpose of s.45 was to modify Scots criminal law as defined in s.126(5) of the Scotland Act; (2) if so, whether its purpose was to make the law apply consistently to reserved matters and otherwise; and (3) if (1) and (2) are answered in the affirmative, whether the rule that s.45 modified was special to a reserved matter within the meaning of para 2(3) of Schedule 4 [para [22]]. The purpose of s.45 of the Criminal Proceedings etc (Reform)(Scotland) 2007 Act The available material conclusively demonstrates that the purpose of s.45 was to contribute to the reform of summary justice by reducing pressure on the higher courts. The jurisdiction of a Sheriff is defined by the penalties which he can impose and his powers in this respect are quintessentially matter of Scots criminal law. S.45 was directed to a rule of Scots criminal law, so it does not relate to a reserved matter within the meaning of s.29(2)(b) of the Scotland Act 1998 [para [31]]. Was s.46 concerned to ensure that law applied consistently between reserved and non reserved matters? S.45 is one of a group of related provisions contained in the 2007 Act increasing the summary sentencing powers of Sheriffs in respect of a number of common law and statutory offences. If the 2007 Act had increased the sentencing power in respect of common law but not statutory offences the reform would have been incomplete and confusing. This problem would have been exacerbated if the reform had attempted to distinguish between statutory offences related to reserved matters and those which did not. The purpose of s.45 was to ensure that the law relating to the sentencing powers of Sheriffs was consistent as between offences concerning reserved matters and otherwise. Consequently, s.45 is not related to a reserved matter for the purpose of s.29(4) of the Scotland Act 1998 [paras [32] [33]]. Is the sentencing jurisdiction of a Sheriff in relation to road traffic offences special to the Road Traffic Offenders Act 1988 and the Road Traffic Act 1988? In identifying the rule of law that is being modified for the purpose of the test established by para 2(3) of Schedule 4, regard may be had to the purpose of the legislative provision effecting the modification [para [34]]. The key to the decision in this case lies in identifying the rule that is being modified. This is achieved by examining the purpose of the legislative provision which is under scrutiny [para [38] and [39]]. S.33 and Part 1 of Schedule 2 to the RTOA and s.103(1)(b) of the RTA contain, in effect, two rules of Scots criminal law. Firstly, that the overall maximum sentence in respect of driving while disqualified is 12 months. Secondly, the route by which the maximum sentence can be imposed. The former provision is plainly a rule that is special to the RTOA and RTA and is a reserved matter that the Scottish Parliament has no power to modify. However, the latter is a rule concerning Scots criminal jurisdiction and procedure which is not reserved. The change in the law effected by s.45 does not alter the maximum period of imprisonment for the offence of driving while disqualified. It relates to the procedure which determines whether the sheriff has power to impose that sentence. The rule of Scots law being modified is the rule of Scots criminal procedure. This rule of procedure is not special to the RTOA or RTA [para [37]]. Had it been necessary to address the point, para 3 of Schedule 4 (which provides that legislation having incidental or minor effects upon reserved matters shall be within competence) could not, contrary to the conclusion reached by the HCJ, render s.45 within the Scottish Parliaments legislative competence. s.45 constituted an important modification to a rule of Scots criminal procedure that could not be regarded as incidental or consequential [para [40]]. Accordingly the court holds that s.45 is within the legislative competence of the Scottish Parliament. The appeals are dismissed and remitted to the HCJ for any further orders that may be required [para [43]]. Dissenting Judgments Lord Rodger agreed that s.45 did not relate to a reserved matter [para [119]]. But he would have held that the provision of the RTOA prescribing the maximum term of imprisonment for a summary conviction for driving while disqualified is special to a reserved matter, in the sense that the United Kingdom Parliament has chosen it specifically for that offence. Lord Rodger did not agree that the purpose of the modifying provision can be a relevant consideration in identifying the rule of Scots law that is being modified for the purpose of para 2(3) of Schedule 4 [para [143]]. He also did not agree that the purpose of a provision which purports to modify a rule of Scots law can be used to determine whether that rule is special to a reserved matter [para [145]]. Lord Kerr agreed with Lord Rodger.
This appeal and cross appeal arise out of claims made by certain investment trust companies (the ITCs) for refunds of VAT which they had paid on the supply of investment management services from investment managers (the Managers). The VAT transpired not to be due, because the supplies in question were exempt from VAT under EU law. The Managers who received VAT from the ITCs paid it to the Commissioners, believing they were entitled to deduct from the VAT chargeable on their supplies to the ITCs (output tax) the tax which they had themselves paid on supplies received for the purposes of their businesses (input tax). Out of a notional 100 received from the ITCs, the Managers might have therefore accounted to the Commissioners for only 75 after deducting 25 in respect of input tax. When it transpired that the supplies were VAT exempt, the Managers made claims to the Commissioners for refunds under s.80 of the VAT Act 1994, and passed on the refunded VAT and interest to the ITCs. However, under the statute, the Managers were only entitled to a refund of the VAT they had actually paid the Commissioners (i.e. the notional 75). In addition, they could not claim refunds in relation to accounting periods excluded by the three year statutory limitation period under s.80 (the dead periods). The ITCs did not receive the full amount of VAT they had been mistakenly charged and brought proceedings against the Commissioners seeking remedies in unjust enrichment and EU law in respect of the notional 25 and the dead periods. The judge found that the Commissioners had been enriched by the full amount of VAT the ITCs paid to the Managers (i.e the notional 100), but that the ITCs cause of action at common law was excluded by the statutory scheme, which protected the Commissioners from liability other than as provided in s.80. EU law required that exclusion to be disapplied so as to permit a claim, but still subject to the limitation period in s.80. The claim in relation to the dead periods was therefore dismissed, but payment of the notional 25 outside those periods was ordered. Both sides appealed, and the Court of Appeal allowed both appeals. The statutory scheme did not exclude a common law claim, but it was wrong to treat the Commissioners as having been enriched to the extent of the notional 100, where they had only received 75. There was no claim in EU law for the remaining amounts retained by the Managers. Judgment was given for the notional 75 claim in relation to the dead periods, and the claim for the notional 25 (for all periods) was dismissed. The Supreme Court unanimously allows the Commissioners appeal and dismisses the ITCs cross appeal. Lord Reed gives the judgment, with which the rest of the Court agrees. The principal issues to be decided were (i) whether the ITCs in principle could make out a claim in unjust enrichment against the Commissioners, (ii) whether such a claim was excluded by the statutory scheme under s.80 and (iii) whether the lack of any such claim was incompatible with EU law. The extent of the Commissioners enrichment was limited to the notional 75 which they received from the Managers. It did not include the notional 25 which the Managers retained as an input tax credit, because that was not an amount which the Commissioners owed to the Managers: it was only deductible from output tax that was properly due [25 31]. As to whether the Commissioners enrichment was at the expense of the ITCs, there has been uncertainty surrounding the approach to be adopted. It would be unwise to attempt a definitive statement of the circumstances in which the at the expense of requirement would be satisfied, but as a general rule it will be satisfied where there is a direct transfer of value from the claimant to the defendant, and in situations equivalent to direct transfers, for example where an agent is interposed, or where a series of coordinated transactions can be treated as a single transaction. A further situation where the requirement is satisfied is where the claimant discharges a debt owed by the defendant to a third party. The possibility of genuine exceptions to a direct provision rule should not be ruled out, but beyond direct transfers of value, or equivalent situations, it is generally difficult to maintain that the defendant has been enriched at the claimants expense. For there to be a transfer of value, the claimant must incur a loss through the provision of the benefit: incidental benefits alone cannot constitute a transfer of value [32 66]. In the present case there is no direct transfer of value, or equivalent situation. The ITCs payment to the Managers became part of the Managers general assets, and was not impressed with a special purpose trust, while the Managers VAT liability to the Commissioners arose independently of whether the ITCs actually paid VAT. The two transactions are separate and cannot be collapsed into a single transfer of value from the ITCs to the Commissioners [67 74]. Even if the ITCs had in principle been able to make out a claim in unjust enrichment, such a claim would have been excluded by s.80. The statute creates an exhaustive code of remedies not just for suppliers who have accounted to the Commissioners, but for the ultimate consumers as well. This is because it set out arrangements for the supplier to reimburse the consumer, subject to a limitation period, removing the need for the consumer to have a direct remedy against the Commissioners. Parliament cannot have intended this scheme for reimbursement of consumers to exist concurrently with non statutory liabilities that would be inconsistent with the rationale of the statutory scheme [75 88]. The application of the statutory scheme in the present case is compatible with EU law. The European Court of Justice has accepted that in principle, a system under which only the supplier is entitled to seek reimbursement of VAT from the tax authorities, and the consumer can seek restitution from the supplier, meets the requirements of EU law. In cases where the reimbursement of the consumer by the supplier would be impossible or excessively difficult, the principle of effectiveness would require that the consumer be able to bring a claim directly against the tax authorities. That was not the case here, and it would not be appropriate to consider what the position would be in a hypothetical case where a supplier was insolvent [89 94].
This appeal concerns the interpretation of a provision of the Housing Act 1996 (the 1996 Act) relating to the duties of local housing authorities to provide accommodation for those who are, or claim to be, homeless or threatened with homelessness. Section 175 of the 1996 Act states, in essence, that a person is homeless if he has no accommodation available for his occupation in the United Kingdom or elsewhere. According to section 176, accommodation is to be regarded as available for a persons occupation only if it is available for occupation by him together with any other person who normally resides with him as a member of his family, or any other person who might reasonably be expected to reside with him [3]. The phrase available for his occupation is relevant not only to establishing whether a person is homeless for the purposes of the 1996 Act, but also to identifying what duties a local authority owes to a person who is, or claims to be, homeless [4]. In 2004, Camden London Borough Council accepted that it owed a duty under the 1996 Act to provide accommodation to Ms Sharif, her father (a man in his 60s with certain health problems) and her sister (aged 14), on the basis that Ms Sharif was homeless. They were initially accommodated by the Council in a hostel and later moved to a three bedroom house owned by a private sector landlord. In 2009, the Council asked Ms Shariff, her father and her sister to move to two units on the same floor of a block of flats in North London. Each unit comprised a single bed sitting room with cooking facilities, plus a bathroom. The two units were separated by only a few yards. It was envisaged by the Council that Ms Sharif and her sister would share one unit, and the other unit (suitable only for one person) would be used by her father [8]. Ms Sharif refused the offer, saying that the accommodation was not suitable because her fathers medical condition required them to live in the same unit of accommodation [9]. Ms Sharif requested a review of the Councils decision, but the Councils reviewing officer concluded that the accommodation offered was suitable [9]. Ms Sharif appealed to the London Central County Court on a number of grounds, including the suggestion that the accommodation was not suitable and that section 176 of the 1996 Act precluded the Council from offering Ms Sharif and her family two separate units of accommodation [10]. The County Court dismissed the appeal [11]. There was no further appeal on the issue of the suitability of the accommodation. However, the Court of Appeal reversed the County Courts decision on the basis that the words together with in section 176 require a homeless family to be housed in the same unit of accommodation [12]. The Council appealed to the Supreme Court. The Supreme Court allows the Councils appeal. It holds that section 176 of the 1996 Act does not preclude local authorities from offering a homeless family two separate units of accommodation. The lead judgment for the majority is given by Lord Carnwath. Lord Kerr gives a dissenting judgment. The majority concludes that, whilst one of the main purposes of the 1996 Act is to ensure that members of a homeless family are not split up by local housing authorities, section 176 does not prevent a local housing authority offering a homeless family two separate units of accommodation if they are so located that they enable the family to live together in practical terms. That is a factual judgment to be made by the local housing authority [17]. The 1996 Act requires accommodation provided by a local housing authority to be suitable. However, Ms Sharif no longer denies that the two flats offered to her by the Council meet that requirement [18, 29]. Neither the word accommodation nor the words together with in section 176 imply that a homeless family must be accommodated in the same unit of accommodation [5, 17]. Had the Councils reviewing officer been asked to answer the question of whether section 176 prohibits the Council from housing a homeless family in two separate units of accommodation, it is reasonably clear that he would have answered in the negative. The main obstacle to family living which had been raised before the reviewing officer had been the problem of caring for Ms Sharifs father in a separate unit of accommodation. That problem was discounted by the reviewing officer, on the basis that the problem of communication between the two flats would be no greater than in a house with two floors [18]. The arguments made on behalf of Ms Sharif would produce surprising results. For example, the Council would not be able to improve the position of a homeless family residing in an overcrowded house or flat by offering them an additional neighbouring unit of accommodation, even on a temporary basis [19]. Ms Sharif also accepted that two separate rooms in a hostel or hotel would satisfy the requirements of section 176 of the 1996 Act. However, the majority found it hard to see why that should be treated differently from the provision of two adjacent flats [20, 30]. Lady Hale emphasises that there is no requirement under the 1996 Act for local housing authorities to provide a communal living space to those who are, or claim to be, homeless [30]. The majority emphasises that their interpretation of section 176 of the 1996 Act does not give local housing authorities a free hand. It is a fundamental objective of the 1996 Act to ensure that families can live together in a true sense; accommodation provided by a local housing authority will not satisfy section 176 unless it enables that objective to be achieved [23]. Lord Hope says that the test is not to be exploited by local housing authorities; it must be applied reasonably and proportionately [28]. Lord Kerr, dissenting, says that section 176 requires a local housing authority to accommodate a homeless family in the same unit of accommodation. The accommodation must be of a character that will allow all members of the family to live within it [34]. Lord Kerr concludes that the words together with in section 176 imply joint occupation of the same unit of accommodation [32, 33]. He takes the view that sufficient proximity is very different from living together [35].
The proceedings arose out of the admitted and continuing failure of the United Kingdom since 2010 to secure compliance in certain zones with the limits for nitrogen dioxide levels set by European Union law, under Directive 2008/50/EC. In a judgment of 1 May 2013, the Supreme Court referred certain questions to the Court of Justice of the European Union (CJEU) concerning the interpretation of articles 13, 22 and 23 of the Directive. Article 13 laid down limit values for the protection of human health; in respect of nitrogen dioxide, certain limits may not be exceeded from the relevant date, i.e. 1 January 2010. Article 22 provided a procedure for a member state to apply to the European Commission to postpone the compliance date for not more than five years in certain circumstances and subject to specified conditions. Article 23 imposed a general duty on member states to prepare air quality plans for areas where the limits were exceeded. By the second paragraph of article 23(1), in cases where the attainment deadline (was) already expired, the air quality plans must set out appropriate measures, so that the period for which the member state would be in exceedance of the limits can be kept as short as possible. Where an application was made under article 22, the air quality plan had to include the information listed in Annex XV, section B of the Directive. This included information on all air pollution abatement measures considered, including five specified categories of measures, such as for example (d) measures to limit transport emissions. The required contents of air quality plans prepared under article 23 were in Annex XV section A. ClientEarth argued that the UK was required by article 22 to apply for postponement in respect of all zones where compliance with the air quality limits could not be met by the original deadline. The Secretary of State had not applied to postpone the deadline for some of the UKs non compliant zones, but instead in 2011 had produced air quality plans under article 23, predicting compliance would not be achieved until 2025. The Secretary of State argued that it was not required to apply for postponement under article 22. The Supreme Court in its judgment of 1 May 2013 declared the UK to be in breach of article 13, and referred the following questions to the CJEU: (1) Where in any zone of the UK the state has not achieved conformity with the nitrogen dioxide limit values by the 2010 deadline, is a member state obliged to seek postponement of the deadline in accordance with article 22? (2) If so, in what circumstances (if any) may a member state be relieved of that obligation? (3) To what extent (if at all) are the obligations of a member state which has failed to comply with article 13 affected by article 23? (4) In the event of non compliance with articles 13 or 22, what remedies must a national court provide? The CJEU answered these questions in a judgment dated 14 November 2014 (C 404/13). The present proceedings considered what further orders, if any, should be made by the Supreme Court. The Supreme Court unanimously orders that the government must submit new air quality plans to the European Commission no later than 31 December 2015. Lord Carnwath gives a judgment with which all members of the Court agree. The CJEU decided to reformulate the first two questions referred. This introduced ambiguity enabling each party to claim success on the issue of whether the Secretary of State had breached article 22 by not applying to extend the deadline. However, it is unnecessary to make a final ruling on the meaning of the CJEUs judgment on these questions. [5] The CJEUs answer to the third question was that the fact that an air quality plan complying with article 23(1) has been drawn up does not in itself mean the member state has met is obligations under article 13. Its answer to the fourth question was that where a member state has failed to comply with article 13 and not applied to postpone the deadline under article 22, it is for the national court to take any necessary measure so that the authority establishes the plan required by the Directive in accordance with the conditions laid down by the latter. [6] The time taken by these proceedings has meant that the article 22 issue has no practical significance, except in relation to the requirements of Annex XV section B, which apply to a plan produced under article 22 but not, in terms, to a plan under article 23. However, as the Commission explained in its observations to the CJEU, the requirements of article 23(1) are no less onerous than those under article 22. The court is able where necessary to impose requirements which are appropriate to secure effective compliance at the earliest possible opportunity. The checklist of measures under paragraph 3 of section B have to be considered in order to demonstrate compliance with either article 22 or 23. [23 24] It is unnecessary to reach a concluded view on whether the article 22 procedure was obligatory. Lord Carnwath saw force in the Commissions reasoning, which treats article 22 as an optional derogation, but makes clear that failure to apply for a postponement, far from strengthening the position of the state, rather reinforces its essential obligation to act urgently under article 23(1) in order to remedy the danger to public health as soon as possible. [25 26] The Secretary of States argument that there was no basis for an order quashing the 2011 plans, nor a mandatory order to replace them, was rejected. The critical breach is of article 13, not of articles 22 or 23. The CJEU judgment leaves no doubt as the seriousness of the breach, which has been continuing for more than five years, nor as to the responsibility on the national court to secure compliance. Further, during those five years the prospects of early compliance have become worse (2014 projections predicting non compliance in some zones after 2030). The Secretary of State accepted that a new plan has to be prepared. The new government should be left in no doubt as to the need for immediate action, which is achieved by an order that new plans must be delivered to the Commission not later than 31 December 2015. [19, 28 29, 33]
The issue in this appeal is whether a failure by the Respondent to comply with a procedural requirement in its policy relating to the detention of foreign national prisoners results in their detention being unlawful, so as to allow the detainee to advance a claim in tort for false imprisonment. Shepherd Masimba Kambadzi is a Zimbabwean national. He entered the UK lawfully, but remained here after his leave to remain expired. In 2005, he was convicted of assault and sexual assault, sentenced to one years imprisonment and ordered to be registered as a sex offender for five years. Prior to his being released from prison, the Respondent decided to make a deportation order against the Appellant. Paragraph 2(2) of Schedule 3 to the Immigration Act 1971 (the 1971 Act) gives the Secretary of State the power to detain foreign nationals pending the making of a deportation order and the Appellant was detained under that power on 7 March 2006. On 24 August 2007, a deportation order was made against the Appellant, after which he was detained under paragraph 2(3) of Schedule 3 to the 1971 Act. In all, he was detained for 27 months until 13 June 2008, when he was granted bail. He has not yet been returned to Zimbabwe because of conditions in that country. The common law has recognised limits on the extent of the power to detain under paragraphs 2(2) and (3) of Schedule 3 to the 1971 Act (the Hardial Singh principles, set down in R v Governor of Durham Prison Ex p Hardial Singh [1984] 1 WLR 904). The Respondent had a policy which detailed how the power to detain was to be exercised. It provided, for example, that all reasonable alternatives to detention must be considered before detention was authorised. The policy also provided for detention to be subject to review at regular intervals. It specified the frequency of review and the grade of official which was to carry them out. The policy required the Appellants detention to be reviewed on five occasions during the first month and then monthly thereafter. The Appellants detention was not reviewed in accordance with that policy. By the date of the first instance hearing of this claim, he had been entitled to 22 monthly reviews of the lawfulness of his detention, in addition to the five reviews which should have taken place in the first month. His detention had been reviewed only ten times. Only six of those reviews had been conducted by officials of the required seniority and, of those six, two were flawed by material errors of fact. The substantive requirements for detaining the Appellant were, however, met throughout the period of his detention: had the Respondent carried out the reviews, it could justifiably have decided to continue to detain him. While still detained, the Appellant raised a judicial review, seeking a declaration that he was unlawfully detained and damages. At first instance, Munby J granted a declaration that the Appellant had been unlawfully detained for various periods amounting to about 19 months and gave directions for the assessment of damages, but he declined to order his release. (The Appellant was subsequently granted bail in other proceedings.) The Court of Appeal allowed the Secretary of States appeal and held that the Appellants detention had been lawful throughout. Although the Supreme Court heard the appeal in February 2010, it delayed handing down its judgment so as to be enable a court of nine Justices to consider the case of R (Lumba) v Secrteary of State for the Home Department [2011] UKSC 12. That case also considered the legality of the detention of foreign national prisoners where the Secretary of State has not complied with the terms of the published policy relating to detention. The Supreme Court, by a majority, allows the appeal. Lord Hope gives the leading judgment; Lady Hale and Lord Kerr issue separate concurring judgments. The majority holds that the Appellants detention was unlawful for the periods in respect of which no review was carried out and that he does have a claim in tort for false imprisonment in respect of those periods. The amount of damages is yet to be ascertained, but will be nominal if it is found that the Appellant would have been detained even if his detention had been reviewed as the policy required. Lord Brown gives a dissenting judgment, with which Lord Rodger agrees. The Secretary of State was under a public law duty to adhere to the terms of the policy relating to reviews unless there were good reasons not to: [36], [39], [66]. The majority of the Court holds that the Respondents unlawful failure to review the Appellants detention, as required by the policy, resulted in his detention being unlawful. The court rejects the argument that because the breach of public law related to a procedural requirement, it did not affect the legality of the detention: [69] [73], [85]. Some procedural requirements go to the legality of the detention and some do not: [71]. The policy was sufficiently closely related to the authority to detain to qualify the Secretary of States discretion under the 1971 Act: [51]. The very point of the review was to ensure that the detention was lawful: [73], [86]. The public law error bore directly on the decision to detain the Appellant and therefore satisfied the test adopted by the majority in Lumba for determining when a public law error will result in detention being unlawful: [42], [88]. The Appellants detention was not unlawful, however, where the only defect in the decision to continue detention was that the review had been carried out by an official of the wrong grade: [60]. As the Court also held in Lumba, it was no defence to the claim that there were grounds which justified the Appellants detention: [54], [73], [88]. False imprisonment is a trespass to the person and actionable in itself, without proof of loss or damage: [74]. The result of the reviews which should have taken place is, however, relevant to assessing damages. A defendant is liable only for the loss which his wrongful act has caused. The full facts of this case are yet to be established, but if it is found that the claimant would not have been released had proper reviews been carried out, he will only be entitled to nominal damages: [55] [56], [74], [89]. Lord Brown (with whom Lord Rodger agrees) would have held that the failure to review the Appellants detention did not result in the Appellants detention being unlawful. They hold that the policy did not confer upon the Appellant an entitlement to be released, but only an entitlement to be reviewed for release: [107]. Once properly detained, a detainee remains lawfully imprisoned unless and until released on bail or by the Secretary of States direction, or he establishes a substantive entitlement to release: [111]. Lumba does not compel the majoritys result, because it was concerned with a substantive entitlement under the policy and not a procedural one, and because it also held that not every breach of public law resulted in detention being unlawful: [116] [118].
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].
This appeal raises two important questions about the interpretation and application of the Planning (Listed Buildings and Conservation Areas) Act 1990 (the Listed Buildings Act). The case concerns the correct treatment of a pair of early 18th century lead urns resting on limestone pedestals (the items). The items were originally commissioned for a historic garden at Wrest Park in Bedfordshire where they remained until 1939 but have been moved a number of times since then. In 1973 they were moved by Major Dill (Mr Dills father) to the garden of Idlicote House. In June 1986 the items were added to the list of listed buildings under s.54 of the Town and Country Planning Act 1971. There is no record of notice of the listing having been served, but in due course it was included in the register of local land charges. In 1993 the Mr Dill (the appellant) acquired the house and the items. He was not aware of the items presence on the list. In 2009 he sold them at auction. On 29 April 2015 the district council (the second respondents) wrote to the Mr Dill informing him that listed building consent had been required for the items to be removed. His retrospective application for consent was refused on 11 February 2016, following which on 26 April 2016 the council issued a listed building enforcement notice requiring the reinstatement of the items at Idlicote House. He appealed against the refusal of listed building consent and the issuing of the enforcement notice to the Secretary of State for Housing, Communities and Local Government (the first respondent). The grounds of appeal included the argument that the items were not buildings for the purposes of the Listed Buildings Act. The appeals were dismissed by a planning inspector on 19 January 2017. He took the view that the status of the items as buildings was established by the listing; that he could not reconsider the issue. Mr Dills appeal was rejected by the High Court (Singh J) and the Court of Appeal (McCombe and Coulson LJJ). Both courts below held that listing was conclusive of the items being buildings. The Supreme Court unanimously allows the appeal. Lord Carnwath gives the sole judgment, with which the other Justices agree. Whether listing is conclusive of the items being buildings for the purposes of the Listed Buildings Act It is a principle that individuals affected by a legal measure should have a fair opportunity to challenge the measure and to vindicate their rights in court proceedings. In applying this principle, the context of the particular statutory scheme in question is relevant [20]. In the parallel context of breach of planning control, the statutory grounds of appeal are so wide that they include every aspect of the merits of the decision to serve an enforcement notice. It is hard to see why it should be any different in the context of a listed building enforcement notice. Indeed, the question of whether something is a building may raise difficult issues of factual judgment which an inspector appointed under the statutory scheme is more appropriately placed to decide than the High Court on judicial review [22]. Under the statutory scheme a listed building means a building which is included in [the] list. It is an essential element that the thing in issue be a building. If it is not in truth a building at all, there is nothing to say that the mere inclusion in the list will make it otherwise. Section 7 prohibits the demolition of a listed building, and s.9(1) makes contravention of that prohibition a criminal offence. But there is nothing to prevent the accused arguing that the item demolished is not a building and so not within the definition [24]. As such, the question of whether the thing listed is in fact a building can be considered by the inspector on a statutory appeal [25]. The enforcement appeal must be remitted to the First Respondent for redetermination [26]. The application for listed building consent can be dealt with by agreement [27]. The relevant test for a building There is a need for general guidance on the legal principles in play in determining whether something constitutes a building [28]. In Skerritts of Nottingham v Secretary of State for the Environment Transport and Regions [2000] JPL 1025 a three fold test was adopted considering size, permanence and degree of physical attachment [46]. This case is important as the three fold test was treated as of general application in the planning context [50]. Along with other jurisprudence, it indicated a move away from real property analogies. Lacking a preferable alternative, and as the same definition of building as was in issue in Skerritts was adopted in the Listed Buildings Act, it is difficult to see any reason in principle why the same test should not apply [52]. The application of this test to the items is something to be considered in the context of the remittal of the appeal to the First Respondent [58].
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.
There is a recognised need for private pension schemes to provide some form of indexation of pensions to protect the value of members pensions against price inflation. To this end, Barnardos adopted a pension scheme which provides for pensions in the course of payment to be increased by the prescribed rate, which is defined as an increase at the rate of the lesser of: (a) 5%, and (b) the percentage rise in the Retail Prices Index (if any) over the year ending on the previous 31 December. The definition of Retail Prices Index lies at the heart of the dispute: Retail Prices Index means the General Index of Retail Prices published by the Department of Employment or any replacement adopted by the Trustees without prejudicing Approval. Where an amount is to be increased in line with the Retail Prices Index over a period, the increase as a percentage of the original amount will be equal to the percentage increase between the figures in the Retail Prices Index published immediately prior to dates when the period began and ended, with an appropriate restatement of the later figure if the Retail Prices Index has been replaced or re based during the period (the Definition). The critical clause in the Definition is or any replacement adopted by the Trustees without prejudicing Approval. Barnardos argues that this clause empowers the trustees to adopt another index which they consider a more suitable measure of price inflation (such as the Consumer Prices Index (the CPI)), regardless of whether or not the Retail Price Index (RPI) continues to be published. Representatives of members of the scheme, who are concerned that the adoption of the CPI as the index would over time reduce benefits which they receive from the scheme, argue that the clause does not empower the trustees to depart from the RPI for the purposes of the indexation if the RPI continues to be published. The trustees adopt a neutral stance. The trustees sought a ruling on the meaning of the Definition. The High Court held that, on a proper construction, the Definition did not empower the trustees to adopt an index other than the RPI unless the RPI had been discontinued as an officially published index and replaced. Barnardos appealed this decision. The Court of Appeal by majority (Lewison and McFarlane LLJ, Vos LJ dissenting) dismissed the appeal. Barnardos 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 deciding which interpretative tools will best assist in ascertaining the meaning of a contract or trust, and the weight to be given to each of the relevant interpretative tools, English courts must have regard to the nature and circumstances of the particular instrument [13]. A pension scheme has several distinctive characteristics which are relevant to the courts selection of the appropriate interpretative tools. First, it is a formal legal document which has been prepared by skilled and specialist legal draftsmen. Secondly, unlike many commercial contracts, it is not the product of commercial negotiation between parties who may have conflicting interests and who may conclude their agreement under considerable pressure of time. Thirdly, it is an instrument which is designed to operate in the long term, defining peoples rights long after the economic and other circumstances, which existed at the time when it was signed, may have ceased to exist. Fourthly, the scheme confers important rights on parties, the members of the pension scheme, who were not parties to the instrument and who may have joined the scheme many years after it was initiated. Fifthly, members of a pension scheme may not have easy access to expert legal advice or be able readily to ascertain the circumstances which existed when the scheme was established [14]. In light of these characteristics, it is appropriate for the Court to give weight to textual analysis, by concentrating on the words which the draftsman has chosen to use and by attaching less weight to the background factual matrix than might be appropriate in certain commercial contracts [15]. However, the emphasis on textual analysis as an interpretative tool does not derogate from the need both to avoid undue technicality and to have regard to the practical consequences of any construction. Such an analysis does not involve literalism but includes a purposive construction when that is appropriate [16]. The Court is persuaded that the correct interpretation of the first sentence of the Definition is that RPI means the RPI or any index that replaces the RPI and is adopted by the trustees [19]. The Court reaches this view for the following eight reasons. First, the draftsman chose to use the word replacement which does not naturally suggest the selection of an alternative to an option which remains available. It is, nonetheless, capable of bearing that meaning, and one must look to the context for guidance [20]. Secondly, the word order and grammatical construction of the phrase a replacement adopted by the trustees suggest that the RPI must first be replaced and that the trustees adopt the replacement. [21]. Thirdly, the existence of a discretion on the part of the trustees and the requirement that the adoption should not prejudice the approval of the Commissioners of Inland Revenue (CIR) do not militate against this view [22]. Fourthly, consistency within the rules of the scheme as a whole, and indeed within the Definition itself, would suggest that it is the relevant official authority and not the trustees who are to effect the replacement in the first sentence of the Definition [23]. Fifthly, the CIR guidance on approval of schemes does not assist because the draftsman has not chosen to use wording similar to that guidance in the Definition [25]. Sixthly, the superseded rules do not assist in interpreting the Definition [26]. Seventhly, a provision which provides for the circumstance of the official replacement of a cost of living index does not lack a rational purpose [27]. Eighthly, while the requirement of indexation by reference to the RPI imposes obligations on Barnardos and contributes to the pension deficit at a time when many see the CPI as a more reliable index for the cost of living, the Court must construe the rules of the scheme without any preconceptions as to whether a construction should favour the sponsoring employer or the members [28].
On 26 May 2013, the respondent, Ms Bianca Cameron, was injured when her car collided with a Nissan Micra. It is not in dispute that the incident was due to the negligence of the driver of the Micra. The registration number of the Micra was recorded, but the driver made off without stopping or reporting the accident to the police and has not been heard of since. Mr Naveed Hussain, the registered keeper, was not the driver and has declined to identify the driver. He has been convicted of failing to disclose the drivers identity. The car was insured under a policy issued by the appellant, Liverpool Victoria Insurance Co Ltd, to a Mr Nissar Bahadur, whom the company believes to be a fictitious person. Neither Mr Hussain nor the driver was insured under the policy to drive the car. Ms Cameron initially sued Mr Hussain for damages. The proceedings were amended to add a claim against Liverpool Victoria Insurance for a declaration that it would be liable to meet any judgment against him. The insurer served a defence, denying liability on the ground that there was no right to obtain a judgment against him as there was no evidence that he was the driver. Ms Cameron then applied to amend her claim form and particulars of claim. She sought to substitute for Mr Hussain, as defendant, the person unknown driving vehicle registration number Y598 SPS who collided with vehicle registration number KG03 ZJZ on 26 May 2013. District Judge Wright dismissed that application and entered summary judgment for the insurer. HHJ Parker dismissed Ms Camerons appeal. On further appeal, the Court of Appeal allowed the appeal by a majority (Gloster and Lloyd Jones LJJ, Sir Ross Cranston dissenting). The majority considered that the court had a discretion to permit an unknown person to be sued whenever justice required it and that an alternative right of claim against the Motor Insurance Bureau (MIB) was irrelevant. Sir Ross Cranston would have dismissed the appeal in light of the alternative right to an MIB claim. Liverpool Victoria Insurance appealed to the Supreme Court in relation to two issues: (1) the power to issue or amend the claim form and (2) the compatibility of the Road Traffic Act 1988 (the 1988 Act) with the Sixth Motor Insurance Directive (2009/103/EC). The Supreme Court allows the appeal. The Court of Appeals order is set aside and that of District Judge Wright is reinstated. Lord Sumption gives the lead judgment, with which all the Justices agree. Part VI of the Road Traffic Act 1988 applies in this appeal. Section 145 requires there to be an insurance policy against third party risks in relation to the use of the vehicle by the particular driver, while section 151(5) requires the insurer to satisfy any judgment falling within section 151(2), subject to certain conditions. Under section 151(2)(b), an insurer who has issued a policy in relation to the use of a vehicle is liable on a judgment, even where it was obtained against an uninsured driver. [3] The MIB has entered into agreements with the Secretary of State to compensate third party victims of road accidents not even covered by section 151(2)(b). This means victims suffering personal injury or property damage caused by (1) uninsured vehicles and (2) drivers who cannot be traced. Clause 4(d) of the 2003 Untraced Drivers Agreement (the 2003 Agreement) is applicable in Ms Camerons case. [4] It is a fundamental feature of the statutory scheme of compulsory insurance in the UK that it does not confer on victims a direct right of recovery against an insurer for the underlying liability of the driver. The only direct right against the insurer is the right to require it to satisfy a judgment against the driver, under section 151, once the drivers liability has been established in legal proceedings. Consistent with this approach, the 2003 Agreement assumes that judgment cannot be obtained against the driver if he cannot be identified, and therefore the only recourse is against the MIB, not the insurer. [5, 22] The general rule remains that proceedings may not be brought against unnamed parties, as is implicit in the limited exceptions contemplated by the Civil Procedure Rules (CPR) [9]. The main exceptions are: (1) possession actions against trespassers, (2) actions and orders where some of the wrongdoers were known so they could be sued both personally and as representing their unidentified associates and (3) the wider jurisdiction recognised in Bloomsbury Publishing Group Plc v News Group Newspapers Ltd [2003] 1 WLR 1633 (Ch) [10]. The key distinction is between two classes of unnamed defendant cases: (1) anonymous defendants who are identifiable but whose names are unknown and (2) defendants, such as in most hit and run drivers, who are not only anonymous but cannot even be identified. In category (1), defendants are described in such a way that it is at least possible to locate or communicate with them, and to determine whether they are the person described in the claim form. In category (2), this is not possible. [13] This appeal is not directly concerned with service it is about the issue or amendment of the claim form but the legitimacy of issuing or amending can be tested against the possibility of service [14]. An identifiable but anonymous defendant can be served, if necessary by CPR r.6.15 alternative service [15]. Interim injunction cases can fall in category (1), because the process of enforcing the injunction will sometimes be enough to bring the proceedings to the defendants attention, as in Bloomsbury [15]. However, an unknown person is not identified simply by referring to past actions [16]. Proceedings against such a person (in category (2)) offend the fundamental principle of justice that a person cannot be made subject to the jurisdiction of the court without having such notice of the proceedings as will enable a fair hearing [17 18]. While CPR r.6.15 permits alternative service, the mode of service should be such as can reasonably be expected to bring the proceedings to the defendants attention [20 21]. Applying these principles to the present appeal, alternative service against an unidentifiable person referred to in the proceedings only by a pseudonym or description cannot be justified. In particular, ordinary service on the insurer would not constitute service on the driver, and alternative service could not be expected to reach the driver of the Micra. Nor would it be appropriate to dispense with service under CPR r.6.16 in a case where it could not be shown that the defendant knew of the proceedings. [21 26] As to the EU law issue on the Sixth Motor Insurance Directive, the Supreme Court considers no point on the Directive arises because: (1) Ms Cameron is not trying to assert a direct right against the insurer for the underlying wrong (her claim is for damages from the driver) and (2) it is consistent with the Directive to require a claim against the MIB, not the insurer, in this class of case [27 30].
An EU citizen with a permanent right of residence in a host member state may have that right removed in the case of abuse of rights or fraud, such as marriages of convenience. The issue in this appeal is which party bears the burden of proof of establishing that a proposed marriage is one of convenience. Ms Sadovska is a citizen of Lithuania. She moved to the United Kingdom in 2007 and has lived and worked here lawfully since, acquiring a right of permanent residence as an EU citizen pursuant to Directive 2004/38/EC (the Directive). Mr Malik is a citizen of Pakistan who entered the UK with a student visa in May 2011 and has remained here unlawfully after his visas expiry in April 2013, in breach of section 10(1)(a) Immigration and Asylum Act 1999. Ms Sadovska and Mr Malik (the appellants) maintain that they have been in a relationship with each other since February 2013, and decided to marry in January 2014. On 11 April 2014, the appellants solicitors notified the Home Office in Glasgow that they intended to marry on 17 April 2014 at Leith Registry Office and invited officials to interview them before the wedding. Immigration officers arrived at the Registrars Office, interviewed the appellants separately, and then detained them before they were able to marry. Both were then served with notice that they were persons liable to removal from the UK: Mr Malik by having stayed after the expiry of his visa and Ms Sadovska by giving the Secretary of State reasonable grounds to suspect the abuse of her EU right of residence by attempting to enter into a marriage of convenience, contrary to regulation 19(3)(c) Immigration (European Economic Area) Regulations 2006. The appellants appealed to the First tier Tribunal. The judge held that the burden of proof was on the appellants to establish that their proposed marriage was not a marriage of convenience, and that they had failed to do this, having regard to the inconsistencies in their accounts at interview. The appellants appealed unsuccessfully to the Upper Tribunal and to the First Division of the Inner House, arguing that the tribunal had adopted the wrong approach to the burden of proof, and that the Secretary of State had failed to prove that the appellants were guilty of fraud, when the totality of the evidence relating to their relationship and the circumstances in which the interviews had taken place was taken into account. The Supreme Court unanimously allows the appeal and remits the case for a full re hearing by the First tier Tribunal. Lady Hale gives the only substantive judgment. It was important to identify the different rights the appellants individually enjoyed, and thus what the Secretary of State needed to establish in order to remove them: Ms Sadovska had a right of permanent residence in the UK and could not be expelled unless she had abused her rights within the meaning of article 35 of the Directive. A Communication in 2014 from the European Commission giving guidance on the Directive explained that a marriage of convenience was a marriage contracted with the predominant purpose of enjoying the right of free movement. It was not enough that the marriage might bring incidental immigration and other benefits, and the predominant purpose must be the purpose of both parties [21 24, 29]. Mr Malik was liable to be removed as an over stayer. Had he succeeded in marrying Ms Sadovska he would have acquired a right of residence in the UK under the Directive as a family member of an EU national working here. The Directive also required member states to facilitate the entry and residence of the partner of an EU citizen if it was a durable relationship, duly attested [25 26]. Both appellants enjoyed rights under articles 8 and 12 of the European Convention on Human Rights to a private and family life, and to marry and found a family [27]. The 2006 Regulations permitted the Secretary of State to take steps to remove Ms Sadovska on the basis of reasonable grounds to suspect that she had entered or attempted to enter a marriage of convenience, but she was entitled to an appeal where the facts and circumstances were fully investigated. The tribunal had to form its own view of the facts from the evidence presented. It was not for her to establish that her relationship with Mr Malik was a genuine and lasting one, but for the Secretary of State to establish that it fell within the definition of a marriage of convenience [28]. The tribunal had also to be satisfied that the removal of Ms Sadovska from the country where she had lived and worked for so long with other family members would be a proportionate response to the abuse of rights, rather than merely the prevention of the marriage [30]. As the tribunal had not analysed Ms Sadovskas rights this way, it was not possible for the Supreme Court to conclude that the Secretary of State had proved that the narrow grounds for taking away her established rights existed [31]. Mr Malik had no established rights but if he could produce evidence of a durable relationship with Ms Sadovska, it would be for the Secretary of State to show that it was not, or that there were other good reasons to deny him entry. Again, the Supreme Court could not conclude that, had his case been approached in the right way, the outcome would have inevitably been the same [32 33]. Accordingly, the burden of proof of establishing that the proposed marriage is one of convenience falls on the Secretary of State. The appeal is allowed and the case remitted for a full rehearing by the First tier Tribunal, at which the inconsistencies in the appellants interviews will be considered along with their evidence supportive of a genuine relationship dating back several months, and the circumstances in which the interviews took place will also be taken into account [34]. The appellants ECHR rights did not add anything further to their claims in the light of this conclusion. Such rights would not in any event prevent a state from taking steps to prevent sham marriages, if it could show that the marriage would indeed be a sham [35].
Tadalafil is the generic name for a drug which is sold under the brand name CIALIS for the treatment of, among other things, erectile dysfunction (ED). Tadalafil is a competitor (second in class) to sildenafil, which was and is sold under the brand name, VIAGRA. The patent which is the subject of this appeal is EP(UK) 1,173,181 (the 181 patent). It is owned by ICOS and exclusively licensed to Eli Lilly (collectively Lilly). It was filed on 26 April 2000 and granted on 15 October 2003. The 181 patent relates to the use of tadalafil in a dosage form for the treatment of ED. This case is concerned with section 3 of the Patents Act 1977 (1977 Act): Section 2(2) of the 1977 Act provides: An invention shall be taken to involve an inventive step if it is not obvious to a person skilled in the art, having regard to any matter which forms part of the state of the art by virtue only of section 2(2) above (and disregarding section 2(3) above). The state of the art in the case of an invention shall be taken to comprise all matter (whether a product, a process, information about either, or anything else) which has at any time before the priority date of that invention been made available to the public (whether in the United Kingdom or elsewhere) by written or oral description, by use or in any other way. These statutory provisions mandate the court to assess whether an invention is obvious by having regard to the state of the art at the priority date of the invention. If the invention is not obvious to the skilled person at that date, section 3 deems the invention to involve an inventive step. Lilly asserts that the essence of the invention is the discovery that tadalafil is effective in treating ED at a low dose and with minimal side effects. This discovery has allowed the drug to be taken daily (for chronic use) rather than on demand, avoiding the need to anticipate when sexual activity might occur. This is, Lilly claims, a significant technical advantage as sildenafil is approved for on demand use only. The respondents raised proceedings to revoke the 181 patent. Lilly defended the claim and counterclaimed that the respondents were threatening to infringe its patent. The High Court held that a 5mg daily dose of tadalafil was not obvious as a treatment for ED and therefore concluded that the 181 patent involves an inventive step. The Court of Appeal allowed the appeal on the ground that the 181 patent lacked inventive step. Lilly appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Hodge gives the sole judgment with which the other Justices agree. Since the enactment of the 1623 Statute of Monopolies, the purpose of a grant of a patent has been to encourage innovation. The patent bargain is this: the inventor obtains a monopoly in return for disclosing the invention and dedicating it to the public for use after the monopoly has expired [53]. This overarching principle has survived the amendment of UK patent law after accession to the European Patent Convention [54]. In addressing the statutory question of obviousness in section 3 of the 1977 Act it is common for English courts to adopt the so called Windsurfing/Pozzoli structure [60]. An alternative approach which the EPO often adopts is the so called problem and solution approach [61]. While both approaches focus on the inventive concept put forward in the claims, neither approach should be applied in a mechanistic way [62]. The question of obviousness must be considered on the facts of each case [63]. Factors which are relevant considerations in the present case include the following [64]. First, it is relevant to consider whether at the priority date something was obvious to try, in other words whether it was obvious to undertake a specific piece of research which had a reasonable or fair prospect of success [65]. Secondly, it follows that the routine nature of the research and any established practice of following such research through to a particular point may be a relevant consideration [66]. Thirdly, the burden and cost of the research programme is relevant [67]. Fourthly, the necessity for and the nature of the value judgments which the skilled team would have in the course of a testing programme are relevant considerations [68]. Fifthly, the existence of alternative or multiple paths of research will often be an indicator that the invention contained in the claim or claims was not obvious [69]. Sixthly, the motive of the skilled person is a relevant consideration. The notional skilled person is not assumed to undertake technical trials for the sake of doing so but rather because he or she has some end in mind [70]. Seventhly, the fact that the results of research which the inventor actually carried out are unexpected or surprising is a relevant consideration as it may point to an inventive step [71]. Eighthly, the courts have repeatedly emphasised that one must not use hindsight, which includes knowledge of the invention, in addressing the statutory question of obviousness [72]. Ninthly, it is necessary to consider whether a feature of a claimed invention is an added benefit in a context in which the claimed innovation is obvious for another purpose [73]. A tenth consideration is the nature of the invention. In this case, the Court is concerned with a dosage patent with a Swiss form claim and an EPC 2000 claim. The possibility that a dosage patent with such claims may be valid has been recognized both by the EPO and in the United Kingdom courts [74]. In the present dispute, the Court considers that the balance or symmetry in patent law and the pre established or at least readily foreseeable target of the skilled teams tests hold the key to its resolution. The prior art discloses an invention that is the use of tadalafil in the treatment of ED in a manner which enables the skilled person to perform it. The task which the notional skilled team would undertake was that of implementing patent EP 0 839 040 (the Daugan patent), which was the nearest prior article The Daugan patent had disclosed that doses of tadalafil for the treatment of ED will generally be in the range of 0.5mg to 800mg daily for the average adult patient. The target of the skilled team would be to ascertain the appropriate dose, which would usually be the lowest effective dose. The skilled team would know of that target from the outset of its research. The pre clinical and clinical tests involved familiar and routine procedures and normally progressed to the discovery of the dose response relationship in Phase IIb [105]. In this case the trial judges findings of what would have been the sequence of the tests, which did not depend upon hindsight, included the finding, which the evidence clearly justified, that the team, having found a therapeutic plateau, would be very likely to test lower doses and so come upon the dosage regime which is the subject matter of the patent [105]. The Court considers that the Court of Appeal was entitled to treat the judges failure to appreciate the logical consequences of the finding that it was very likely that the skilled team would continue the testing as an error of principle which allowed an appellate court to carry out its own evaluation [82]. As such, the Court is satisfied that the Court of Appeal was entitled to interfere with the trial judges assessment of obviousness and to hold that the 181 patent was invalid for lacking an inventive step [105].
The Appellant and Respondent are former husband and wife. They divorced in 2002 after a marriage of approximately fifteen years, and the financial issues in the divorce were resolved by way of a consent order. Under the terms of that order the wife received 230,000 in settlement of her capital claims against the husband, and it was also agreed that the husband would make periodical payments to her at an annual rate of 13,200. It was reasonably anticipated by the husband that the wife would use the 230,000 to purchase a suitable home for herself and their son without a mortgage, as the wife had been suffering from ill health which made it difficult for her to work. In the event, however, the wife did manage to take out a mortgage, and she duly purchased a more expensive home for 345,000. Between 2002 and 2009 the wife sold and purchased a series of different properties, and with each purchase the amount which she borrowed increased. In addition, she did not necessarily reinvest all of the sale proceeds from one property into the next and seemingly spent the balance, with the result that the amount of capital she had decreased over time. Eventually, in 2009 the wife sold her final property and began to rent accommodation. By April 2015, when the first instance judge heard the case, the wife had no capital, and she had debts of around 42,000. The hearing before the judge was to determine two cross applications made under s.31(1) of the Matrimonial Causes Act 1973. The husband had applied for the discharge or downwards variation of the order for periodical payments, whereas the wife had applied for the order for periodical payments to be varied upwards. In determining the applications the judge noted that there was a shortfall of 4,092 per annum between the wifes current needs and, when coupled with her own earnings, the existing level of the periodical payments. However, he also held that, although the wifes actions had not been profligate, she had not managed her finances wisely and her current financial needs, in particular her need to pay rent, had been increased by the choices which she had made. Consequently, the judge considered that it would be unfair to the husband if he had to make a full contribution to the wifes rental costs. The judge therefore declined to vary the order for periodical payments either upwards or downwards. This meant that the husband would continue to contribute to around 60% of the wifes rental costs, and the wife would have to adjust her expenditure to accommodate the shortfall. The wife appealed against this decision to the Court of Appeal, and was successful. The Court of Appeal considered that the judge had not given sufficient reasons why all of the wifes basic needs should not be met by the periodical payments from the husband, and increased the level of periodical payments to cover her shortfall, i.e. to 17,292. The husband now appeals against this decision to the Supreme Court. The Supreme Court unanimously allows the appeal, concluding that the judge was entitled to decline to vary the order for periodical payments so as to require the husband to pay all of the wifes rental costs. Lord Wilson gives the judgment with which Lady Hale, Lord Carnwath, Lord Hughes and Lord Hodge agree. The husband was granted permission to appeal to the Supreme Court only on a single ground whether, in light of the fact that provision had already been made for the wifes housing needs in the capital settlement, the Court of Appeal was entitled to interfere with the judges decision not to increase the periodical payments so as to cover all of the wifes current rental costs [32]. The Court of Appeal had erred in saying that the judge had given no reason for declining to increase the order for periodical payments the judge had given a clear reason, namely that the wifes unwise decisions in relation to her capital had increased her basic needs by requiring her to pay rent, and that it was consequently unfair to expect the husband to meet these increased needs in full [33]. The Court of Appeal should have considered the impact of the original capital payment on the wifes current need to pay rent, and this involved a consideration of three earlier Court of Appeal authorities: Pearce v Pearce [2003] EWCA Civ 1054, North v North [2007] EWCA Civ 760, and Yates v Yates [2012] EWCA Civ 532 [34 38]. These cases were correctly decided and in light of this the judge was entitled, although not obliged, to decline to require the husband to fund payment of the rent in full. This respects the wide discretion conferred upon the court under section 31(1) and (7) of the Matrimonial Causes Act 1973 in determining an application for variation of an order for periodical payments. Moreover, a court would need to give very good reasons for requiring a spouse to fund payment of the other spouses rent in the circumstances of this case. A spouse may well be obliged to make provision for the other spouse, but an obligation to duplicate that provision in situations such as this is improbable [40].
Ms Janah is a Moroccan national who was recruited in Libya to work as a domestic worker for the Libyan government at its London embassy. Ms Benkharbouche is a Moroccan national who was recruited in Iraq to work for Sudan at its London embassy. Both were dismissed from their employment and then issued claims in the Employment Tribunal against Libya and Sudan respectively. Some of their claims were based on EU law. Others were based on breach of contract or on purely domestic statutes of the United Kingdom. In both actions the Employment Tribunal dismissed the claims on the basis that Libya and Sudan were entitled to state immunity under the State Immunity Act 1978 (1978 Act). The Employment Appeal Tribunal (EAT) heard Ms Janahs and Ms Benkharbouches appeals together. The EAT allowed the appeals and held that those sections were incompatible with article 47 of the EU Charter of Fundamental Rights and Freedoms (EU Charter) which reflects the right in EU law to a remedy before a tribunal. The EAT consequently disapplied sections 4(2)(b) and 16(1)(a) of the 1978 Act insofar as those sections barred the claims which were based on EU law. The Court of Appeal affirmed the judgment of the EAT and declared those sections of the 1978 Act to be incompatible with the right to access a court, under article 6 of the European Convention on Human Rights (ECHR). The Secretary of State appeals in both cases. The Supreme Court unanimously dismisses the appeal. Lord Sumption gives the judgment, with which Lord Neuberger, Lady Hale, Lord Clarke and Lord Wilson agree. The 1978 Act renders a foreign state immune from the jurisdiction of a UK court in a claim based on the foreign states employment of the claimant, where the claimant either: (i) at the time of the contract, was neither a UK national nor UK resident; or (ii) works for the foreign states diplomatic mission. Section 4(2)(b) confers immunity in the first category; section 16(1)(a) confers immunity in the second [1, 11]. Article 6 of the ECHR confers a right of access to a court to determine disputes, although that right is not absolute [14]. The Claimants argued that the relevant provisions of the 1978 Act were incompatible with EU law and with Article 6 of the ECHR, because they prevented access to a court in circumstances where this result was not required by international law. The Secretary of State argued (i) that a courts recognition of state immunity can never amount to an infringement of article 6, because it only reflects the courts lack of jurisdiction over a foreign state, but (ii) that in any event the relevant provisions of the Act were consistent with international law or at least with a tenable view of international law. [29 30, 34 35]. The test was whether the relevant provisions of the Act were consistent with international law, not whether there was a tenable view to that effect. These provisions were not consistent with international law. A court may identify a rule of customary international law only if enough states follow a consistent practice, on the footing that it is a legal obligation [31]. The Secretary of State argued that although states now recognise a more restrictive doctrine of state immunity, the immunity is still absolute unless there is sufficient international consensus to show that Libya and Sudan fall into any established exception to that absolute immunity [33]. This Court rejects those arguments, which mischaracterise the historical development of the restrictive doctrine of immunity. Specifically: (i) while there is a long standing consensus of states in favour of immunity there has probably never been sufficient international consensus for an absolute rule of state immunity in customary international law; (ii) the only consensus that there has ever been about the scope of state immunity is the relatively recent consensus in favour of the restrictive doctrine; (iii) that restrictive doctrine emerged after a re examination of the true basis of the doctrine, rather than by creating exceptions to any general rule of absolute immunity [40 52]. In customary international law, a foreign state is immune where a claim is based on sovereign acts. Whether a foreign states employment of a claimant constitutes a sovereign act depends on the nature of that employer employee relationship. That will, in turn, depend primarily on the functions which the employee is employed to perform. The employment of purely domestic staff in a diplomatic mission is a private act, rather than an inherently sovereign act. That approach is supported by the reasoning in case law from the United States, France, and the European Court of Human Rights [53 56]. Under section 4(2)(b) of the Act, whether a foreign state is immune depends entirely on the nationality and residence of the claimant at the date of the employment contract. That section draws no distinction between acts of a private nature and acts of a sovereign nature. That approach to state immunity is followed by some states but lacks any basis in customary international law [64 66]. A persons nationality and residence at the date of the employment contract are not proper grounds for denying a person access to the courts in respect of their employment in this country [67]. Section 16(1)(a) extends state immunity to the employment of all members of a diplomatic mission. The Court rejects the Secretary of States argument that a state is entitled in international law to absolute immunity in respect of the employment of embassy staff. Although article 7 of the Vienna Convention on Diplomatic Relations 1961 indicates that a court may not order a foreign state to employ a specific person in its embassy, this issue does not arise where the claimant only seeks damages (rather than reinstatement in his or her previous position) [68 69]. Nor is there any corresponding rule of customary international law to extend absolute state immunity to the employment of embassy staff [70 72]. As a matter of customary international law, therefore, neither Sudan nor Libya are entitled to immunity in respect of these claims. Sections 4(2)(b) and 16(1)(a) of the 1978 Act, which confer immunity in English law, are consequently incompatible with article 6 of the ECHR [74 75]. In light of that, the Secretary of State accepted that those sections were also incompatible with article 47 of the EU Charter [77]. The Court also accepts Ms Janahs argument that section 16(1)(a) of the 1978 Act discriminated unjustifiably on the grounds of nationality, but in the circumstances that adds nothing [76]. EU law prevails over English law in the event of a conflict, so those sections of the 1978 Act cannot bar the claims which are based on EU law [77]. Those EU law claims are remitted to the Employment Tribunal, to be determined at trial. The other claims remain barred by the 1978 Act, notwithstanding that the Court of Appeal properly made a declaration of incompatibility with the ECHR in respect of them [78].
This appeal concerns the legality of attempts by the Lord Chancellor to introduce a residence test for civil legal aid by amending the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). Part 1 of LASPO came into force on 1 April 2013. It includes section 9, subsection (1) of which provides that civil legal services are to be available to an individual if they are legal services described in Part 1 of Schedule 1, and the Director of Legal Aid Casework has determined that the individual qualifies for the services in accordance with Part 1 of LASPO. Part 1 of Schedule 1 accordingly sets out the services for which civil legal aid is available. Subsection 9(2) permits the Lord Chancellor to (a) add to, and (b) vary or omit services in Part 1 of the Schedule. In April 2013, the Ministry of Justice (MOJ) issued a paper in which it stated that, subject to certain specific exceptions, the Government would proceed with the introduction of a residence test so that only those who are lawfully resident in the UK (or Crown Dependencies or British Overseas Territories) at the time of the application and have so resided for a continuous period of at least 12 months at any point in the past would be eligible for civil legal aid. In September 2013, the Lord Chancellor decided to proceed with the proposal and to make regulations to that effect in the form of delegated legislation (the draft order), which was put before Parliament on 31 March 2014. Before the draft order was laid before Parliament, the Public Law Project applied to the High Court for a declaration that the draft order was unlawful on the basis that it was (i) ultra vires, i.e. outside the scope of the power granted to the Lord Chancellor by LASPO to bring forward delegated legislation; and (ii) unjustifiably discriminatory in its effect. The Divisional Court held that the draft order was unlawful on both grounds. Following the decision of the Divisional Court, the Lord Chancellor withdrew the draft order before any debate in the House of Lords could take place. On appeal, the Court of Appeal allowed the Lord Chancellors appeal on both grounds, holding that the draft order was intra vires and that, while it was discriminatory in its effect, the discrimination could be justified. The Public Law Project now appeal to the Supreme Court on both grounds. Following a hearing at which the Court heard argument on the ultra vires issue and indicated that it did not need to hear argument on the discrimination issue, the Supreme Court unanimously allows the Public Law Projects appeal on the ultra vires issue. Lord Neuberger gives the only judgment, with which the other Justices agree. The Public Law Project contend that the exclusion of a specific group of people from the right to receive legal services on the ground of personal circumstances or characteristics, which have nothing to do with the nature of the issue or services involved or the individuals need, or ability to pay, for the services, is not within the scope of the power accorded to the Lord Chancellor by section 9(2)(b) of LASPO, and that nothing in section 41 undermines that contention. That argument is accepted by the Court [30]. In declaring subordinate legislation to be outside the scope of the statutory power pursuant to which it was purportedly made, the Court is upholding the supremacy of Parliament over the Executive [23]. Section 9(2)(b) provides a power to vary or omit services, but the relevant parts of the draft order do not seek to vary or omit services; rather, they seek to reduce the class of individuals who are entitled to receive those services by reference to a personal characteristics or circumstance unrelated to the services (i.e. length of residency) [30]. This interpretation of the wording of section 9(2) is supported by the wider statutory context. Each of the services identified in Part 1 and Part 2 of Schedule 1 is linked to a specific type of legal issue or claim, and has nothing to do with the personal circumstances or characteristics in particular the geographical residence of the potential recipient of the services [31]. This conclusion is also supported by contrasting the wording of the two subsections of section 9. Subsection (1) clearly distinguishes between the question of whether the particular services qualify and whether the particular individual qualifies [33]. Section 9(2) is concerned with the services which qualify, and it is section 11 which appears to be concerned with identifying the characteristics or circumstances of individuals who are to qualify for civil legal aid. The criteria that section 11 sets out all relate to the issue involved, the services concerned, or the need of the individual for financial assistance, in contrast to the draft order. This indicates that the draft order is attempting to do something which the legislature never had in mind when enacting section 9 [34]. The Court of Appeal concluded that section 41 could be invoked to defeat the contention that the Lord Chancellor could not make the draft order under section 9. While it is true that section 41(2)(b) permits any order made under section 9(2)(b) to make provision by reference to services provided for a particular class of individual, this cannot extend the power under section 9(2)(b) so as to exclude a whole class of individuals from the scope of Part 1 of LASPO by reference to their residence [36]. Section 41 is clearly intended to grant ancillary powers to those primarily granted under section 9 [36]. Accordingly, the appeal should be allowed on the first, ultra vires, issue, and the Court does not have to deal with the discrimination issue [39].
In order to be as of right, use must not be by force, nor stealth, nor by permission of the landowner [20, 67, 87 107, 115]. The law in this area was also concerned with how the matter would have appeared to the reasonable landowner [36]. There was great difficulty in seeing how a reasonable landowner would have concluded that the residents were not asserting a right to take recreation on the disputed land simply because they showed civility towards members of the golf club [36]. The inspector misdirected himself as to the significance of perfectly natural behaviour by the residents [38, 96]. The appeal would be allowed and the council should register the land [49, 78, 97 108, 116]. The Respondent had argued that the rights of the residents after registration of a village green afforded them unqualified use of the land whatever the landowner wished to do with it. There would be a mismatch between what the residents would have done to gain the rights and what they would be in a position to do after the green had been registered. However, Lords Walker and Rodger considered that there was little danger in normal circumstances of registration leading to a sudden diversification or intensification of use by residents [47, 84]; the parties could co exist. Lords Hope and Kerr considered that there was a broad equivalence between the use relied on to establish the right and what the land might be used for after registration, although there may be some asymmetry as to the manner of its use pre and post registration [72, 115]. Lord Brown considered that the locals could increase their use of the land but only in so far as it would not be incompatible with the owner continuing with his previous use [101]. Lord Hope suggested that the forthcoming review of village greens by the Government should look at the consequences of registration as revealed by the developing case law as well as how the registration system itself is working [56].
The Children and Young People (Scotland) Act 2014 (the 2014 Act) makes provision for a named person service (the NPS) in relation to children and young people (C&YP) in Scotland. The NPS establishes the new professional role of the named person, and envisages that all C&YP in Scotland will be assigned a named person. The NPS aims to achieve two policy aims: first, a shift away from intervention by public authorities after a risk to welfare has been identified, to an emphasis on early intervention to promote wellbeing. Secondly, moving from a legal structure under which the duties of statutory bodies to cooperate were linked to the performance of their individual functions, to one which ensures that they work collaboratively and share information in order to support wellbeing. The 2014 Act is supplemented by revised statutory guidance (the Guidance), which is still in draft. Part 4 of the 2014 Act (Part 4) provides that named persons will exercise certain functions in relation to C&YP. These include: (a) advising, informing or supporting them or their parents; (b) helping them or their parents access a service or support; and (c) discussing or raising a matter about them with a service provider (e.g. health boards and local authorities) or relevant authority (e.g. the NHS and Scottish Police Authority). The authority responsible for the provision of the NPS (the NPS Provider) changes depending on the age and circumstances of the child or young person. Part 4 also sets out powers and duties relating to information sharing, including (in s.23) conditions for when information must be shared following a change in NPS Provider, and (in s.26) conditions for when information must be shared between service providers or relevant authorities, and the NPS Provider. Section 26(8) includes an additional power of disclosure where the NPS Provider holds information and it considers that providing it to a service provider or relevant authority is necessary or expedient (s.26(9)) for the purpose of the exercise of any of the named person functions. The powers and duties of disclosure under ss.23 and 26 cannot, however, be exercised where the information would be provided in breach of a prohibition or restriction under an enactment. The appellants are four registered charities with an interest in family matters, and three individual parents. They challenged Part 4 by way of judicial review on the basis that it is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998 (the Scotland Act) because: (a) it relates to matters which are reserved under the Scotland Act to the UK Parliament (the Reserved Matters Challenge); (b) it is incompatible with rights under the European Convention on Human Rights (the ECHR Challenge); and/or (c) it is incompatible with EU law (the EU Law Challenge). The appellants challenges were dismissed in both the Outer House and the Inner House of the Court of Session. They now appeal to the Supreme Court. The Supreme Court unanimously allows the appeal on the basis of the ECHR Challenge and the EU Law Challenge (to the extent it mirrors the ECHR Challenge). The Court invites written submissions as to the terms of its order under s.102 of the Scotland Act in order to give the Scottish Parliament and Scottish Ministers an opportunity to address the matters raised in the judgment. In the meantime, since the defective provisions of Part 4 of the 2014 Act are not within the legislative competence of the Scottish Parliament, they cannot be brought into force. Lady Hale, Lord Reed and Lord Hodge (with whom Lord Wilson and Lord Hughes agree) give the joint leading judgment. The Reserved Matters Challenge Part 4 is challenged on the ground that the data sharing provisions relate to the reserved matter of the Data Protection Act 1998 (the DPA) and Council Directive 95/46/EC (the Directive). Whether a provision relates to a reserved matter under the Scotland Act is determined by reference to its purpose [27 33]. The subject matter of the Directive (and therefore the DPA, which implemented the Directive in the UK) is the standards of protection which must be afforded to data and the methods by which those standards are secured [34 39]. The DPA imposes obligations on data controllers in relation to data processing, and creates rights for data subjects and a system for the regulation of data controllers. Section 35 of the DPA allows scope for derogation from certain of its requirements by legislation, which may include devolved legislation [44]. The bodies described in Part 4 as service providers and relevant authorities are currently subject to legal duties in relation to the disclosure of information as data controllers under the DPA [45 47]. The result of these duties is that information about C&YP can currently be disclosed, without their consent, if the disclosure is necessary in order to protect their vital interests, or if the disclosure is necessary for the exercise of a statutory function. These thresholds are higher than those under Part 4 which (respectively) refer to disclosure being likely to benefit wellbeing, and being likely to be relevant to the exercise of statutory functions. Data controllers are also obliged to comply with other data protection principles under the DPA [48]. Further protections are included in relation to sensitive data (e.g. health and sexual life) under Schedule 3 to the DPA [49 50]. The effect of Part 4 on the requirements of the DPA is extremely complex and was not fully discussed at the hearing. Sections 23 and 26 of Part 4 do not permit disclosure of information in breach of a prohibition or restriction on its disclosure arising by virtue of an enactment. At first sight, that means that disclosure under Part 4 is subject to compliance with the requirements of the DPA, since the DPA is an enactment. However, under sections 27 and 35 of the DPA, personal data are exempt from some of the requirements of the DPA where the disclosure is required by or under any enactment. An Act of the Scottish Parliament is an enactment for this purpose. The result is a logical puzzle [51 54]. It is, however, clear that the powers and duties of disclosure under Part 4 cannot be taken at face value; in several respects, they are significantly curtailed by the DPA and the Directive [55 58]. However, although Part 4 contains powers and duties the objective of which is to ensure that information is shared, that objective is not distinct from the overall purpose of promoting the wellbeing of C&YP [64]. Part 4 also does not detract from the regime established by the DPA and the Directive [65]. Part 4 does not therefore relate to the subject matter of the DPA and the Directive for the purposes of the Scotland Act, and the Reserved Matters Challenge cannot succeed [66]. The ECHR Challenge The appellants claim that the NPS breaches Article 8 ECHR rights. This is both (a) on the broad basis that compulsory appointment of a named person without parental consent amounts to a breach of the parents Article 8 rights, and (b) on the narrow basis that the information sharing provisions under Part 4 amount to breaches of parents and C&YPs Article 8 rights [67 68]. The Community Law Advice Network, as intervener, also challenged the information sharing provisions on the basis that they impose too low a threshold for the disclosure of confidential information and amount to an infringement of the Article 8 rights of C&YP. This meant that there was more focus on Article 8 in the appeal before this Court than there had been before the Court of Session below [69]. In the context of the 2014 Act, the interests protected by Article 8 include both family life [71 74] and privacy [75 77], and the operation of the information sharing provisions of Part 4 will result in interferences with those interests [78]. In accordance with the law In order for that interference to be in accordance with the law (for the purposes of Article 8(2)), the measures must not only have some basis in domestic law but also be accessible to the person(s) concerned and foreseeable as to their effects. This means rules must be formulated with sufficient precision to give legal protection against arbitrariness [79 81]. In assessing the legality of Part 4, regard must be had to the Guidance [82]. As is clear from the Courts findings on the Reserved Matters Challenge, there are difficulties in accessing the relevant rules for information sharing. An information holder would need to read together and cross refer between Part 4, the DPA and the Directive in order to work out the priority of their provisions. Of even greater concern is the lack of safeguards which would enable the proportionality of any interference with Article 8 to be adequately examined [83 84]. For example, information, including confidential information concerning a child or young persons state of health (e.g. as to contraception, pregnancy or sexually transmitted disease), could be disclosed to a wide range of authorities without either the child or young person or their parents being aware of the interference with their Article 8 rights, and in circumstances in which there was no objectively compelling reason for the failure to inform them. Accordingly, as currently drafted, the information sharing sections of Part 4 and the Guidance do not satisfy the requirement of being in accordance with the law [85]. Proportionality In assessing whether the operation of Part 4 would give rise to interferences with Article 8 which are disproportionate having regard to the legitimate aim pursued, it is necessary to distinguish between the 2014 Act and its operation in individual cases [86 88]. Focusing on the proportionality of the legislation itself, Part 4 undoubtedly pursues legitimate policy aims and is clearly rationally connected to those aims [91 92]. Allowing the legislature the appropriate margin of discretion, Part 4 is also a reasonable measure for the legislature to impose in order to achieve those legitimate aims. It is for this reason that the appellants broad challenge cannot succeed. If a named person could be appointed only with parental consent, the scope for early intervention would be diminished [93]. However, the operation of Part 4 may well give rise to disproportionate interferences in particular cases: First, there is a risk that parents will be given the impression that they must accept advice in relation to the services offered by a named person in the exercise of the named person functions, and that their failure to cooperate would be taken as evidence of risk of harm. Care should therefore be taken to emphasise the voluntary nature of the advice, information, support and help offered by the named person [94 95]. Secondly, the information holder will have to address difficult questions of proportionality in relation to the disclosure of confidential information with the help of only the Guidance, which is limited, and the Part 4 criteria, which set too low a threshold for overriding duties of confidentiality [96 100]. There is therefore a need for clear guidance to information holders as to how to assess proportionality when considering whether information should be shared [101]. The EU Law Challenge In relation to the EU Law Challenge, there is no incompatibility additional to that identified in relation to the ECHR Challenge [102 105].
On 6 December 2010 the Crown Prosecution Service applied to the Crown Court for restraint orders under section 41 of the Proceeds of Crime Act 2002 (POCA) against two individuals, and restraint and receivership orders (under section 48 POCA) against Eastenders Group. Eastenders Group, of which the individuals were the joint owners, was a holding company for a number of trading cash and carry retail outlets. These orders were sought because the CPS was conducting a covert investigation into a suspected fraud on HMRC, allegedly carried out through Eastenders Group companies. A POCA restraint order prevents named persons from dealing with their own assets until the order is discharged. A receivership order appoints a receiver to manage the assets of the company subject to the restraint order. The CPS sought to have Mr Barnes, a partner in a well known firm of accountants, appointed as Eastenders Groups receiver under a letter of agreement between the CPS and Mr Barnes. The letter of agreement suggested that Mr Barnes would be remunerated from Eastenders Group property. The restraint and receivership orders were made by the Crown Court judge after a short hearing. Mr Barnes was appointed and began to manage the Group. On 23 December 2010, the Eastenders Group sought to have its orders discharged, but the judge refused. The Group appealed to the Court of Appeal, heard on 25 January 2011. On 26 January 2011 the Court of Appeal quashed the orders over the Group. They held that the orders should never have been made: there was no good arguable case that the Group assets should be regarded as the individuals assets, and 95% of the business of the Group was demonstrably legitimate. However, during the period of the receivership, the receiver had incurred costs and expenses of 772,547. This included significant sums for site security, legal expenses and the receivers fees. The receiver applied to the Crown Court for permission to draw his remuneration and expenses from Eastenders Group assets. The application was refused by Underhill J, who held that requiring the companies to pay would breach the Groups right to peaceful enjoyment of its possessions under Article 1 of Protocol 1 to the European Convention on Human Rights (A1P1), and so would be unlawful under section 6 Human Rights Act 1998 (section 3 HRA 1998). He went on to hold that it was possible to interpret POCA (by section 3 HRA 1998) to give the court the power to require the CPS to pay the receivers remuneration and expenses. The CPS appealed to the Court of Appeal. The majority of the Court of Appeal upheld Underhill Js decision that the Groups rights under A1P1 would be infringed by an order entitling the receiver to draw his remuneration from its assets on the basis that the order was insufficiently foreseeable. Laws LJ, dissenting on that point, would have allowed the receiver to draw his remuneration from Eastenders assets. The Court was unanimous that there was no basis under POCA or the HRA 1998 for the CPS to be required to pay the receivers remuneration and expenses. The receiver appealed to the Supreme Court. The Supreme Court unanimously allows the receivers appeal (only) against the Court of Appeals refusal to have the CPS to pay the receivers remuneration and expenses. Lord Toulson gives the leading judgment, with a short concurrence by Lord Hughes dealing with the practical application of the courts decision. It is a general principle of the law of receivership that a court appointed receiver is entitled to remuneration from the assets of the administered company. That law is clear and foreseeable. However, where the administered company is not itself a defendant, nor at the time of the order was there any reasonable cause to regard its assets as the defendants, it would be a disproportionate interference with the companys A1P1 rights for the receivers remuneration to be drawn from the companys assets. However, to leave the receiver without a remedy would be to substitute one injustice for another and violate the receivers A1P1 rights. In this case the receiver and the CPS acted on a common assumption, fundamental to the agreement, that the receiver would be able to claim his remuneration and expenses from the Eastenders Group. That assumption failed: the receiver accordingly has a valid right to restitution from the CPS. It is an established principle of the common law of receivership that a court appointed receiver may draw his remuneration and expenses to the assets placed by the court in his/her control. The receiver has a lien over those assets for that purpose [44]. That common law, together with the provisions of POCA and the Criminal Procedure Rules, provide amply clear and foreseeable authority for the making of such order, and Laws LJ was correct so to hold [83]. The critical question in this case is not foreseeability, but proportionality. Would it be disproportionate to order that the Receivers expenses be drawn from the companies? [87]. The taking of property without compensation is, in general, a disproportionate interference with A1P1 [88]. In this case the Group were neither defendants nor (as the Court of Appeal found) was there any reasonable cause for regarding the Group assets as those of the defendants at the time when it was made [89], [125 130]. Divesting the Group of its assets in that situation is disproportionate [94]. It is as if the assets of an innocent defendant were sought to be used to cover the costs of detaining and prosecuting him or her [92]. The Receivers application to recover his expenses from Eastenders Group therefore fails [96]. However, that conclusion would leave the court in an invidious position, since to leave the Receiver without recompense would violate his A1P1 rights [96]. The Receiver had, however, entered on his receivership pursuant to a letter of agreement with the CPS [98]. It was the mutual expectation of both the Receiver and the CPS that the Receiver would have a legally enforceable lien over the receivership property [99]. Unjust enrichment may cover a variety of situations. Failure of services at the request of another is capable of being regarded as enrichment, and it would be unjust if the receiver were not paid for the services which he provided [100 117]. Hence the receiver has a claim in unjust enrichment against the CPS [117]. The restraint and receivership orders were made in this case on an application at short notice. Applications by the CPS for such orders should be made as early as possible, with proper time estimates and reading lists, enabling the court to consider the necessary arrangements [118 119]. The fact that such applications are made ex parte places a special burden of candour on the CPS and considerable responsibility upon the court [120]. Failure to discharge the duty of candour could well be considered serious misconduct [121]. The court should always consider such applications carefully: making such orders should never be a rubber stamping exercise. In certain cases, it could be appropriate to attach a Piggott condition to a receivership order providing that if property was shown not to be realisable property, the receivers costs should fall on the CPS [124].
Section 6(1) of the Prosecution of Offences Act 1985 (the 1985 Act) recognises the right of a private person to institute and conduct a private prosecution where the duty of the Director of Public Prosecutions (the DPP) to take over them does not apply. But the right is subject to s.6(2) of the 1985 Act which confers upon the DPP a power, even when not under a duty to take over the proceedings, nevertheless to do so at any stage. In determining whether to do so, it is his policy to apply certain criteria, including in particular a criterion relating to the strength of the evidence in support of the prosecution. Prior to 23 June 2009, the DPP asked himself whether there was clearly no case for the defendant to answer. If such was his conclusion, he took over the prosecution and discontinued it; otherwise, subject to the application of further criteria, he declined to take it over. However, on 23 June 2009 he changed his policy in relation to the evidential criterion. In that regard it became his policy to take over and discontinue a private prosecution unless the prosecution was more likely than not to result in a conviction (the reasonable prospect test). In August 2010 the Appellant instituted two private prosecutions. On 16 November 2010 the DPP, acting by the Crown Prosecution Service (the CPS), took over and discontinued the prosecutions. The Appellant applied for judicial review of the decision to do so. His case was that the reasonable prospect test, adopted by the DPP on 23 June 2009, is unlawful. It is common ground that the application of the DPPs former evidential criterion would not have led to him to take over and discontinue the prosecutions. The Divisional Court of the Queens Bench Division of the High Court dismissed the application and the Appellant now appeals. The Supreme Court, by a majority of 3:2 (Lord Mance and Lady Hale dissenting), dismisses the appeal. Lord Wilson gives the lead judgment for the majority. The critical question for Lord Wilson is not the constitutional importance of the right to private prosecutions, which he recognises [27 29]. It is whether, in applying the reasonable prospect test, the DPP frustrates the policy and objects which underpin s.6 of the 1985 Act. [30, 49] In reaffirming, in qualified terms, the right to maintain a private prosecution in s.6, Parliament could not be taken to have intended that the DPP should decline to exercise his discretion so as to intervene and discontinue a prosecution even if it lacks a reasonable prospect of success. [39] The new tests focus on the likelihood of conviction was a more relevant question than the previous no case to answer test. [34] Lord Wilson gives illustrations of private prosecutions which survive the current test [33], and four further reasons to support his conclusions [36]: (1) Parliament did not expressly confine the discretion in s.6(2). (2) The main object behind the 1985 Act, reflected in the report of the Royal Commission in 1981, was to establish a nationwide CPS and to achieve consistent standards in instituting and conducting prosecutions. The reasonable prospect standard was also approved in the Royal Commission report for all prosecutions. [58] (3) A prosecution lacking a reasonable prospect of success draws inappropriately on court resources. (4) A defendant would have a legitimate grievance about being subjected to private prosecution when, by the application of lawful criteria as to the strength of the evidence against him, there would be no public prosecution. Furthermore, as acknowledged in general terms in paragraph 2.3 of the 2009 Code for Crown Prosecutors, the DPP acts unlawfully if he adopts too rigid an approach in applying his policy towards interventions with a view to discontinuance, which would be amenable to judicial review. [37] Lord Neuberger adds that many of the factors justifying the reasonable prospect test in public prosecutions unfairness to a defendant, costs, use of court time and confidence in the justice system apply to private prosecutions. [57] The right to initiate a private prosecution remains virtually unlimited and those meeting the evidential and public interest tests are allowed to continue save where there is a particular need for the DPP to take over. [60 1] Whilst mindful of cutting down individuals right of access to the courts, the right to conduct a private prosecution has always been subject to being curtailed by the Attorney General through issuing a nolle prosequi [64]. Lord Kerr observes that the right has been modified by successive enactments over time, including the establishment of the office of the DPP itself. [80] There is nothing to suggest that the policy prior to 2009 was immutable or inviolable. [84] The new policy might restrict private prosecutions, but it is not unacceptable as a matter of law. [71] Lord Mance however emphasises the strong historical and constitutional basis for private prosecutions [88 90, 94, 99, 100, 105 6]. He approves the words of Laws LJ in R v Director of Public Prosecutions, Ex Parte Duckenfield [2000] 1 WLR 55, at 68 9, that a reasonable prospect test would emasculate the right afforded by s.6(1). [113] The right of access to justice granted in s.6(1) was not intended to be made ineffective or subverted by s.6(2), which can only be removed by clear words. [107] The unspecified nature of the words in s.6(2) were aimed at public policy not new evidential grounds [114]. The fundamental right in s.6(1) was not undermined by the potential harm resulting from an unsuccessful prosecution. It provides an important safeguard when an individual prosecutor might have misjudged the evidence. [115] There is no justification for such a radical change of policy. [117 118] Lady Hale expresses doubts over the reasonable prospect test as there could be, as in this case, two reasonable but different views on whether a reasonable court would convict. [126 131] This leaves a victim dependent on which prosecutor handles the case, exacerbated by the fact the exercise is done on the papers without examination of witnesses. [131] The possibility of judicial review is not a sufficient safeguard and the test could raise issues under the European Convention of Human Rights. [132 3]
On 20 December 2010, the Financial Services Authority (FSA), acting in pursuance of its public duties under sections 3 to 6 of the Financial Services and Markets Act 2000 (FSMA), made a without notice application for a freezing injunction against Sinaloa Gold and PH Capital Invest under section 380(3) of FSMA. The FSA alleged that both companies were involved in promoting the sale of shares in Sinaloa without proper authorisation and an approved prospectus and that PH Capital Invest had breached FSMA in various other respects. Schedule B to the injunction stated that the FSA gave no cross undertaking in damages. However, under Schedule B, the FSA undertook to cover both costs and losses incurred by third parties as a result of the injunction. The undertaking in respect of third party losses was inadvertent and the FSA applied to have it removed. Barclays with whom Sinaloa Gold plc had six bank accounts intervened to oppose this application. The application to have the undertaking removed was refused in the High Court. However, this decision was reversed in the Court of Appeal. The effect of the Court of Appeals decision was to preserve the undertaking in respect of third party costs but eliminate the undertaking in respect of third party losses. Barclays appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. There is no general rule that an authority such as the FSA, acting pursuant to a public law duty, should be required to give a cross undertaking in respect of losses incurred by third parties. Further, there are no particular circumstances which mean that the FSA should be required to give such a cross undertaking on the facts of this case. The judgment of the Court is given by Lord Mance. Whilst there is no continuing justification for the former blanket practice whereby the Crown was not required to give a cross undertaking in any circumstances, a general distinction still exists between private claims and law enforcement actions [33]. In a private claim, a claimant seeking an injunction will ordinarily be expected to give a cross undertaking in damages to the defendant(s) and to third parties. This can be justified on the basis that such a claimant should be prepared to back its own interest with its own assets against the event that it obtains the injunction unjustifiably with the result that harm is caused to the interest of another [30]. However, different considerations arise in relation to law enforcement actions, where a public authority is seeking to enforce the law in the interests of the public generally, often in pursuance of a public duty to do so, and enjoys only the resources which have been assigned to it for its functions [31]. In these circumstances public authorities cannot generally be expected to back their legal actions with the public funds with which they are entrusted for the purpose of undertaking their functions [33]. Such a requirement may inhibit public officials from fulfilling their public duties for fear of exposing public funds to claims for compensation. The position regarding the giving of any cross undertaking cannot differ according to whether it is intended to protect a defendant or a third party [14, 34]. In both instances the cross undertaking covers the loss caused by the grant of an injunction in circumstances where the person incurring the loss is essentially innocent [34]. A pragmatic distinction can be drawn between an undertaking in respect of costs and an undertaking in damages. Public authorities should be able to enforce the law without being inhibited by the fear of cross claims and the exposure of their resources, and this applies with particular force to any open ended undertaking in respect of third party loss. It does not apply with the same force to a more limited cross undertaking in respect of third party costs [35]. There are no special circumstances why the FSA should be required to give a cross undertaking in respect of losses suffered by third parties on the particular facts of this case. In a case such as the instant one, where the FSA takes positive action to shut down allegedly unlawful activity, it does not in the course of so doing assume any responsibility towards or liability for breach of a duty of care enforceable at the instance of third parties [37 38]. The FSA enjoys a further power to freeze the assets of a permitted person, without making any application to a court, under Part IV of the FSMA. In the exercise of its powers under Part IV the FSA is excluded from any risk of liability by virtue of paragraph 19 of Schedule 1 to FSMA. There would therefore be an apparent imbalance were the FSA required to accept potential liability in cases such as the instant one concerned with the activities of unauthorised persons [37 38].
This appeal concerns the lawfulness of the Airports National Policy Statement (the ANPS) and its accompanying environmental report. The ANPS is the national policy framework which governs the construction of a third runway at Heathrow Airport. Any future application for development consent to build this runway will be considered against the policy framework in the ANPS. The ANPS does not grant development consent in its own right. Successive governments have considered whether there is a need for increased airport capacity in the South East of England. The Secretary of State for Transport (the Secretary of State) declared that the Government accepted the case for airport expansion in 2015. He announced that the North West Runway (NWR) scheme was the preferred scheme in October 2016. The UK was separately developing its policy on environmental issues and climate change. On 22 April 2016 the UK signed the Paris Agreement under the United Nations Framework Convention on Climate Change (the Paris Agreement). The UK ratified the agreement on 17 November 2016. The agreement sets out various targets for the reduction of greenhouse gas emissions, particularly carbon dioxide, and the reduction of temperature increases resulting from global warming (the Paris Agreement Targets). Two Government ministers Andrea Leadsom MP and Amber Rudd MP made statements about the Governments approach to the Paris Agreement in March 2016. Against this background, the Secretary of State designated the ANPS as national policy on 26 June 2018. Objectors to the NWR scheme, including Friends of the Earth Ltd (FoE) and Plan B Earth, challenged the lawfulness of the Secretary of States designation on a number of grounds. The Divisional Court dismissed all of the objectors various claims in two separate judgments. The Court of Appeal upheld the main parts of these judgments on appeal but allowed some of FoE and Plan B Earths grounds. It held the Secretary of State had acted unlawfully in failing to take the Paris Agreement into account when designating the ANPS. Accordingly, the ANPS was of no legal effect. The Secretary of State does not appeal the Court of Appeals decision. However, the company which owns Heathrow Airport, Heathrow Airport Ltd (HAL), is a party to the proceedings and has been granted permission to appeal to the Supreme Court. HAL has stated that it has already invested a large sum of money in promoting the NWR scheme and wishes to make an application for development consent to carry the project through. The Supreme Court unanimously allows the appeal. Lord Hodge and Lord Sales give the main judgment (with which Lord Reed, Lady Black and Lord Leggatt agree). Government policy The Secretary of State designated the ANPS under section 5(1) of the Planning Act 2008 (the PA 2008) [12]. Section 5(7) of the PA 2008 provides that national policy frameworks such as the ANPS must give reasons for the policy adopted. Section 5(8) states that these reasons must include an explanation of how that policy takes account of existing Government policy relating to the mitigation of and adaptation to climate change [25]. The Court rejects Plan B Earths argument that the reasons in the ANPS needed to refer to the Paris Agreement Targets in order to comply with section 5(8). The March 2016 statements of Andrea Leadsom MP and Amber Rudd MP and the formal ratification of the Paris Agreement do not mean that the Governments commitment to the Paris Agreement constitutes Government policy in the sense in which that term is used in the statute [102]. The meaning of Government policy is a matter of interpretation of the statutory provision [101]. The phrase needs to be construed relatively narrowly in context to allow section 5(8) to operate sensibly. Otherwise it would create a bear trap for civil servants and ministers, who would have to consider all ministerial statements given in any context which might be characterised as policy in a broad sense [105]. The Court explains that Government policy in the context of section 5(8) refers to carefully formulated written statements of policy which have been cleared by the relevant departments on a Government wide basis [105]. The epitome of Government policy is a formal written statement of established policy. The absolute minimum standard is a statement which is clear, unambiguous, and devoid of relevant qualification [106]. The Court does not consider that the statements of Andrea Leadsom MP and Amber Rudd MP meet this minimum standard. They were not clear, did not refer to the Paris Temperature Targets at all, and did not explain how the Paris Agreement goal of net zero emissions would be incorporated into UK law [106]. The lower courts were asked to consider whether international treaties which have been formally ratified but have not been incorporated into domestic law such as the Paris Agreement are Government policy. FoE and Plan B Earth did not maintain that argument in the Supreme Court. As the Court explains, international treaties are binding only as a matter of international law and do not have an effect in domestic law. Treaty commitments continue whether or not a particular Government remains in office and do not constitute a statement of Government policy for the purposes of domestic law [108]. Section 1 of the Climate Change Act 2008 (the CCA 2008) sets a national carbon target. Section 4 obliges the Government to establish carbon budgets for the UK [6]. These are already more demanding than the limits which the UK is currently obliged to have in place under the Paris Agreement [71]. The Court holds that, at the point the ANPS was designated in June 2018, there was no established Government policy on climate change beyond that already reflected in the CCA 2008 [111]. Sustainable development Section 10(2) and (3) of the PA 2008 requires the Secretary of State to designate national policy frameworks with the aim of contributing to the achievement of sustainable development. He has to take into account the environmental, economic and social objectives that make up sustainable development. He must, in particular, have regard to the desirability of mitigating and adapting to climate change [26],[115]. The Court dismisses FoEs argument that the Secretary of State breached this duty on the ground that he failed to have proper regard to the Paris Agreement when designating the ANPS. The evidence shows that the Secretary of State took the Paris Agreement into account and, to the extent that its obligations were already covered by the measures in the CCA 2008, ensured that these were incorporated into the ANPS framework [123] [125]. Insofar as the Paris Agreement might in future require steps going beyond the current measures in the CCA 2008, the Secretary of State took it into account but decided that it was not necessary to give it further weight in the ANPS [126],[129]. The weight to be given to a particular consideration is a matter which falls within the discretion of the decision maker, in this case the Secretary of State. His exercise of discretion is lawful unless the decision made is so unreasonable that no reasonable decision maker would have made it [121]. That could not be said to be the case here [128]. The ANPS was carefully structured to ensure that when HAL applied for development consent to construct the runway, it would have to show at that stage that the development would be compatible with the up to date requirements under the Paris Agreement and the CCA 2008 measures as revised to take account of those requirements [87] [89], [123] [124]. Post 2050 and non CO emissions The Court dismisses FoEs argument that the Secretary of State separately breached his section 10 duty by failing to have regard to, firstly, the effect of greenhouse gas emissions created by the NWR scheme after 2050 and, secondly, the effect of non CO emissions [151],[156],[166]. The UKs policy in respect of the Paris Agreements global goals, including the post 2050 goal for greenhouse gas emissions to reach net zero, was in the course of development in June 2018 [154]. The Secretary of State did not act irrationally in deciding not to assess post 2050 emissions by reference to future policies which had yet to be formulated [155]. The Secretary of States department was also still considering how to address the effect of non CO emissions in June 2018 [166]. The Court further holds that future applications for development consent regarding the NWR scheme will be assessed against the emissions targets and environmental policies in force at that later date rather than those set out in the ANPS [157], [166]. Environmental report Section 5(3) of the PA 2008 requires the Secretary of State to produce an appraisal of sustainability in respect of frameworks such as the ANPS [28]. This is also required by EU law. Council Directive 2001/42/EC of 27 June 2001 (the SEA Directive) as transposed into domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633), requires the Secretary of State to produce an environmental report in respect of major plans and proposals such as the ANPS [28]. The report must include information about relevant environmental protection objectives established at the international, EU or domestic level and the way that they have been taken into account during the preparation of the plan as may reasonably be required (Article 5 and Annex I to the SEA Directive) [57],[58]. The appraisal of sustainability accompanying the ANPS was intended to meet both the domestic and EU requirements for an appraisal of sustainability and environmental report respectively. The Court dismisses the respondents complaint that the appraisal of sustainability accompanying the ANPS was defective because it did not refer to the Paris Agreement [139]. Emphasising that the purpose of these reports is to provide the basis for informed public consultation [137], it holds that an unduly legalistic approach should not be taken when assessing their adequacy [143]. Whether a report provides a sound and sufficient basis for public consultation is a matter that falls within the Secretary of States discretion and the exercise of this discretion will only be found unlawful if it is one that no reasonable decision maker would have made [144]. Were this discretion removed, public authorities might adopt an excessively defensive and counterproductive approach by including so much detail that the public would be unable to comment effectively, contrary to the object of the SEA Directive [146]. In this instance, the targets set out in the CCA 2008, which were referred to in the appraisal of sustainability, took the UKs obligations under the Paris Agreement sufficiently into account [149]. The Court therefore upholds this ground of appeal as well [150].
The Appellants are all employed to work in various capacities on offshore oil and gas installations. The Respondents are their employers. With the exception of one, all were contracted to work to a pattern of two weeks offshore followed by two weeks onshore (called a field break). Whilst offshore the Appellants generally worked a 12 hour shift each day during which rest breaks were taken. This was followed by 12 hours off duty living offshore on the installation. They did not have any days off while they were offshore. For the most part the Appellants were free from work related obligations during the entire period of their field breaks. The Working Time Regulations 1998 (the WTR) set out in domestic law the provisions of the Working Time Directive 2003 (the WTD), which lays down minimum health and safety requirements for the organisation of working time, with minimum rest periods consisting of daily rest, weekly rest and annual leave (Articles 3 to 7 WTD). Article 7 of the WTD and Regulation 13 of the WTR provide that the worker is entitled to paid annual leave of at least four weeks (at the time the Appellants made their claims). Regulation 15 of the WTR provides that a worker may take leave to which he is entitled on such days as he chooses by giving notice to his employer, but that the employer may require him to take leave on particular days. The issue in this case is whether the period spent onshore should count towards the workers entitlement to four weeks paid annual leave. The Appellants issued proceedings contending that annual leave, properly construed, means release from what would otherwise have been an obligation to work, and therefore the WTR required the Respondents to permit them to take annual leave from periods when they would otherwise be required to work on the offshore installation. The Respondents maintained that the time onshore is itself a rest period, as it is not working time, so the paid annual leave entitlement was discharged by two weeks onshore within the shift pattern. The Employment Tribunal held that leave in Regulation 13 of the WTR involved a release from what would otherwise have been an obligation to work. That decision was set aside by the Employment Appeal Tribunal, which held that the time available during field breaks, after allowing for compensatory rest to take account of the fact that the Appellants worked offshore without a weekly rest period, was more than sufficient to cover the entitlement to annual leave. The Inner House of the Court of Session refused the Appellants appeal, holding that what the WTD required was that there be provided to the worker within the year at least four remunerated weeks in which he was free from working commitments. There was nothing in the WTD to suggest that employers might not arrange matters so that annual leave was taken during the school holidays or such similar industrial equivalent. The Supreme Court unanimously refuses the request for a reference to the Court of Justice of the European Union, dismisses the appeal, and affirms the interlocutor of the Extra Division of the Court of Session. The judgment is given by Lord Hope. Under the WTD, every worker must be entitled to a rest break, a daily rest, and a weekly rest period. Each period must be measured separately from each other. They cannot intrude upon each other or overlap [16]. Where necessary because of special working patterns, workers must be afforded equivalent periods of compensatory rest. In the Appellants case, it was agreed that the first two days of each period of their field break is accounted for as compensatory rest, to make up for the fact that they work a 12 hour shift every day during their two weeks offshore [17]. With regard to the annual leave entitlement, Article 7 of the WTD does not require that those four weeks must be taken consecutively or that those weeks cannot be interrupted [18]. But as a period of leave is not a period which is defined in Article 2 as working time, it must be taken to be what that article defines as a rest period. It is an annual period of rest [19]. The WTD does not imply any qualitative requirement to test whether a given period can be accounted as rest. The exercise that must be carried out is simply one of counting up the relevant hours, days or seven day periods and ensuring that the worker is not required to work during those periods. There is no indication anywhere that the WTD was concerned about the quality of the minimum periods of rest, other than to make it clear in the definition of rest period that it means a period which is not working time[21]. The contract in question is a contract for the whole of the year, in which the employees were required to work for 26 weeks [34]. The purpose of the entitlement to annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure. The ECJ has not said that a pre ordained rest period, when the worker is free from all obligations to the employer, can never constitute annual leave. On the contrary, the term rest period simply means any period which is not working time, and any period means every such period irrespective of where the worker is at that time and what he is doing, so long as it is a period when he is not working. It is plain that any period when the Appellants are on field break onshore will fall into that category [36]. The Respondents are therefore entitled to insist that the Appellants must take their paid annual leave during periods other than their 26 working weeks when they are onshore on field break. This is permitted by Regulation 13 of the WTR, read in conformity with Article 7 of the WTD [38]. A reference to the CJEU is not necessary in this case. The meaning to be given to article 7, for the purposes of this judgment, is not open to any doubt [43].
Lord Reed begins by questioning whether the way the case has been approached by the courts below and in the parties printed cases is correct [5 7]. Instead of viewing the representation as an event whose legal consequences were fixed at the time when the statement was made, Lord Reed concludes that the case in fact concerns a continuing representation capable of remaining in effect until the contract is concluded [31]. The representation contained in the critical email was undoubtedly of a continuing nature so long as Mr Erskine remained the prospective contracting party [24]. In principle, the possibility that a representation may continue to be asserted, and may have a causative effect so as to induce the conclusion of a contract, is not necessarily excluded where, as here, the contracting parties are not the original representor and representee. The inference can be drawn from the parties conduct that they proceeded with the negotiation and conclusion of the contract on the basis that the accuracy of the representation continued to be asserted by the representor, implicitly if not expressly, after the identity of the prospective contracting party had changed. In such circumstances, the representation could continue to have a causative effect, so as to induce the conclusion of the contract [25]. Where the inference to be drawn is that a representation continued to be made until the contract was concluded, it may also be inferred that the risk of harm being suffered as a result of reliance upon it, in the event that it was inaccurate, continued to be foreseeable. In such circumstances, the representor may be taken to have assumed responsibility for the accuracy of the representation towards the contracting party who relied upon it, even where he is not the original representee [26]. Just as a representation may continue up to conclusion of the contract when made by a companys agent prior to the commencement of his agency, it may have the same effect where the person to whom it is addressed becomes the agent of the contracting party [27 28]. In this case, the negotiations simply continued after it became apparent that an LLP was to be used as the vehicle for Mr Erskines investment. Neither party drew a line under the previous discussions, disclaimed what had previously been said or sought assurance that it could be relied upon as between the contracting parties [30]. In continuing and concluding the contractual negotiations with Cramaso, through its agent Mr Erskine, without having withdrawn the representation earlier made to him as an individual, the respondents by their conduct implicitly asserted to Cramaso the accuracy of that representation. It continued to be foreseeable that the representation would induce the other party to the negotiations to enter into a contract. The respondents therefore assumed a responsibility towards Cramaso for the accuracy of the representation and owed it a duty of care, which they failed to fulfil [31]. Cramaso is entitled to recover damages for any loss suffered as a result, under section 10 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 [32 43]. In a concurring judgment, Lord Toulson rejects the respondents argument that it was necessary for Cramaso to show that, at the time of the critical email, Mr Lewis knew or ought to have known that there was a high degree of probability that Mr Erskine would be sent the email and would rely upon it. The situation where a statement is made by one party to another, who in turn relies upon it in entering a contract with a third party is different to the present situation, where a statement was made during contractual negotiations by one prospective party to another in relation to the very transaction about which they were negotiating [51]. Lord Toulson agrees with Lord Reed that the fact the representation was negligent rather than fraudulent does not affect its continuing nature; what matters is its continuing potency as an inducing factor [63]. The case will have to return to the Court of Session for further procedure in relation to remedies [44].
Mr George was born in Grenada in 1984 and came to the UK in 1995 at the age of 11. In March 2000 he was granted indefinite leave to remain (ILR) in the UK. He has a partner whom he has known since school, with whom he has a daughter born in 2005. He and his partner do not live together: his daughter however sees him reasonably often and sometimes stays with him. Since 2000, Mr George has been convicted of seven different offences, including supply of cocaine and possession with intent to supply heroin and cocaine. The Secretary of State decided that Mr Georges deportation would be conducive to the public good. From that point he was, by section 3(5) Immigration Act 1971 (the 1971 Act), liable to deportation. Notice was served upon him, in January 2007, that a deportation order was to be made against him. He unsuccessfully challenged that decision and, on 24 April 2008, a deportation order was made in respect of him. The effect of that deportation order, by section 5(1) of the 1971 Act, was to invalidate his ILR. Mr George made a further application to the Secretary of State arguing that his deportation to Grenada would be unlawful under section 6 Human Rights Act 1998 as it would breach his right to private and family life under Article 8 ECHR. The Secretary of State rejected that application, but an immigration judge allowed his appeal on 31 March 2009. The effect of that judgment was to revoke his deportation order. The question in this case is Mr Georges immigration status following the making and revocation of the deportation order. Did Mr Georges ILR, invalidated by the deportation order, revive when the deportation order was itself revoked? Mr Georges solicitors considered that it did, and called on the Secretary of State to confirm this. The Secretary of State however considered that it did not, and instead granted six months discretionary leave to remain (DLR) on 2 August 2013. On the expiry of that leave the Secretary of State granted a further three years DLR. Mr George judicially reviewed the decision not to reinstate ILR. He argued that on the true interpretation of section 5(1) (2) Immigration Act 1971, his ILR was reinstated by the revocation of the deportation order. Subsection (1) provides that a deportation order shall invalidate any leave to remain given [to a person] before the order is made or while it is in force. Subsection (2) provides that a deportation order may at any time be revoked by a further order of the Secretary of State, and shall cease to have effect if he becomes a British citizen. He further argued that an interpretation of section 5 by which his ILR was revived was supported by the fact that other immigration statutes, particularly section 76 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), required that reading of the 1971 Act. Mr Georges claim was dismissed in the High Court, but his appeal to the Court of Appeal was allowed. The Secretary of State appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. Lord Hughes gives the only reasoned judgment, with which the other members of the court agree. The better reading of section 5 of the 1971 Act is that it does not revive prior leave on a deportation orders revocation. The other statutory provisions relied upon by Mr George do not support his case. Mr Georges first argument is that on its natural meaning, (i) revocation of a deportation order under section 5(2) of the 1971 Act must reverse all the consequences of the order listed in section 5(1), including therefore the invalidation of the leave to remain, and (ii) that the words shall cease to have effect in section 5(2) govern both the citizenship and revocation possibilities in that subsection. However, neither point is compelling. The wording of the subsections does not provide a conclusive answer to the question in the appeal [10 11]. Importantly, the 1971 Act has consistently been treated as meaning that revocation does not revive prior leave to remain. Draft Immigration Rules which made this clear were prepared (and considered by Parliament) alongside the 1971 Act, and every subsequent version of the Immigration Rules has contained the same statement. Each version has been laid before Parliament. Likewise, successive editions of practitioner textbooks have taken the same position [12]. Revival of prior leave to remain is not the natural meaning of section 5 of the 1971 Act. It is a significant and far reaching legal concept, and it is likely that if intended, it would have been explicitly provided [29]. The treatment of section 5(2) of the 1971 Act in successive Rules laid before Parliament clearly demonstrates that there was no legislative assumption that the effect of revocation of a deportation order was revival of prior leave to remain [30]. Mr Georges second argument was that other immigration statutes, particularly section 76 of the 2002 Act, indicate that the proper interpretation of the 1971 Act is that revocation of a deportation order revives leave to remain. section 76 provides a power for the Secretary of State to revoke ILR if a person is liable to deportation but cannot be deported for legal reasons. Mr George argued that this power would be superfluous if the making of a deportation order irrevocably cancelled ILR [13 14]. However, this is incorrect. While the legal impediment to Mr Georges deportation arose only after his deportation order was made, in other cases the legal impediment would be apparent prior to this point, and so the order would never be made. section 76 provides a power for the Secretary of State to revoke ILR and instead provide for limited or conditional leave. In any event the only import of this argument goes to Parliaments intention when it passed the 1971 Act: the legislative history set out at [12] demonstrates that Parliament intended a deportation order irrevocably to extinguish prior leave to remain [16 18]. A number of arguments based on other statutes and situations were raised. Where an individual previously possessing ILR had been deported, that individual might need to return to the UK for a brief period. The Secretary of State would need to revoke the deportation order and make a fresh grant of conditional leave. It could not be right that in such a situation the previous ILR would revive, and this provided some limited support for the Secretary of States position. The Immigration (Leave to Enter and Remain) Order 2000 did not alter this conclusion, since the issue is the construction of the 1971 Act, and the problem existed prior to 2000 [19 21]. Mr George had based an argument on an analogy with section 10 of the Immigration and Asylum Act 1999. However, that issue was not squarely before the court, and it would be wrong to determine its interpretation in the abstract [25 26]. The same was true of the UK Borders Act 2007 [27 28]. More fundamentally, it is wrong to reason from suggested scenarios under later Acts to the meaning of an earlier Act. Later statutes are not reliable guides to the meaning of earlier ones, particular in areas where there have been fast moving changes to the legislation [30].
This appeal concerns the liability of a local authority to pay the costs of a party to care proceedings. The proceedings related to two children, whose parents were separated. The local authority applied for a care order under section 31 (2) Children Act 1989 in response to the making of allegations by the children that they had suffered sexual abuse by their father and six other men, in which the fathers parents (the grandparents) had colluded. The six men and the grandparents were joined to the care proceedings as interveners. The judge conducted a lengthy fact finding hearing, as a result of which he exonerated five of the six men and the grandparents of any such abuse. The interveners were entitled to be represented at the hearing. The six men qualified for legal aid but the grandparents did not. They incurred costs of 52,000, which they met by taking out a mortgage on their house. At the end of the hearing they applied for an order that the local authority should pay their costs on the ground that they had succeeded in defending the allegations made against them. It was accepted that the local authority had acted reasonably in bringing the proceedings. The judge refused their application on the basis that it was not usual to order costs in a child case against a party unless that partys conduct had been unreasonable or reprehensible. The Court of Appeal allowed the grandparents appeal, holding that costs could be awarded in respect of discrete fact finding hearings. Although it rarely hears appeals relating solely to costs, the Supreme Court granted permission to appeal because of the important point of principle raised by the appeal, on terms that, whatever the result, the grandparents entitlement to recover their costs as a result of the order of the Court of Appeal would not be disturbed. The Supreme Court unanimously allows the appeal. It holds that the general practice of not awarding costs in care proceedings against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, should not be subject to an exception in the case of discrete fact finding hearings. Lord Phillips delivers the judgment of the court. Family proceedings depart from the general rule applicable in civil proceedings that the unsuccessful party will be ordered to pay the costs of the successful party (CPR 44.3(2)(a)). This is because there are special considerations that militate against the approach appropriate in other kinds of adversarial litigation, particularly where the interests of children are at stake. It is usual in proceedings involving a child for no order to be made in relation to costs [11]. Care proceedings usually involve allegations of misconduct towards a child by some persons, typically a parent. The object of the proceedings is to reach a decision which is in the best interests of the child. Often it is necessary to resolve issues of fact which are disputed. The decision whether or not to have a split hearing is one of case management, taken by the court, and cannot affect the principles to be applied by the court when dealing with costs. If it is correct in a particular case to award costs in relation to individual issues of fact this can more easily be done if the costs associated with those issues are incurred in a separate hearing, but this is only relevant to the practicality of such an order [28]. The question of whether it was just to make an award of costs against a public authority had to be distinguished from the question of whether a litigants costs should be publicly funded, which was a matter for Parliament [39]. The current arrangements might lead to injustice for interveners in the position of the grandparents in the present case, but it did not follow that justice demanded that any deficiency in the provision of public funding should be made up from the funds of the local authority responsible for care proceedings [40]. Equally, if in principle a local authority should be liable for the costs of interveners who succeed in showing that factual allegations against them are unfounded, this liability should arise whether or not the interveners are publicly funded [41]. It was legitimate to have regard to the competing demands on the limited funds of the local authority. It was not right to treat it as in the same position as a civil litigant who raises an issue that is ultimately determined against him. A local authority has a duty to investigate reports that a child has been subjected to significant harm and, where there are reasonable grounds for believing that they may be well founded, to instigate care proceedings. In this respect the role of the local authority has much in common with that of a prosecuting authority and it is for the court to determine where the truth lies [42]. There was no valid basis for restricting the approach of the Court of Appeal in this case to findings of fact in a split hearing and the effect on the resources of local authorities would be significant [43]. For these reasons the Supreme Court concluded that that the general practice of not awarding costs in care proceedings against a party, including a local authority, in the absence of reprehensible behaviour or an unreasonable stance, is one that accords with the ends of justice and which should not be subject to an exception in the case of split hearings [44].
In this appeal, the Supreme Court is asked to decide whether Barclays Bank is vicariously liable for sexual assaults allegedly committed between 1968 and about 1984 by the late Dr Gordon Bates. Dr Bates was a self employed medical practitioner with a portfolio practice. His work included conducting medical assessments and examinations of prospective Barclays employees. Barclays required job applicants to pass a pre employment medical examination as part of its recruitment and employment procedures. Barclays arranged the appointments with Dr Bates and provided him with a pro forma report headed Barclays Confidential Medical Report. Dr Bates was paid a fee for each report; Barclays did not pay him a retainer. If the report was satisfactory, the applicants job offer would be confirmed, subject to satisfactory GCE examination results. Dr Bates conducted the (unchaperoned) medical examinations in a consulting room at his home. It is alleged that Dr Bates sexually assaulted the 126 claimants in this group action during their medical examinations. After Dr Bates died in 2009, the claimants sought damages from Barclays. At first instance, the judge held that Barclays is vicariously liable for any assaults that Dr Bates is proved to have perpetrated. The Court of Appeal agreed and dismissed Barclays appeal. Barclays now appeals to the Supreme Court. The Supreme Court unanimously allows Barclays appeal, and holds that it is not vicariously liable for Dr Bates alleged wrongdoing. Lady Hale gives the judgment, with which all members of the Court agree. Before one person can be made vicariously liable for the torts of another, two elements must be shown. First, there must be a relationship between the two persons which makes it proper for the law to make one pay for the fault of the other. Second, there must be a sufficient connection between that relationship and the wrongdoing of the person who committed the tort. This case concerns the first element [1]. Historically, and leaving aside relationships such as agency and partnership, the relationships that could give rise to vicarious liability were limited to that between an employee and an employer [1]. Accordingly, Barclays case is that, since Dr Bates was an independent contractor and not a Barclays employee, it cannot be held liable for his wrongdoing. As Lord Bridge of Harwich said in D & F Estates Ltd v Church Comrs [1989] AC 177 at 208, It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work [7]. The claimants, on the other hand, argue that the law has been broadened by the Supreme Court decisions in Various Claimants v Catholic Child Welfare Society [2012] UKSC 56 (generally known as Christian Brothers), Cox v Ministry of Justice [2016] UKSC 10 and Armes v Nottinghamshire County Council [2017] UKSC 60. They say that these decisions have established a more nuanced approach, in which a range of factors are considered to determine whether or not it is fair, just and reasonable to impose vicarious liability in the circumstances of the case [8]. Lady Hale examines these three decisions in detail at [10 23], together with their precursor, the Court of Appeal decision in E v English Province of Our Lady of Charity [2012] EWCA Civ 938. The cases make it clear that a person can be held vicariously liable for the acts of someone who is not their employee, provided the relationship between them is sufficiently akin or analogous to employment. However, they do not erode the classic distinction between employment (and relationships that are akin or analogous to employment) on the one hand, and the relationship with an independent contractor on the other hand [24]. Two cases decided by common law courts since Christian Brothers have reached the same conclusion: namely, the Court of Appeals decision in Kafagi v JBW Group Ltd [2018] EWCA Civ 1157 and the Singapore Court of Appeals decision in Ng Huat Seng v Mohammad [2017] SGCA 58 [25 26]. In light of this, the question is, as it has always been, whether the person who committed the tort is carrying on business on his own account, or whether he is in a relationship akin to employment with the defendant. In doubtful cases, the five factors or incidents identified by Lord Phillips in Christian Brothers (reproduced at [15]) may help to identify a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. But the key will usually lie in understanding the details of the relationship. Where it is clear that the person who committed the tort is carrying on his own independent business, it is not necessary to consider the five incidents [27]. On the facts, Dr Bates was not at any time an employee or anything close to an employee of Barclays. Rather, he was in business on his own account as a medical practitioner, with a portfolio of patients and clients. He did work for Barclays, which made the arrangements for the medical examinations and chose the questions to which it wanted answers, but much the same would be true of window cleaners or auditors. Dr Bates was not paid a retainer, which might have obliged him to accept a certain number of referrals from Barclays. He was paid a fee for each report and was free to refuse to conduct an offered examination. He no doubt carried his own medical liability insurance [28]. Lady Hale considers the relationship between the first element of the test for vicarious liability and the definition of worker in section 230(3) of the Employment Rights Act 1996. She concludes that asking whether or not a person is a worker who is not an employee within the definition in section 230(3)(b) may be helpful in identifying whether or not they are a true independent contractor, as opposed to being in a relationship akin to employment. However, she declines to align the common law concept of vicarious liability, developed for one set of reasons, with the statutory concept of worker, developed for quite a different set of reasons [29]. Accordingly, the Court allows the appeal and holds that Barclays is not vicariously liable for any assaults that Dr Bates is proved to have perpetrated in the course of the medical examinations he carried out for Barclays [30].
Mr and Mrs Stott decided to take a holiday in Zante, Greece, in September 2008. Mr Stott is paralysed from the shoulders down and a permanent wheelchair user. He has double incontinence and uses a catheter. When travelling by air, he depends on his wife to manage his incontinence, help him to eat, and change his sitting position. Mr Stott booked return flights with Thomas Cook Tour Operators Ltd (Thomas Cook), a tour operator and air carrier. He telephoned Thomas Cooks helpline twice, informing them that he had paid to be seated with his wife, and was assured that this would happen. However, on arrival at check in for the return journey, Mr and Mrs Stott were told that they would not be seated together. They protested, but were eventually told that the seat allocations could not be changed. Mr Stott had difficulties in boarding the aircraft, and was not sufficiently assisted by Thomas Cook staff. He felt extremely embarrassed, humiliated, and angry. He was eventually helped into his seat, with his wife sitting behind him. This arrangement was problematic, since Mrs Stott could not properly assist her husband during the three hour and twenty minute flight. She had to kneel or crouch in the aisle to attend to his personal needs, obstructing the cabin crew and other passengers. The cabin crew made no attempt to ease their difficulties. Mr Stott, assisted by the Equality and Human Rights Commission, brought a claim under the Civil Aviation (Access to Air Travel for Disabled Persons and Persons with Reduced Mobility) Regulations 2007 (SI 2007/1895) (the UK Regulations), which implement EC disability rights regulations (the EC Regulations). The UK Regulations enable civil proceedings in UK courts for breaches of the EC Regulations, and state that compensation awarded may include sums for injury to feelings. The EC Regulations require Community air carriers (among other things) to make reasonable efforts to provide accompanying persons with a seat next to a disabled person. Mr Stott claimed that Thomas Cook had breached this duty, and sought a declaration and damages for injury to his feelings. Thomas Cook argued that it had made reasonable efforts and that the Montreal Convention (the Convention), an international treaty which governs the liability of air carriers in international carriage by air, precluded a damages award for injury to feelings. Under Articles 17 and 29 of the Convention, damages can only be awarded for harm to passengers in cases of death or bodily injury. The judge at trial found that Thomas Cook had breached the UK Regulations, and made a declaration to that effect. However, he held that the Convention prevented him from making any damages award to Mr Stott. The Court of Appeal agreed. Mr Stott appealed, arguing that his claim was (i) outside the substantive scope of the Convention, since the Convention did not touch the issue of equal access to air travel which are governed by the EC Regulations and (ii) outside the temporal scope of the Convention, since Thomas Cooks failure to make all reasonable efforts began before Mr and Mrs Stott boarded the aircraft. He relied on EU cases discussing a different EU Regulation which required compensation and assistance for passengers in the event of cancellations and delays: the European Court had held that this Regulation was not incompatible with the Convention. The Secretary of State for Transport intervened to support Mr Stotts claim on the second (temporal) ground. The Supreme Court unanimously dismisses the appeal. The judgment of the Court is given by Lord Toulson, with a concurring judgment by Lady Hale. Mr Stott was treated in a humiliating and disgraceful manner by Thomas Cook. However, his claim falls within the substantive and temporal scope of the Convention, and as a result damages cannot be awarded for injury to feelings. Substantively, the Convention deals comprehensively with the carriers liability for physical incidents involving passengers between embarkation and disembarkation. The fact that Mr Stotts claim involves an EU law right makes no difference. Temporally, Mr Stotts claim is for damages and distress suffered in the course of embarkation and flight, and these fall squarely within the temporal scope of the Convention. It is not enough that the operative causes began prior to boarding. The only true question in the case is whether Mr Stotts claim falls within the scope of the Montreal Convention. There is no dispute between Mr Stott and Thomas Cook as to the interpretation of the EC Regulations or UK Regulations, or their compatibility with the Convention. The EU cases do not assist: that other Regulation concerned general standardised measures, and the European Court had recognised that any claim for individualised damages would be subject to the Convention. The case raised no question of European law [54 59]. On substantive scope: the Convention was intended to deal comprehensively with the liability of the air carrier for whatever might physically happen to passengers between embarkation or disembarkation. The fact that Mr Stotts claim relates to disability discrimination makes no difference. The underlying difficulty is that the Montreal Convention and its predecessors long pre dated equality laws. It is unfair that someone suffering as Mr Stott had could not obtain any compensation, but that is the plain meaning of the Convention. It would be desirable for the states parties to the Convention to consider its amendment. It is also possible that the Civil Aviation Authority could take other enforcement actions against Thomas Cook [61 64]. On temporal scope: the operative causes of Mr Stotts treatment undoubtedly began at check in, prior to embarkation. However, this is not enough. Mr Stotts claim is for damages for the humiliation and distress that Mr Stott had suffered during the course of the flight, which fall squarely within the Convention period of exclusivity. To hold otherwise would encourage deft pleading and would circumvent the purpose of the Convention [60]. In her concurring judgment, Lady Hale considers it disturbing that the Convention excludes damages claims for breaches of individuals fundamental rights. It is particularly unsettling that this applies not only to private air carriers such as Thomas Cook, but also to state airlines. A treaty which contravened a fundamental international law norm would be void. Torture is a fundamental norm of this kind, and race discrimination might be another. There is a respectable view that Mr Stotts treatment would, under the European Convention on Human Rights, constitute inhuman and degrading treatment (IDT). However, it appears that IDT has not yet become a fundamental international law norm. Since Thomas Cook is not a state air carrier, these issues do not arise in this case. At the very least, however, the grave injustice done to those in Mr Stotts position should be addressed by the parties to the Convention [67 70].
In June 2006 the Appellant, Hastings Borough Council (the Council), exercised its emergency powers to restrict public access to Hastings Pier on account of its being in a dangerous condition as a result of serious structural defects. The Respondent, Manolete Partners PLC (Manolete), pursued a claim for compensation against the Council for loss to business as a result of the Councils emergency closure of the pier. Manolete brought the claim as an assignee of the business Stylus Sports Ltd (Stylus), which went into liquidation in late 2011. Stylus had leased two units from the freeholder of the pier, Ravenclaw Investments Incorporated (Ravenclaw), and had operated a bingo hall and amusement arcade. Two years before the closure of the pier, Stylus had commissioned a structural engineering survey of the pier, which advised that urgent and future work, within a year, was required to the structure of the pier to prevent an unacceptable risk to the public. Ravenclaw, which was responsible as landlord for repair and renewal of the pier structure, did not take action to remedy the defects identified. Nor did the Council, and the pier remained open to the public. In April 2006, a section of tension cord fell from the pier. This led the Council to attempt, unsuccessfully, to compel Ravenclaw to take action, and to commission its own structural integrity report, which in June 2006 recommended immediate restrictions on access to the pier. The Council exercised its emergency powers under section 78 of the 1984 Act, and in September 2006 obtained a court order under section 77, prohibiting public access to the pier until the necessary remedial works had been carried out. Section 106 of the Building Act 1984 (the 1984 Act), requires compensation to be paid for loss to a business resulting from emergency action, but only where the owner or occupier of the premises has not been in default. The Council alleged that Stylus had breached the Occupiers Liability Act 1957, which imposes a duty of care towards visitors, and the Health and Safety at Work Act 1974, which imposes a duty on an employer to ensure the safety of his employees and the safety of the workplace. The Council sought to rely on these alleged breaches to establish a default, thereby precluding Manolete from making a compensation claim under the 1984 Act. This defence was rejected by the Technology and Construction Court and the Court of Appeal, on the basis that the reference to default was limited default in respect of obligations imposed by the 1984 Act itself. The Supreme Court unanimously dismisses Hastings Borough Councils appeal. Lord Carnwath gives the judgment, with which the other Justices agree. Section 106 of the 1984 Act gives a right to compensation to a person who has sustained damage by reason of the exercise of the authoritys powers under the Act in relation to a matter as to which he has not himself been in default. This requires firstly, identification of the matter in relation to which authority has exercised its powers, and secondly, consideration of whether that is a matter as to which the claimant has been in default [25]. The relevant power is the power to take emergency action under section 78 of the 1984 Act, and the claim for compensation is limited to the period from the date of the Councils emergency closure of the pier until the court order in September 2006 [26]. The matter which led the Council to take such emergency action was identified in the letter sent by the Council to the tenants at the time, which was the state of the pier combined with fear of possible collapse from crowd loading during the events planned for that month, in particular the risk of overloading in an emergency evacuation. The trigger was not the general state of the pier or the specific repairs identified in the report commissioned by Stylus. Whatever Stylus position towards its clients and employees, it was not in default as to the matter which led to the Councils exercise of its section 78 powers, and on this basis, Manolete is entitled to succeed in its claim for compensation [27 8]. Although not strictly necessary to determine the present appeal, Lord Carnwath addresses the issue of whether default in section 106 is limited to default under the 1984 Act itself, as this may impact on future cases. Lord Carnwath finds that the legislative history and the authorities under the predecessor statutes support the conclusion that the default is not limited to the particular provisions of each statute, but extends to other forms of legal default. Concerns as to the wide scope of the factual inquiry do not arise if the inquiry is limited to the two stage assessment set out above [30 5]. The Court of Appeals conclusion that the Council had no defence in principle to the claim for compensation was correct, not because, as they so held, there was no default under the 1984 Act, but because it was not Stylus default which led to the Councils emergency action [36]. Lord Carnwath emphasises that this does not limit the issues which can be taken into account by the arbitrator in assessing the level of compensation payable. The arbitrator may take account of Stylus statutory and common law responsibilities to its clients and employees, the structural condition of the pier and the implications it would have had for the continuation of business quite apart from the effects of the emergency action [37].
The three respondents were part of a vitamins cartel which the European Commission found by Commission Decision COMP/E 1/37.512 of 21 November 2001 had infringed Article 81 of the EC Treaty (now Article 101 TFEU). Accordingly, the Commission imposed fines on the cartelists who were given until 31 January 2002 to appeal against; (a) the infringement decision; and/or (b) the fine. Only BASF exercised that right of appeal and they did so only in respect of the amount of the fine; no appeal was made against the Commissions decision that an infringement had occurred. On 15 March 2006 the Court of First Instance (CFI) reduced the amount of the fine and the deadline for any further appeal expired shortly afterwards (on 25 May 2006) without any further appeal being lodged. Section 47A of the Competition Act 1998 (the 1998 Act) provides that following an infringement finding by the Commission, any person who has suffered loss as a result of that infringement may bring a follow on claim for damages. On 12 March 2008 the four appellants sought to bring such claims against the respondents before the UK Competition Appeal Tribunal (CAT). The respondents argued that the appellants were precluded from doing so on the grounds that the two year limitation period for the bringing of such claims had expired with the result that the claims were time barred. The respondents contended that the limitation period started running on the date on which BASFs time for appealing against the Commissions infringement decision expired (31 January 2002) with the result that the limitation period expired two years later (31 January 2004) and the proposed claims were therefore time barred. The appellants rejected this interpretation contending instead that the limitation period commenced on the date on which BASFs time for appealing the CFIs decision on the level of the fine expired (25 May 2006) with the result that the limitation period expired on 25 May 2008 and the proposed claims were in time. The CAT held that the appellants interpretation was correct and that the proposed follow on damages claims had been brought in time. The Court of Appeal (CA) granted the respondents permission to appeal and allowed the appeal holding that the plain and ordinary meaning of the statutory language drew a clear distinction between infringement decisions and penalty decisions. Only infringement decisions were of relevance in determining when the limitation period started to run. The CA further held that the CAT had no power to extend the time in which follow on damages claims could be brought and EU law did not override the UK time bar or require that a power to extend time be held to exist. The appellants appealed to the Supreme Court on the grounds that the operation of the two year limitation period caused legal uncertainty and thus made it excessively difficult for the appellants to pursue follow on damages claims against the respondents in time in breach of EU law. The Supreme Court unanimously dismisses the appeal. There is no failure to comply with the European legal principles of effectiveness and legal certainty; the statutory limitation period is sufficiently clear, precise and foreseeable as to allow individuals to ascertain their rights and obligations and to exercise those rights without excessive difficulty. The judgment of the Court is given by Lord Mance. National limitation periods are permissible under EU law but they should not operate so as to render practically impossible or excessively difficult the exercise of EU law rights [15]; whether or not they do so is a matter for the national courts to determine in light of the European principles of effectiveness and legal certainty [12]. EU law does not require that the interpretation or true effect of a statutory limitation period be clear beyond doubt [20 22]. The true test is more flexible and does not impose a requirement for absolute clarity. Instead what is required is that national law is sufficiently clear, precise and foreseeable as to enable individuals to ascertain their rights and obligations and exercise those rights without excessive difficulty [23 24]. Section 47A of the 1998 Act satisfies that test as it is sufficiently clear, precise and foreseeable as to enable individuals to ascertain when the limitation period commences. In this case, the statutory limitation period commenced following the expiry of the time within which the respondents could appeal against the Commissions infringement decision; it did not commence following the expiry of the time within which the respondents could appeal against the CFIs decision as to the level of the fine [29]. The Competition Act 1998 repeatedly distinguishes between infringement decisions on the one hand and penalty decisions on the other, making clear that only infringement decisions are of relevance in determining the date upon which a limitation period commences: see e.g. sections 31, 32, 36, 46 and 47A [30]. Given that BASF did not appeal against the Commissions infringement decision it was sufficiently clear that the two year limitation period started on 31 January 2002 following the expiry of the time for appealing against the Commissions infringement decision. As the operation of the statutory time limit is sufficiently clear, precise and foreseeable the statute did not render it excessively difficult for the appellants to exercise their EU law rights. Consequently, EU law does not require that a power to extend time be treated as existing. Indeed, it is clear that the Secretary of State in making the CAT rules deliberately decided that there should be no power to extend time for the commencement of damages claims [42]. Had the Court found that the statutory limitation period failed to comply with the European principles of effectiveness and legal certainty then the United Kingdom would have been in breach of its obligations under EU law and State liability would have arisen. However, even in such circumstances the appellants could not have brought follow on damages claims against the respondents as EU law does not require the setting aside as between civil parties of a limitation defence, successfully established under domestic law, on the grounds that its effect would have been insufficiently clear, precise and foreseeable prior to the court decision establishing it [44 47].
In July 2008, the Appellant, then aged 76, was knocked over on a street in the centre of Huddersfield by a group of men. Two of the men were police officers (DS Willan and PC Dhurmea) and the third was a suspected drug dealer (Williams) whom they were attempting to arrest. As the officers struggled with Williams, he backed into the Appellant, who was standing close by. She fell over, and the three men fell on top of her, causing her to be injured. The officers had foreseen that Williams would attempt to escape. They had not noticed that the Appellant was in the immediate vicinity. The principal question to be decided in this appeal was whether the officers owed a duty of care to the Appellant and whether, if they did, they were in breach of that duty. The judge held that the officers had been negligent, but that the police were immune from claims against them in negligence. The Court of Appeal found that most claims against the police when engaged in their core functions will fail the third stage of the Caparo test i.e. that it will not be fair, just and reasonable to impose a duty of care. The Court also found that Williams had caused the harm to the Appellant and the case therefore concerned an omission by the police, rather than a positive act. Finally, the Court considered that even if the officers had owed the Appellant a duty of care, they had not acted in breach of it. The issues to be resolved in the Supreme Court were (1) does the existence of a duty of care always depend on an application of the Caparo test (2) is there a general rule that the police are not under any duty of care when discharging their core functions, and is there any distinction between acts and omissions (3) was this a positive act or an omissions case (4) did the police owe a duty of care to the Appellant (5) if so, was the Court of Appeal correct to overturn the judges finding that the officers failed in that duty and (6) if there was a breach of a duty of care, were the Appellants injuries caused by it? The Appeal is allowed. Lord Reed gives the lead judgment with which Lady Hale and Lord Hodge agree. Lord Mance and Lord Hughes also allow the appeal but reach the conclusion that a duty of care existed by different reasoning. The proposition that there is a Caparo test which applies to all claims in the modern law of negligence, and that in consequence the court will only impose a duty of care where it considers it fair, just and reasonable to do so on the particular facts, is mistaken [21 24]. It is normally only in novel cases, where established principles do not provide an answer, that the courts need to exercise judgment that involves consideration of what is fair, just and reasonable [27]. This case concerned an application of established principles of the law of negligence and so the existence of a duty of care did not depend on the application of a Caparo test [30]. Like other public authorities, in accordance with the general law of tort, the police are subject to liability for causing personal injury [45 48]. On the other hand, as held by the Supreme Court in Michael v Chief Constable of South Wales Police (Refuge and others intervening) [2015] UKSC 2, the general duty of the police to enforce the criminal law does not carry with it a private law duty towards individual members of the public. The common law does not normally impose liability for omissions, or, more particularly, for a failure to prevent harm caused by the conduct of third parties [50]. The case of Hill v Chief Constable of West Yorkshire [1989] AC 53 is not authority for the proposition that the police enjoy a general immunity from suit in respect of anything done by them in the course of investigating or preventing crime. The effect of Hill is that the police do not owe a duty of care, in the absence of special circumstances, to protect the public from harm through the performance of their function of investigating crime [54 55]. The authorities relied on by the respondent [56 66] are not inconsistent with the police being generally under a duty of care to avoid causing personal injury where such a duty would arise according to ordinary principles of the law of negligence [67 68]. Applying these principles, the police may be under a duty of care to protect an individual from danger of injury which they have themselves created [70]. The present case concerned a positive act, not an omission. The reasonably foreseeable risk of injury to the Appellant when the arrest was attempted was enough to impose a duty of care on the officers [74]. The judge was entitled to find negligence where Willan accepted that he was aware of the risk that Williams would attempt to escape and of the risk to members of the public in that event, that he would not have attempted the arrest at a time when he was aware that someone was in harms way, and that he had failed to notice the Appellant [75 78]. The Appellants injuries were caused by the officers breach of their duty of care; she was injured as a result of being exposed to the danger from which they had a duty of care to protect her [79 80]. Both Lord Mance and Lord Hughes agreed with the majority that the present case concerned a positive act, not an omission, and that the finding of the trial judge on negligence should be restored [82; 122 124]. However, Lord Mance found it unrealistic to suggest that, when recognising and developing an established category of liability, the courts are not influenced by policy considerations [84]. It was not possible to state absolutely that policy considerations may not shape police liability where the conduct of the police may be analysed as positive, rather than simply as involving some form of omission [85 94]. However, he concluded that we should now recognise the direct physical interface between the police and the public, in the course of an arrest placing an innocent passer by at risk, as falling within a now established area of general police liability for positive negligent conduct which foreseeably and directly inflicts physical injury [97]. Lord Hughes referred to vital policy considerations which impose limits on the duty of care which the police owe to individuals. Such considerations are the ultimate reason why there is no duty of care imposed on police officers engaged in the investigation and prevention of crime towards victims, suspects or witnesses. The greater public good requires the absence of any duty of care [103 120]. In response to these points, Lord Reed emphasised that discussion of policy considerations is not a routine aspect of deciding cases in the law of negligence, and is unnecessary when existing principles provide a clear basis for the decision, as in the present appeal [69].
This appeal concerns a repayment of overpaid value added tax (VAT) of approximately 125m (the VAT Repayment) received by the appellant, Shop Direct Group (SDG), a company in the Littlewoods corporate group (the Group). Over a number of years, companies within the Group made substantial overpayments of VAT to HMRC. These VAT overpayments were made on an incorrect understanding of law: the VAT was wrongly calculated when goods were sold to agents of the supplier with a discount for commission. The relevant supplies were made between 1978 and 1996 by companies within the Group, including SDG. VAT was paid to HMRC in relation to these supplies by the representative member of the Group under section 43 of Value Added Tax Act 1994 (VATA 1994). By 2007, following a series of reorganisations within the Group, each of the companies which had made relevant supplies had permanently discontinued its trade. In June 2003, the representative member of the Group made a claim for repayment of VAT from HMRC under section 80 of VATA 1994. This claim included the various payments which led to the VAT Repayment. In September 2007, HMRC made the VAT Repayment pursuant to arrangements which resulted in the VAT Repayment being received by SDG as beneficial owner at the time of receipt. The issue before the Supreme Court is whether the VAT Repayment is liable to corporation tax under the Income and Corporation Taxes Act 1988 (ICTA, later rewritten in the Corporation Tax Act 2009). Sections 103 and 106 of ICTA imposed a charge to corporation tax on post cessation receipts from a trade, profession or vocation. These provisions and their statutory predecessors were enacted to prevent tax avoidance by businesses choosing when to discontinue a business in order to escape tax on post cessation receipts [1, 3 9]. In the proceedings below, the First tier Tribunal, Upper Tribunal and Court of Appeal all held that SDG was liable to corporation tax on the receipt of the VAT Repayment. The Supreme Court unanimously dismisses SDGs appeal. Lord Hodge (with whom Lord Neuberger, Lord Reed, Lord Carnwath and Lord Hughes agree) gives the judgment of the court. Against the background of the other relevant provisions of ICTA [18], the court concludes that section 103 does not contain an implicit restriction so that the charge to tax on post cessation receipts falls only on the former trader whose trade was the source of the income [19]. There are three reasons in support of this conclusion: First, there is nothing in the wording of section 103(1) or (2) which necessitates such implication. The charge to tax is clear: where a trade has been permanently discontinued, corporation tax shall be charged on sums arising from the carrying on of the tradeduring any period before the discontinuance. Section 103(1) required only that the sums are received after the discontinuance; it specified the source of the sums falling within the charge but imposed no further restriction [20]. Secondly, section 103 was designed to catch the fruit of the trade. Its aim was to make sure that sums which a person received, which arose from a discontinued trade and which were not otherwise taxed, were brought into a charge to tax. No sound policy reason has been suggested for confining the charge to the former trader and his personal representatives [21]. Thirdly, the neighbouring provisions of section 103 drew a distinction between the person chargeable to tax and the person who had previously carried on the trade. This suggests that the former was not confined to the latter [22 23]. The court rejects SDGs submission that the sum it received equivalent to the VAT Repayment did not have a former trade as its source, but was the result of an intra group arrangement which was either a transfer for no consideration of that sum, or a transfer for no consideration of the rights to the VAT Repayment. Under section 103 of ICTA, the focus was on the original source of the receipt; the arrangements within the Group as to the specific company that was to receive the VAT Repayment did not alter that original source [24]. Section 106 of ICTA also supports a wider interpretation of the scope of the section 103 charge to corporation tax: section 106(1) quantifies the section 103 charge at the amount of the consideration or the market value of the rights to such sums when the former trader transfers its rights to those future receipts for value and the subsection imposes the charge on the former trader [25]; and section 106(2) disapplies section 103 and substitutes another Case of Schedule D only if the transferee company is carrying on the continuing business when it receives the fruits of the trade which is deemed to have been discontinued [26]. Applying this analysis of sections 103 and 106 of ICTA to the facts of this case, the court concludes that the Groups affairs were organised such that the VAT Repayment was received by SDG as beneficial owner, receiving sums arising from the carrying on of the trade of the companies making relevant supplies during periods before the discontinuance and the sums were not otherwise chargeable to tax. The VAT Repayment accordingly is subject to a charge to corporation tax in the hands of SDG [28 31].
This is an interlocutory appeal in a criminal case in which the appellants are defendants indicted for offences of unauthorised use of trademarks, contrary to section 92(1) of the Trade Marks Act 1994 (the 1994 Act). An offence is committed under that section where a person does any of the following three things (with the intent to gain or to cause loss, and without the consent of the trademark proprietor): (a) applies to goods a sign identical to, or likely to be mistaken for, a registered trade mark, (b) sells goods which bear such a sign, or (c) possesses in the course of a business any such goods with a view to committing an offence under (b). The allegations against the appellants (which have yet to be proved) are that they are engaged in the bulk import and subsequent sale of goods bearing registered trademarks, manufactured abroad, in countries outside the EU. A significant portion of the goods said to be sold by the appellants were manufactured (and the trademark applied) with the permission of the trademark proprietor, but were then sold without the trademark proprietors consent (for example because the goods were in excess of the numbers or below the quality permitted by the trademark proprietor). The appellant describes these as grey market goods and distinguishes them from true counterfeits manufactured without the authorisation of the trademark proprietor. At a preparatory hearing in the Crown Court, the appellants argued that while the sale of grey goods attracts civil liability, it is not covered by the offence in s.92(1), which properly construed applies only to true counterfeits. The appellants argued that such a sign in subsection (1)(b) refers back to (1)(a), so that 1(b) applies only to goods where the trademark has been applied without the consent of the proprietor. Any goods in the grey market category have had the trademark originally applied with the consent of the proprietor. It is only the sale which the proprietor has not authorised. It follows, they contend, that they are not, when it comes to paragraph (b), goods which bear such a sign. Both the trial judge and the Court of Appeal (Criminal Division) rejected that submission. The Supreme Court unanimously dismisses the appeals. Lord Hughes gives the lead judgment, with which the rest of the Court agrees. So called grey market goods are caught by the criminal offence in s.92(1), and the appellants contended construction of that section must be rejected. The plain reading of such a sign in (1)(b) is that it refers back to the sign mentioned in (1)(a) i.e. a sign which is identical to, or likely to be mistaken for, a registered trade mark. 1(b) therefore covers the unauthorised sale of any goods bearing a trademark (regardless of whether the trademark was applied to the goods in their manufacture with consent or not). But this reference back to (1)(a) does not also incorporate into the meaning of such a sign the commission of an offence under (1)(a), i.e. the requirement that the sign has been applied without the consent of the proprietor. Such a reading of (1)(b) is strained and unnatural and requires one to read such sign as such a sign, so applied. The offences set out in (a), (b) and (c) are not cumulative, but separate, and the requirement in the opening lines of s.92(1) that the use made of the sign is without the consent of the proprietor applies to each type of use specified whether it is the application of a trademark to goods, the sale of goods bearing a trademark, or the possession for sale of goods bearing a trademark. [8 12] The predecessor of section 92, section 58A of the Trademarks Act 1938, also plainly covered grey market goods. The appellants contention therefore that the more stringent test for intention in s.58A had the practical effect of confining criminal liability to cases of their category of true counterfeits must be rejected. [16 17] There is therefore no ambiguity in the language of the section to justify investigating the Parliamentary debate at the passing of the 1994 Act. In any event, the appellants did not contend that Parliament considered a difference between true counterfeits and grey market goods. Still less is there any point at which it can be suggested that Parliament plainly confined itself to criminalising fake goods and abjured the criminalising of grey market goods. The authorities relied on by the appellants in support of their contention that such a distinction was plainly intended do not assist here, as they were not addressing any difference between fake goods and unauthorised goods on the grey market, and moreover came years after the passage of the 1994 Act so could not have been in mind at the time of its passing. [13 14] The appellants are correct that in the context of goods which a proprietor voluntarily puts into the European single market with his trademark attached, section 12 of the 1994 Act, transposing article 7 of Directive 89/104/EEC, has the effect that further objection to the use of the mark is limited to special cases, such as changes or impairments to the goods. But that is true whichever of the rival constructions of section 92 is correct. Where it applies, this concept of exhaustion means that there is no infringement of the mark as a matter of civil law, and thus no criminal offence. But this sheds no light on the correct construction of section 92. [15] There is no reason to strain the construction of s.92(1) to exclude the sale of grey market goods. This is not because of the supposedly adverse consequences which the Crown argued would follow, some of which would be as likely to ensue even on the correct interpretation of the section. The distinction between the two categories suggested by the appellant is not cut and dried, but both are clear infringements of the rights of the trademark proprietor. The plain meaning of the Act is that it is unlawful to put grey goods on the market just as it is to put fake ones on there. In both cases the trader is setting out to profit from someone elses trademark without permission. [18] In the alternative, the appellants contend that the Crowns construction of section 92(1) involves a disproportionate breach of their rights under article 1, Protocol 1 to the European Convention on Human Rights. But the 1994 Act does not deprive them of their property, as it does not stop them selling the goods, except if they wish to do so whilst still with the misleading and infringing trademark attached. Such regulation of use or disposal of goods is permitted under the second paragraph of article 1 in the general interest, and is in any event a proportionate measure, striking a legitimate balance between the rights of the proprietor to protect his valuable trademark, and those of the person who wishes to sell good which he has bought. [19]
The girl at the centre of this appeal, B, is a British national now aged 7. The Respondent (a British national of Pakistani ethnicity) is Bs biological mother and was previously in a same sex relationship with the Appellant (a British national of Indian ethnicity), who has strong claims also to be described as a mother of B. The couple lived in England and set up home together, but they never became civil partners. Following IUI treatment, given to them both as a couple, the Respondent gave birth to B in April 2008. The Respondent undertook most of Bs care but the Appellant also helped care for her and, as co parents, they took B out at weekends, in particular to visit members of their families. In December 2011, the relationship broke down acrimoniously and the Appellant left the family home. Over the next two years, the Respondent progressively reduced the level of the Appellants contact with B. The Appellant objected and suggested mediation. Meanwhile, the Respondent decided privately to move with B to live in Pakistan where she says members of her wider family remain. She did not share this decision with the Appellant. On 3 February 2014 the Respondent moved to Pakistan with B where they have remained ever since. Although the Appellant did not consent to it, Bs removal to Pakistan was lawful. On 13 February 2014, unaware where the Respondent had taken B, the Appellant applied under the Children Act 1989 (1989 Act) for orders for shared residence of B, or for contact with her. This application depended upon showing that B was habitually resident in England at the time it was issued (i.e. 13 February 2014). Subsequently, having learned that the Respondent had taken B to Pakistan, the Appellant also applied for orders under the courts inherent jurisdiction over B (as a British national) that she be made a ward of court and returned to England. In July 2014 Hogg J held that (a) the English court had no jurisdiction to determine the Appellants 1989 Act application because B had lost her habitual residence immediately upon her removal to Pakistan on 3 February 2014; and (b) the inherent jurisdiction over a British national who was neither habitually resident nor present in England should be exercised only if the circumstances were dire and exceptional, and this was not such a case. On 6 August 2015, the Court of Appeal dismissed the Appellants appeal. The Appellant appeals to the Supreme Court in respect of both applications. The Supreme Court allows the appeal on the Appellants application under the 1989 Act by a majority of 3:2 (Lord Clarke and Lord Sumption dissenting) on the basis that B remained habitually resident in England on 13 February 2014. Lord Wilson gives the lead judgment. Habitual residence Lord Wilson (with whom Lady Hale and Lord Toulson agree) observes that two consequences flow from the modern international primacy of the concept of a childs habitual residence. First, it is not in the interests of children routinely to be left without a habitual residence [30]. Second, the English courts interpretation of the concept of habitual residence should be consonant with its international interpretation [31]. The present case, however, involved a third aspect of the concept of habitual residence: the circumstances in which a child loses his or her habitual residence [32]. The traditional English law approach to this issue is heavily dependent upon parental intention. In particular, in In re J (A Minor), Lord Brandon observed that a person may cease to be habitually resident in a country in a single day if he or she leaves it with a settled intention not to return and settle elsewhere [33 34]. Lord Wilson notes that the Supreme Court in A v A held that the English concept of habitual residence should be governed by the criterion set out in the CJEU jurisprudence: namely, that there be some degree of integration by the child in a social and family environment. This focuses on the childs situation, with parental intention being merely one relevant factor [35 38]. Lord Wilson identifies two points in the CJEU jurisprudence relevant to the issue of when habitual residence is lost. First, the effect of Recital 12 to the Brussels II Regulation is that, where the interpretation of the concept of habitual residence can reasonably follow two paths, the courts should follow the path perceived better to serve the interests of children. Second, the CJEU has indorsed the view that, although it is conceivable that a child may have no habitual residence, this will only be in exceptional cases [40 44]. Lord Wilson concludes that the modern concept of a childs habitual residence operates in such a way as to make it highly unlikely, albeit conceivable, that a child will be left without a habitual residence; the concept operates in the expectation that, when a child gains a new habitual residence, he or she loses their old one. Lord Brandons observation in In Re J should no longer be regarded as correct, and Hogg J fell into error in being guided by it [45 47]. Lord Wilson therefore states that the correct question is whether B had by 13 February 2014 achieved the requisite degree of disengagement from her English environment [48]. He concludes that, taken cumulatively, the factors pointing to the conclusion that B had not by 13 February 2014 achieved the requisite degree of disengagement compel the conclusion that she retained habitual residence in England [49 50]. Accordingly, the Appellants application under the 1989 Act can and should proceed to substantive determination by the High Court (Family Division) [51]. Lord Sumption (dissenting) considers that Hogg J made no error of law and, having heard and reviewed the evidence, was entitled to find that B lost her habitual residence in England on 3 February 2014 [64 80]. Lord Clarke agrees [89 95]. Inherent jurisdiction Given the majoritys conclusion on habitual residence, it is unnecessary to decide whether the inherent jurisdiction can be exercised. Lady Hale and Lord Toulson observe that none of the reasons for caution when deciding whether to exercise the inherent jurisdiction has much force in this case. They consider that the jurisdiction is not confined to exceptional circumstances; it could have been exercised if the court held that B required protection [59 62]. Lord Wilson agrees, but leaves open the question of whether it would have been appropriate to exercise the inherent jurisdiction in this case [53]. Lord Sumption (dissenting) considers that, unless the inherent jurisdiction is reserved for exceptional cases, it may be exercised in a manner which cuts across the statutory scheme. He considers that the jurisdiction could not have been exercised in this case [81 87]. Lord Clarke, noting that the jurisdiction must be exercised with great caution, agrees that it should not be used on the facts of this case [96 97]. 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 appellant was convicted of drug trafficking offences on 21 May 1999 and sentenced to 25 years imprisonment. On 29 March 2000, he was ordered to pay a little over 5.4 million by way of a confiscation order. The order required the appellant to pay the amount within 12 months or serve six years imprisonment in default of payment. On 4 May 2007, a receiver appointed to realise the appellants assets paid 12,500. The magistrates deducted seven days from the six year term in default, to account for that part payment. At that time interest had increased the net sum outstanding, allowing for the part payment, to 8.1 million. Later in 2007 and 2011, the appellants receiver made further payments of 12,500 and 65,370. The prison authorities calculated the reduction in the six year default term on the basis of the proportion which these payments bore to the 8.1 million at the time of his committal. That produced a total reduction of 24 days. Had the arithmetic been applied instead to an outstanding figure confined to the original 5.4m, an extra 11 days reduction would have been made. The issue in the appeal is whether interest is included in the starting point under s.79(2) Magistrates Courts Act 1980 for the giving of proportionate credit for part payment of a confiscation order. The Supreme Court unanimously allows the appeal. Lord Reed and Lord Hughes give a joint judgment with which the other Justices agree. The key provisions of the Drug Trafficking Act 1994 (DTA), as in force at the relevant time, were s.10(1), which treats interest for the purposes of enforcement as part of the amount to be recovered under the confiscation order and s.10(2) which enables a Crown Court judge to refix and increase the default term if the addition of accrued interest takes the sum outstanding into a higher bracket in the relevant schedule of defaults terms. [7] At the relevant time, s.9 DTA stated that where the Crown Court orders a defendant to pay any amount under s.2 DTA, ss.139(1) (4) and 140(1) (3) of the Powers of Criminal Courts (Sentencing Act) 2000 (the 2000 Sentencing Act) shall have the effect as if that amount were a fine imposed on the defendant by the Crown Court. [9] S.140(1) of the 2000 Sentencing Act treats for enforcement purposes a fine imposed by the Crown Court as if it had been imposed by the magistrates, and thus a confiscation order is treated the same. S.76 Magistrates Courts Act 1980 contains the magistrates power to commit an individual to prison for failure to pay a fine and an alternative power to issue a warrant of distress (now named a warrant of control). S.79 Magistrates Courts Act 1980 is the only provision dealing with part payments. [11] The difficulties in this case arise from the fact that the enforcement of confiscation orders is achieved by applying statutory provisions to confiscation orders which were not designed for them. A confiscation order is thus treated as if it was a fine imposed by the magistrates. The difference between a magistrates imposed fine and a Crown Court imposed fine is that magistrates do not fix a default term when imposing the fine. Imprisonment in default is only considered in the event of a default and, at that time, the magistrates will know whether the default is total or partial. Thus, credit can be given for part payments made before the commitment process is undertaken. However, s.139(2) of the 2000 Sentencing Act mandates the fixing of an anticipatory default term at the time the fine or order is imposed. [12] The difference in practices led the lower courts to analyse s.79(2) Magistrates Courts Act 1980 as assuming the standard magistrates practice and thus to conclude that the references in that subsection to a period of imprisonment having been imposed in default of payment were references to the act of the magistrates in issuing the warrant of commitment. This caused the consequential difficulty that s.79(2) would say nothing about how to deal with part payments made in Crown Court cases between the Crown Court making a confiscation order and the later magistrates proceedings. Hence the Court of Appeal understandably read additional words into s.79(2). [13] The period of imprisonment in default of payment is imposed for the purposes of s.79 when the Crown Court discharges its statutory duty under s.139(2) of the 2000 Sentencing Act and fixes the (anticipatory) term in default. This construction follows from s.150 Magistrates Courts Act 1980 and is necessary to make sense of s.140(3) of the 2000 Sentencing Act. It is also assumed by the Magistrates Court Rules. Thus, the default term in the case of Crown Court orders must be the term that the court imposed at the time of making its order. [15 17] The operative words of s.79(2) expressly say that the days to be deducted are to be the number which bear the same proportion to the total default term imposed (by the Crown Court) as the part payments bear to so much of the said sum as was due at the time the period of detention was imposed. At the time the Crown Court imposed the default term, there was as yet no interest accrued at all. [20] Straining of the wording of s.79(2) cannot be justified where it would adversely impact on the period of imprisonment to which a person is subject. Penal legislation, particularly legislation imposing penalties that deprive liberty, is construed strictly. The natural construction of the section is that the starting point for the arithmetical calculation of reduction in days of imprisonment is the sum outstanding at the time of the Crown Court order. [21] charges of distress do not support the respondents construction. The reference is explained by the case of magistrates first issuing a warrant for distress and only subsequently fixing the default term for non payment. The addition of such costs and charges is expressly provided for and that does not mean that an equivalent provision can be read in as a consequence of a provision in different statute (s.10(1) DTA). [22]
In 2001 Regeneron Pharmaceuticals Inc filed patents for a new type of genetically modified mouse. Regenerons breakthrough was a hybrid version of the gene that produces antibodies, combining a section of the mouses genetic material (the constant region DNA) with a section of genetic material from a human (the variable region DNA). The resulting mouse can be used to produce antibodies which are suitable for medical treatment in humans, but are sufficiently similar to mouse antibodies that they do not cause immunological sickness in the mouse. The idea of combining a human variable region with a mouse constant region was a major contribution to science. At the hearing in February 2020 the court was told that hybrid mice incorporating this invention had a range of medical uses, including in the race to generate antibody therapies against coronavirus. In 2013 Regeneron sued a British company, Kymab Ltd, for infringement of its patents. Kymab was producing its own genetically modified mice, branded Kymice, with a similar genetic structure to Regenerons mice. Kymab responded by arguing the patents filed by Regeneron in 2001 were invalid because they fell foul of a patent law rule called sufficiency. Sufficiency means documents filed with the patent must be detailed enough to enable scientifically skilled readers to make the invention for themselves. The Court of Appeal found that Regenerons patents contained enough information to enable a skilled reader to insert some of the human material into a mouses genes. This would have created one type of hybrid mouse. However, the patents did not explain how to create a hybrid structure incorporating the full human variable region genes into the mouses genome. That was a complicated feat of genetic engineering and no reliable method for doing it was invented until 2011. This meant an expert reading the patents in 2001 would be unable to make many types of hybrid mice which Regeneron had claimed to have invented. The Court of Appeal upheld the patents, saying there was no need for the patents to explain how to make the full range of mice because Regenerons idea was a principle of general application. Kymab appealed to the Supreme Court. The Supreme Court allows Kymabs appeal by a majority of four to one, holding that the patents are invalid. Lord Briggs gives the majority judgment. Lady Black gives a dissenting judgment. A patent reflects a bargain between the inventor and the public. The inventor gains a time limited monopoly over the making and use of a product. In return, the public gains the ability to make the product after the expiry of the monopoly. As part of this bargain, the inventor must publish sufficient information to enable a skilled member of the public to make the product. This ensures that patent holders only gain legal protection which is proportional to their actual technical contribution to the art, and encourages inventors to conduct research for the benefit of society [23]. The Court of Appeal was influenced by the fact that Regenerons invention is a principle of general application. Its contribution to the field was present not only in mice which could be made in 2001, but also in mice with a larger amount of human genetic material which could be made using later scientific developments. The Court of Appeal thought it was unfair to limit Regenerons monopoly to types of hybrid mice which could be made when the patent was filed [27]. However, the authorities establish a number of principles in this area. Patentees must not make overly broad claims [56(iii)]. If they claim the right to make a range of products, sufficiency means they must disclose enough information to enable a skilled person to make the full range which is claimed [56(iv)]. This means a relevant range which affects the utility of the product [56(vii)]. So Regeneron was not required to explain how to make mice of varying colours, or with tails of varying length, because these features do not affect a mouses ability to produce antibodies [21]. Applying these principles, Regenerons patents did not enable a skilled person to make mice containing more than a very small section of the human variable region. The amount of human material was an important factor which was thought to affect the diversity of useful antibodies which the mice would produce. Mice at the more valuable end of the range could not be made using Regenerons patents. So Regeneron was claiming a monopoly which was far wider than its contribution to the art [57]. The Court of Appeal upheld patents over a range of mice even though Regeneron could only make mice over a small part of the range, at the least beneficial end of the range with the smallest amount of human genetic material [58]. Its analysis watered down the sufficiency requirement which is a bedrock of patent law, tilting the balance of patent law in favour of patentees and against the public [59]. Therefore, the majority allows the appeal and holds that the patents are invalid for insufficiency. Lady Black gives a dissenting judgment, in substance agreeing with the Court of Appeal. The application of the sufficiency requirement depends on the nature of the individual invention and the facts of the case. The Court of Appeal characterised Regenerons invention as a principle of general application which solved the problem of immunological sickness [83 84]. Seen in this way, the sufficiency requirement was met since the invention was deployed in each mouse across the range, irrespective of the quantum of human material incorporated [86].
This appeal concerns the effect of the GLA Roads and Side Roads (Transfer of Property etc) Order 2000 (SI 2000/1552) (the Transfer Order) and the GLA Roads Designation Order 2000 (SI 2000/1117) (the Designation Order). By combined operation of those Orders, responsibility for Greater London Authority (GLA) roads was transferred from individual London borough councils, including the Respondents (the Councils) as local highway authorities, to the Appellant (TfL). The provision at the heart of this appeal is article 2(1)(a) of the Transfer Order, which provides for the transfer of the highway, in so far as it is vested in the former highway authority. TfL and the Councils convened a statutory arbitration before Mr John Males QC. The purpose was to determine exactly what specified property and liabilities transferred to TfL in relation to each highway. The dispute between the parties is whether the automatic transfer of the highway under article 2(1)(a) of the Transfer Order carried with it: (i) only the zone of ordinary use (i.e. the road surface and the airspace and subsoil necessary for the operation, maintenance and repair of the road) or (ii) the entire vertical plane (i.e. all the airspace above and the subsoil below the surface of the road), to the extent that the relevant council already owned it prior to the transfer date. In the arbitration and at each stage on appeal, the Councils argued the transfer was limited to the former, while TfL argued for the latter, wider approach. The arbitrator broadly agreed with TfLs case. The caveat was that particular layers or slices of subsoil and/or airspace that had acquired a separate identity by the transfer date could not be treated as parts of the highway and so did not pass to TfL. On appeal to the High Court, Mr Justice Mann agreed with the arbitrator, recording a concession by counsel for TfL that its claim related to land acquired for or appropriated to highway purposes. However, on further appeal, the Court of Appeal adopted a narrower position. It considered that the word highway in article 2(1)(a) of the Transfer Order must have been intended to carry the same meaning as it had at common law, and in relation to section 263 of the Highways Act 1980 (the 1980 Act). Thus, the Court of Appeal held that only the zone of ordinary use had transferred to TfL. The Supreme Court unanimously allows the appeal. Lord Briggs gives the sole judgment of the Court. The word highway has no single meaning in the law [6]. The default land law position, that the conveyance of freehold land automatically involves the transfer of the entire vertical plane, was not followed in successive statutory provisions dealing with automatic vesting of highway interests formerly in private ownership, as seen in the decision in Tunbridge Wells Corpn v Baird [1896] AC 434 (HL) (the Baird principle) [7 8]. The Baird principle provides that such a transfer was limited to the road surface, the subsoil immediately beneath it and airspace sufficient to enable use and enjoyment by the public and maintenance by the highway authority [9]. The limits set by the Baird principle reflected concerns about expropriation of private property without compensation resulting from statutory vesting [11]. It was, rightly, common ground that the Baird principle applies to section 263 of the 1980 Act, replicating section 226 of the Highways Act 1959 (the 1959 Act) [12]. However, section 265 of the 1980 Act and its predecessors make provision for the transfer of property and liabilities, as between successive highway authorities, of highways designated as trunk roads [13]. The first major property transfer scheme was undertaken in relation to newly designated trunk roads by section 7 of the Trunk Roads Act 1936 (the 1936 Act) [15]. Despite differences in language, the substance of section 228 of the 1956 Act and section 265 of the 1980 are materially the same as section 7 of the 1936 Act [16 19]. The extent of transfer of highway rights is complicated by the fact that local highway authorities often acquire property rights in relation to highways by means other than automatic vesting under section 263, such as compulsory purchase and acquisition by private treaty and, at times, for non highway purposes [21]. Ownership of airspace above and subsoil below the zone of ordinary use may also be of substantial commercial or development value, particularly in urban areas like Central London [22]. Disagreeing with the Court of Appeal, the Supreme Court decides that the Baird principle does not apply to article 2 of the Transfer Order or to section 265 of the 1980 Act, upon which article 2 was modelled [28]. The words [t]he highway, in so far as it is vested in the former highway authority in article 2, properly construed, mean only that part of the vertical plane relating to a GLA road which was vested in the relevant council on the operative date, in its capacity as former highway authority, is transferred [29]. The Supreme Court disagrees with the Court of Appeals reasoning that the word highway, used in article 2 and section 265, has a clear common law meaning it is not a defined term and its meaning in this context is to be found through the almost identical wording of section 265 on trunk roads [31 33]. Given the different ancestry of, and purposes served by, section 263 and section 265 of the 1980 Act, the word highway used in both provisions cannot be given the same meaning [34 36]. The phrase beginning with in so far as in section 265(1)(a) of the 1980 Act, and in article 2, imports the ownership capacity limitation [37 39]. The Courts approach, like that of the arbitrator, largely avoids irrational types of multi layering on the vertical plane in the sense of different highway authorities owning parts of the vertical plane in the same highway [40 43]. Further, expropriation concerns are not well founded because, generally, the transfer of property from one highway authority to another is simply the quid pro quo for relief from responsibility for operation and maintenance [48]. Lastly, there is no presumption or burden of proof as to the extent of highway rights transferred [49 50]. This decision does not resolve any issues as to the ownership of the lateral plane of a highway [51].
The issue in the appeal is whether the definition of terrorism in the Terrorism Act 2000 includes military attacks by non state armed groups against national or international armed forces in a non international armed conflict. Mr Gul was convicted by a jury of five counts of disseminating terrorist publications, for which he was sentenced to five years imprisonment. The offence was created by section 2 of the Terrorism Act 2006, which defines terrorist publications as including publications which are likely to be understood as a direct or indirect encouragement to the commission, preparation, or instigation of acts of terrorism. Terrorism is defined in section 1 of the Terrorism Act 2000, as the use or threat of action, inside or outside the United Kingdom, (a) involving serious violence against a person, involving serious damage to property, endangering another persons life, creating a serious risk to public health or safety, or designed to seriously interfere with seriously disrupt an electronic system; (b) designed to influence a government or intergovernmental organization or to intimidate the public or a section of the public; and (c) made for the purpose of advancing a political, religious, racial, or ideological cause. The publications in question included videos which Mr Gul posted on YouTube showing (i) attacks by members of al Qaeda, the Taliban, and other proscribed groups on military targets in Chechnya, and on the Coalition forces in Iraq and in Afghanistan, (ii) the use of improvised explosive devices against Coalition forces, (iii) excerpts from martyrdom videos, and (iv) clips of attacks on civilians, including the 11 September 2001 attack on the United States. These videos were accompanied by commentaries praising the bravery, and martyrdom, of those carrying out the attacks, and encouraging others to emulate them. The Court of Appeal refused Mr Guls appeal against conviction and sentence. His appeal to the Supreme Court was based on a challenge to the conclusion of the Court of Appeal (arising from a direction given by the trial judge following a request from the jury) that the definition of terrorism included military attacks by non state armed groups against national or international armed forces in their territory. The Supreme Court unanimously dismisses Mr Guls appeal for reasons contained in a judgment given by Lord Neuberger and Lord Judge, with whom the other members of the Court agree. Mr Gul argued that both domestic law and international law required the statutory definition of terrorism to be interpreted narrowly, so as to exclude its application to situations such as those depicted in some of the videos which he had uploaded, namely those involving actions by non state armed troops attacking foreign armed forces in their territory. The court addresses this argument first by considering the application of familiar domestic law principles to the statutory definition of terrorism, and then by considering whether that results in a conclusion which has to be adapted to meet those requirements of international law that are incorporated into domestic law [25]. Applying the familiar domestic law approach to statutory interpretation, the Court holds that there is no basis on which the natural, very wide, meaning of section 1 of the 2000 Act could be read restrictively, as Mr Gul argued. The definition had clearly been drafted in deliberately wide terms so as to take account of the various and possibly unpredictable forms that terrorism might take, and the changes which may occur in the diplomatic and political spheres [312, 38]. In reaching this conclusion, the Court considers that section 117 of the 2000 Act, which prohibits the prosecution of most offences under the 2000 and 2006 Acts without the consent of the Director of Public Prosecutions or (in some cases) the Attorney General, is of no assistance [35 37, 42]. The Court also observes that creating an offence with a very broad reach and then invoking prosecutorial discretion as a means of mitigation is undesirable in principle and should only be adopted if it is unavoidable. In these circumstances, the only reason for the Court to interpret the definition more restrictively would be if it conflicted with the European Convention on Human Rights (which was not relied on by Mr Gul) or with the United Kingdoms obligations in international law more generally [38]. The first aspect of Mr Guls argument here was that the United Kingdoms international obligations require it to define terrorism more narrowly in its criminal laws, as it should have the same meaning as it has in international law. The second aspect was that the United Kingdom could not criminalize terrorism happening abroad except so far as international law allowed. Both aspects of the international law argument face the insuperable obstacle that there is no accepted definition of terrorism in international law [44]. The U.N. General Assemblys working group seeking to agree a comprehensive international convention on terrorism, reported in 2012 that there were disagreements as to the precise distinction between terrorism and legitimate struggle of peoples fighting in the exercise of their right to self determination. And, although there are other, non comprehensive treaties dealing with terrorism, there is no plain or consistent approach in UN Conventions on the issue [4648]. This is consistent with what was said by this Court in Al Sirri v Secretary of State [2012] UKSC 54, [2012] 3 WLR 1263, para 37 [44]. Moreover, there have been U.N. resolutions referring to the activities of al Qaeda and the Taliban as terrorism, although their actions involved insurgents attacking forces of states and intergovernmental organizations in non international armed conflict. And the international law of armed conflict does not give any immunity combatants in non international armed conflicts [4950]. It is true that some other provisions of the 2000 and 2006 Acts give effect to treaties that do not extend to insurgent attacks on military forces in non international armed conflicts. But there was no reason why the United Kingdom could not go further in the 2000 Act than the treaties had. And even if those treaties had intended to limit the definition of terrorism that they applied, that would only affect the particular provisions of the 2000 Act that implemented those treaties [54]. As to the second aspect of the international law argument, it is irrelevant for present purposes whether the United Kingdom can criminalize certain actions committed abroad, because the material in this case was disseminated in the United Kingdom [56]. Therefore, whether one approaches the matter as an issue of purely domestic law, or as an issue of domestic law read in the light of international law, there is no valid basis for reading the definition of terrorism more narrowly than the plain and natural meaning of its words suggested. In parting, the Court notes that although the issue is one for Parliament to decide, the current definition of terrorism is concerningly wide. [38] Canada and South Africa, for example, exclude acts committed by parties regulated by the law of armed conflict from the definition, and a recent report in Australia recommends that that country should follow suit. [61] The Independent Reviewer of Terrorism Legislation in the United Kingdom, Mr David Anderson QC, has made the point that the current law allows members of any nationalist or separatist group to be turned into terrorists by virtue of their participation in a lawful armed conflict, however great the provocation and however odious the regime which they have attacked [61]. The 2000 and 2006 Acts also grant substantial intrusive powers to the police and to immigration officers, which depend upon what appears to be a very broad discretion on their part. While the need to bestow wide, even intrusive, powers on the police and other officers in connection with terrorism is understandable, the fact that the powers are so unrestricted and the definition of terrorism is so wide is probably of even more concern than the power of criminal prosecution to which the Acts give rise. [64]
This case concerns the correct construction of refund guarantees issued by the Respondent bank in relation to six shipbuilding contracts. In May 2007 the first to sixth claimants (the Buyers) entered into shipbuilding contracts (the Contracts) with Jinse Shipbuilding Co Ltd (the Builder). Under the Contracts the Builder agreed to build and sell one vessel to each of the six Buyers. The price of each vessel was US$33.3m, which was to be paid in five equal instalments. Article X.8 of the Contracts stated that payment of the first instalment was conditional upon the Builder providing the Buyer with a satisfactory refund guarantee from a first class Korean bank. Article X.5 gave the Buyer a right to a full refund in the event that the Buyer exercised their right to reject the vessel or to terminate, cancel or rescind the Contract. Article XII.3 of the Contracts then gave the Buyers further rights to repayment of instalments paid in the event of a default by the Builder. In particular, Article XII.3 stated that if the Builder became subject to certain insolvency proceedings, the Buyer may by notice in writing to the Builder require the Builder to refund immediately to the Buyer the full amount of all sums paid by the Buyer to the Builder. As envisaged by Article X.8 of the Contracts, in August 2007 the Respondent bank issued each of the Buyers with materially identical Advanced Payment Bonds (the Bonds). Paragraph 2 of the Bonds stated that, under the terms of the Buyers Contract with the Builder, the Buyer was entitled to a refund in the event that they exercised their right to reject the vessel or to terminate, cancel or rescind the Contract. The Respondents guarantee obligation was then set out in paragraph 3, which stated that the Respondent promised to pay the Buyer all such sums due to you under the Contract. The first line of paragraph 3 explained that this promise was given [i]n consideration of your agreement to make the pre delivery instalments under the Contract. Paragraph 4 stated that payment would be made upon receipt of a written demand from the Buyer stating that the Builder had failed to fulfil the terms of the Contract and specifying the amount claimed. Paragraph 5(v) stated that the Respondents liability under the Bonds would not be affected by any insolvency, re organisation or dissolution of the Builder. Each of the Buyers duly paid the first instalment of US$6.66m due under the Contracts. One of the Buyers also subsequently paid a second instalment in the same amount. In 2008 the Builder experienced financial difficulties and in January 2009 it became subject to a formal debt workout procedure under the Korean Corporate Restructuring Promotion Law 2007. In April 2009 the Buyers wrote to the Respondent demanding repayment under the Bonds of the instalments that had been paid to the Builder under the Contracts. The Respondent rejected the Buyers demands on the basis that, on the true construction of the Bonds, the Respondent had not undertaken to guarantee payment of refunds arising under Article XII.3 of the Contracts. In the High Court the judge ruled in favour of the Buyers construction of the Bonds and entered summary judgment against the Respondent. On appeal, the majority of the Court of Appeal (Thorpe and Patten LJJ) overturned the High Courts ruling and entered summary judgment in favour of the Respondent. Sir Simon Tuckey gave a dissenting judgment in which he explained his reasons for preferring the High Court judges construction of the Bonds. The Supreme Court granted the Appellants leave to appeal to the Supreme Court. The Supreme Court unanimously allows the appeal and restores the order of the High Court. Lord Clarke gives the sole judgment, with which Lords Phillips, Mance, Kerr and Wilson agree. The issue at the heart of this appeal is whether, on the true construction of paragraph 3 of the Bonds, the Buyers are entitled to payment from the Respondent in respect of refunds that they are entitled to from the Builder under Article XII.3 of the Contracts [6]. It was common ground that everything depends upon the true construction of the Bonds and that the terms and meaning of the Contracts are only relevant to the extent that they inform the true construction of the Bonds [7],[10]. Under paragraph 3 of the Bonds the Respondent promised to pay the Buyers all such sums due to you under the Contract. The question is therefore what was meant by such sums. On this point, neither Article X.5 nor Article X.8 was intended to set out all the circumstances in which the refund guarantee should operate [37]. The Buyers said that the expression covered the pre delivery instalments referred to in the first line of paragraph 3 in other words, the phrase referred to all pre delivery instalments paid by the Buyers. The Respondent, on the other hand, contended that the expression such sums was limited to the sums that were referred to in paragraph 2 of the Bonds. Since paragraph 2 did not include any reference to the Buyers rights under Article XII.3 of the Contracts to repayment upon the Builders insolvency, the Respondent was under no obligation to make any payment to the Buyers in the present case. On the face of it, the correct approach to the construction of the Bonds is not in dispute. The cases show that the ultimate aim of interpreting a provision in a contract, especially a commercial contract, is to determine what the parties meant by the language used. This process involves ascertaining what a reasonable person would have understood the parties to have meant. A reasonable person, for these purposes, is one who has all the background knowledge that would reasonably have been available to the parties in the situation in which they were at the time of the contract [14]. The issue between the parties is the role to be played by considerations of business common sense in determining what the parties meant [15]. Where the parties have used unambiguous language, the court must apply it [23]. However if there are two possible constructions, it is generally appropriate to adopt the interpretation that is most consistent with business common sense and to reject the other [21], [29]. It is not necessary to conclude that a particular construction would produce an absurd or irrational result before proceeding to have regard to the commercial purpose of the agreement [43]. In the present case, since the language of paragraph 3 is capable of two meanings, it is appropriate for the court to have regard to considerations of commercial commonsense [40]. Although the Buyers are unable to provide any very good reason why paragraph 2 was included in the Bonds [34], a construction of paragraph 3 which excluded the Builders insolvency from the situations that trigger the Respondents obligation to refund advance payments made by the Buyers would make no commercial sense [41]. Accordingly, of the two arguable constructions of paragraph 3 of the Bonds, the Buyers construction is to be preferred because it is consistent with the commercial purpose of the Bonds in a way that the Respondents construction is not [45].
This appeal concerns the question of whether article 8 of the European Convention on Human Rights (article 8) requires UK courts to consider the proportionality of evicting an occupier from his home in claims for possession by local authorities and, if so, whether the demoted tenancy regime in the Housing Acts 1985 and 1996 (the 1985 Act and 1996 Act respectively) can properly be interpreted so as to comply with the requirements of article 8. Most residential occupiers of local authority properties are secure tenants under Part IV of the 1985 Act who cannot be evicted other than pursuant to the grounds in section 84 of the 1985 Act. The Anti Social Behaviour Act 2003 Act gave the courts power, however, to remove this security of tenure by making a demotion order. A demoted tenancy will last for a year and then revert to being a secure tenancy, unless within that year the landlord brings possession proceedings under section 143D of the 1996 Act effectively requesting a court to end the demoted tenancy. Section 143D(2) provides that the court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed. Under sections 143E and 143F of the 1996 Act, before issuing possession proceedings against a demoted tenant, the landlord must serve a notice informing the tenant, inter alia, of its decisions (with reasons why) to seek possession and, if so requested by the tenant, must carry out a review of its decision. The Appellant, Cleveland Pinnock, is a demoted tenant. He contests a possession order made against him under section 143D. Mr Pinnock has lived in a property owned by the Respondent local authority, Manchester City Council (the Council), for over 30 years with his partner, Ms Walker, and, from time to time, with all or some of their five children. The demotion order was made on the basis of a number of incidents of serious anti social behaviour caused by all members of Mr Pinnocks family (other than Mr Pinnock himself) at or near the property. A day before the effective lapse of the demoted tenancy, the Council served a notice under section 143E seeking possession of the property and citing further incidents of anti social behaviour by Mr Pinnocks sons which had occurred after the demotion order. A review under section 143F effectively upheld the Councils possession notice. The Council then issued a claim for possession in the Manchester County Court. Following a two day hearing, the court granted an order for possession of the property. Mr Pinnock appealed to the Court of Appeal, who dismissed his appeal. Mr Pinnock then appealed to the Supreme Court. Mr Pinnocks main contention is that the possession order violates his right to respect for his home under article 8 as it is disproportionate. In view of the previous line of the House of Lords authorities, both the Manchester County Court and the Court of Appeal rejected Mr Pinnocks article 8 arguments on the basis that it was not open to them to review the Councils decision on the ground that it was disproportionate. Approaching the matter on a domestic law basis, both courts concluded that the Councils decision to seek possession was rational. In a judgment of the Court delivered by Lord Neuberger, the Supreme Court unanimously dismissed the appeal (but for different reasons from those of the County Court and the Court of Appeal). The Court identified four issues of increasing specificity facing the court in this appeal [21]: (1) whether the European Convention on Human Rights (the Convention) requires domestic courts to consider the proportionality of evicting a person from his home before making an order for possession; (2) if so, the general implications of this conclusion in practice for claims for possession; (3) the implications of this conclusion on the compatibility of the statutory demoted tenancy regime with the Convention; and (4) the application of conclusions (1) (3) above to the facts of Mr Pinnocks appeal. In light of the clear and constant line of jurisprudence of the European Court of Human Rights, the Court departed from the previous line of the House of Lords authorities and concluded that a court, which is asked by a local authority to make an order for possession of a persons home, must have the power to assess the proportionality of making the order and, in making that assessment, to resolve any factual disputes between the parties [49], [74]. The Court emphasised that this conclusion relates to possession claims by local authorities and is not intended to bear on cases where the person seeking possession is a private landlord, which issue will have to be determined when it arises [50]. The Court noted that the appeal involved a comparatively rare type of possession claim, a claim against a demoted tenant. Nevertheless, the Court was able to make certain general points [61] [64]: (1) article 8 only comes into play where a persons home is involved; (2) as a general rule, the proportionality of seeking possession will only need to be considered if the point is raised by the occupier concerned; (3) any article 8 defence should initially be considered summarily; (4) even where an outright order for possession is valid under domestic law, article 8 may justify granting an extended period for possession, suspending any possession order or refusing an order altogether; (5) the conclusion that the court must have the ability to consider the article 8 proportionality of making a possession order may require certain statutory and procedural provisions to be revisited; and (6) article 8 proportionality is more likely to be relevant in respect of occupiers who are vulnerable, due to either a mental or a physical disability. The Court went on to conclude that it was possible to read and give effect to section 143D(2) in a way that would permit the court to review the proportionality of a landlords decision to seek possession and, if necessary, to make its own assessment of facts in dispute. In particular, he concluded that, by virtue of section 7(1) of the Human Rights Act, County Court judges have the necessary jurisdiction to carry out the article 8 proportionality review [77] [80]. It therefore followed that the demoted tenancy regime is compatible with the Convention [104]. Given the above conclusions, the Court went on to consider whether it was proportionate to evict Mr Pinnock and his family from the property in light of their article 8 Convention rights. Having regard to the undisputed evidence of three serious offences committed by Mr Pinnocks sons in, or in the vicinity of, the property during the year when the demotion order was in force, the Court concluded that the possession order against Mr Pinnock was indeed proportionate and should be upheld [127] [132].
This is an application by the Attorney General for Northern Ireland under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 (the 1998 Act). Paragraph 34 provides that the Attorney General may refer to the Supreme Court any devolution issue which is not the subject of proceedings. A devolution issue includes a question whether a purported exercise of a function by a Northern Ireland Department is or would be invalid by reason of section 24 of the 1998 Act. section 24(1)(a) provides that a Department of Northern Ireland has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with any of the rights guaranteed by the European Convention on Human Rights (the ECHR). By the Welfare Reform (Northern Ireland) Order 2015 (Commencement no. 8 and Transitional and Transitory Provisions) Order 2017, the Secretary of State commenced a number of universal credit provisions for claims on or after 27 September 2017 where the claimant resides in an area known as no. 1 relevant districts. Although it is for the Secretary of State to appoint the dates for commencement, he does so by a legislative technique which requires action by the Northern Ireland Department for Communities (part of the Northern Ireland Executive). The 2017 Order defines the no. 1 relevant districts as the postcodes specified in the table in the List of the no. 1 Relevant Districts. It is the Department for Communities which must issue such lists. The same holds true of a second order made by the Secretary of State relating to no. 3 relevant districts and no. 2 relevant districts. The basis for the Attorney Generals reference is his assertion that the universal credit provisions in question breach Article 1 Protocol 1, Articles 8, 14 and 12 of the ECHR and are therefore invalid per section 24 of the Northern Ireland Act 1998. The Attorney General submits that the provision of lists by the Department for Communities is necessary in order to give effect to the Secretary of States commencement orders and thus constitutes an act, per section 24 of the 1998 Act, which is incompatible with the ECHR and invalid. It is for this reason that the Attorney General submits that the publication of lists by the Department for Communities raises a devolution issue under Schedule 10 of the 1998 Act. The Department for Communities refutes this, contending that the provisions under challenge concentrated the power to make welfare provision in the office of the Secretary of State. The Department for Communities submits that its role in issuing the lists amounts to nothing more than providing administrative support to the Secretary of State, and that the lists have legal effects solely by reason of the act of the Secretary of State, not the act of the Department. The publication of lists is not, therefore, an act raising a devolution issue under section 24 of the 1998 Act. The Supreme Court unanimously refuses to accept the Attorney Generals application to refer this issue to the court under paragraph 34 of Schedule 10 to the 1998 Act. Lord Kerr, with whom Lady Hale and Lord Reed agree, gives the judgment. The Court notes that acts by the Secretary of State for Northern Ireland or by departments in Westminster do not come within the purview of section 24 of the 1998 Act. For a devolution issue to arise, it must be shown that an act or function has been carried out by a Northern Ireland minister or department, and that the act in question is invalid by reason of section 24 [6]. The prohibitions in section 24 are disjunctive: it is forbidden to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with the ECHR. Acts ancillary to the enactment of subordinate legislation are thus in principle capable of being caught by section 24. It is therefore possible, on a theoretical or technical level, to consider that the Departments provision of the postcode lists in question amounts to such an ancillary act [11]. There are, however, two reasons that the provision of such lists cannot be said to raise a devolution issue. First, as the Court held in AGNIs reference [2019] UKSC 1, where the Attorney General sought to refer to this court a devolution issue that arose in parallel pending proceedings, it was considered not to be appropriate to accept the reference. The same holds true here: a challenge to the universal credit provisions will come before this court shortly on appeal from a decision of the English Court of Appeal. It will be open to the Attorney General to apply to intervene in that appeal [12]. Second, the fundamental underpinning of the Attorney Generals case is that the introduction of universal credit in Northern Ireland by act of the Secretary of State is incompatible with the ECHR. It is not that the Departments act in identifying the areas where universal credit is to be introduced that is incompatible. The publication of the lists itself is not an act sufficient to give rise to an incompatibility with the ECHR. For a devolution issue under Schedule 10 to arise, it must be shown that the departmental act under challenge is capable of being incompatible with the ECHR. Because the publication of lists is not in itself capable of giving rise to an incompatibility, it is not appropriate to accept a reference under paragraph 34 [13 14].
Nottingham City Council, the appellant, is the licensing authority for houses in multiple occupation (HMOs) in its area under Part 2 of the Housing Act 2004 (2004 Act). This appeal concerns two HMOs, 44, Rothesay Avenue and 50, Bute Avenue which are owned by the second respondent, Trevor Parr Associates Ltd. The first respondent, Dominic Parr, is the managing director of the second respondent and the manager of the two HMOs. The 2004 Act requires HMOs to be licensed by the local housing authority. The local housing authority can grant the application under section 64 of the 2004 Act if it is satisfied that, among other requirements, the house is reasonably suitable for occupation by not more than the maximum number of households or persons [specified in the application or decided by the authority] or that it can be made so suitable by the imposition of conditions under section 67 [of the 2004 Act]. The appellant issued guidance on the operation of the licensing system, which provides that the minimum space provision in the case of bedrooms in single occupation in HMOs is eight square metres, although a degree of flexibility is sometimes possible if other features are present. 44, Rothesay Avenue and 50, Bute Avenue are both used for letting to students and each has an attic bedroom with an area of useable living space below eight square metres. In each case, the appellant granted an HMO licence which imposed a condition prohibiting the use of the attic bedroom for sleeping. The respondents appealed to the First tier Tribunal against the imposition of the conditions. The First tier Tribunal at separate hearings deleted the conditions imposed by the appellant. In the case of 44, Rothesay Avenue it substituted a condition that the attic bedroom may only be used for sleeping accommodation by a full time student who resides in the bedroom for a maximum of ten months in each year. The appellant appealed both decisions to the Upper Tribunal, which dismissed the appeals and also directed that the substituted condition be included in the HMO licence for 50, Bute Avenue. The appellant then appealed to the Court of Appeal, which upheld the decision of the Upper Tribunal and included further conditions in both HMO licences that the communal space be kept available for communal living only and that no bedrooms be let to persons other than full time students. The appellant appealed to the Supreme Court contending that the power to impose conditions under sections 64 and 67 of the 2004 Act cannot be used to limit the class of persons for whom the HMO is suitable, and that the conditions imposed by the First tier Tribunal, Upper Tribunal and the Court of Appeal are irrational and unenforceable. The Supreme Court unanimously dismisses the appeal, subject to varying the conditions to delete the requirement of occupation for a maximum of ten months in each year. Lord Lloyd Jones gives the sole judgment with which the other Justices agree. Section 64(3)(a) of the 2004 Act indicates that the purpose of the imposition of conditions is to make a house reasonably suitable for occupation by not more than the maximum number of households or persons specified in the application or decided by the housing authority. Section 67(1)(a) provides that a licence may include such conditions as the local housing authority considers appropriate for regulating all or any of the management, use and occupation of the house concerned, and section 67(2) sets out a non exhaustive list of permitted conditions including conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it [18]. These words in their natural meaning are sufficiently wide to include the conditions imposed by the Tribunals and the Court of Appeal [18]. Such a reading is also consistent with the object and purpose of the 2004 Act. Elsewhere in Part 2 of the 2004 Act, the manner of occupation and characteristics of occupants are considered relevant in contexts connected with HMOs and housing standards generally [20]. The guidance in respect of the 2004 Act also supports the view that the manner of occupation of a room and the type of occupant may have a bearing on the suitability of a particular room for a particular use [23]. The Court does not consider that the conditions in issue introduce an exception for a category of persons or a defined set of circumstances [24]. Furthermore, they do not permit occupation at a lower standard [25]. It is therefore appropriate to have regard to the proposed mode of occupation in considering the suitability of accommodation in an HMO [26]. In particular, account should be taken of the proposed mode of occupation where it is likely to influence the quality of the accommodation made available to the occupant. However, this does not permit the application of lower standards than would otherwise be applicable [26]. Thus, the power to impose conditions under sections 64 and 67 of the 2004 Act can be used to limit the class of persons for whom the HMO is suitable [27]. The Court agrees with the Court of Appeal that the conditions imposed by the Tribunals were deficient in that they failed to require any part of the HMO to be available for communal living and did not require the bedrooms other than the attic bedrooms to be let to students. That deficiency was, however, cured by the further conditions introduced by the Court of Appeal [33]. The condition limiting the occupation to persons engaged in full time education is rational [35] and enforceable [37]. The Court considers, however, that the requirement limiting occupation to ten months in each year is irrational [36]. Therefore, subject to the deletion of the requirement of occupation for a maximum of ten months in each year, the conditions imposed by the Tribunals and the Court of Appeal in each case, considered cumulatively, were entirely lawful. Accordingly, the Supreme Court varies the conditions to delete the requirement of occupation for a maximum of ten months in each year but otherwise dismisses the appeal [38].
This appeal concerns the permitted uses of a retail store in Streatham in the London Borough of Lambeth. Planning permission was granted by the Secretary of State in 1985, but the use was limited by condition to sale of DIY goods and other specified categories, not including food. The permitted categories were extended by later consents (under section 73 of the Town and Country Planning Act 1990 (the 1990 Act)). The most recent was in 2014, which is in issue in this case. In that permission, the proposed new wording for the permission included: The conditions in the 2014 permission did not refer to the restriction on the sale of food goods, or to conditions in the previous permission from 2010. The second respondent (Aberdeen Asset Management) sought a certificate from the appellant Council determining that the lawful use of the store extended to sales of unlimited categories of goods including food. A certificate to that effect was refused by the Council, but granted by a planning inspector on appeal, on the basis that no condition was imposed on the 2014 permission to restrict the nature of the retail use to specific uses. This was upheld by the lower courts. The Council, as the local planning authority, appeals to this court. The Supreme Court unanimously allows the appeal. The certificate should be amended to exclude uses within the scope of the Proposed wording in the decision notice. Lord Carnwath gives the lead judgment. Section 73 of the 1990 Act envisages two situations: either (a) the grant of a new permission unconditionally or subject to revised conditions, or (b) refusal of permission, leaving the existing permission in place with its conditions unchanged. It does not say what is to happen if the authority wishes to change some conditions but leave others in place. Government guidance indicating that to assist with clarity planning decisions under section 73 should also repeat the relevant conditions from the original planning permission was given as advice, rather than as a statement about the legal position [13]. Whatever the legal character of the document in question, the starting point for interpretation is to find the natural and ordinary meaning of the words there used, viewed in their particular context and in the light of common sense [19]. The 2014 permission needs to be seen through the eyes of a reasonable reader, who is assumed to start by taking the document at face value [28]. The wording of the operative part of the grant are clear and unambiguous. The Council approves an application for the variation of condition as set out below, which is followed by precise and accurate descriptions of the relevant development, of the condition to be varied, and of the permission under which it was imposed. That is followed by statements of the Original wording, then of the Proposed wording, the latter stating in terms that the store is to be used for the sale of non food goods only. The obvious and only natural interpretation of those parts of the document is that the Council was approving what was applied for: the variation of one condition from the original wording to the proposed wording, in effect substituting one for the other. There is nothing to indicate an intention to discharge the condition altogether, or to remove the restriction on the sale of food goods [29]. If section 73 gave no power to grant a permission in the form described, the logical consequence would be that there was no valid grant at all, not that there was a valid grant free from the proposed condition. There is no issue now as to the validity of the grant as such, and all parties agree there was a valid permission for something. That being the common position, the document must be taken as it is [32]. It has been normal and accepted usage to describe section 73 as conferring power to vary or amend a condition, so the reasonable reader would not see any difficulty in giving effect to the 2014 permission in the manner authorised by the section i.e. as the grant of a new permission subject to the condition as varied. The absence of a reason for the condition does not affect its validity [33]. There are some internal inconsistencies in the second part of the notice, but reading the document as a whole, the second part can be given a sensible meaning without undue distortion. It is explanatory of and supplementary to the first part. The permitted development incorporating the amended condition is acceptable but only subject to the other conditions set out. In other words, they are additional conditions [34 35]. This appeal is not concerned with the status of the conditions in the 2010 permission, but the courts provisional view is that the 2010 conditions were not incorporated into the new permission, but continued to have effect under the 2010 permission, so far as they are consistent with anything in the new grant. The conditions remain valid and binding because there was nothing in the new permission to affect their continued operation [37 38]. Nothing in the present judgment is intended to detract from the advice, contained in the decision by Sullivan J in R (Reid) v Secretary of State for Transport [2002] EWHC 2174 (Admin), at paragraph 59, that it is highly desirable that all the conditions to which the new planning permission will be subject should be restated in the new permission and not left to a process of cross referencing [42].
Ms Rhuppiah, a Tanzanian national, entered the UK in 1997 with leave to reside here as a student for three months. The Home Secretary granted further leave to her to reside in the UK as a student on 12 occasions, but some of these applications for leave were made after the previous leave had expired. While they were studying at the same college, Ms Rhuppiah met Ms Charles, who suffers from ulcerative colitis, a gravely debilitating condition. They have resided together since 2001. Ms Rhuppiah cooks food suitable for Ms Charless medical condition and accompanies her to Bristol, to hospital and in effect everywhere. Instead of paying her for looking after her in these respects, Ms Charles provides her with largely free board and lodging. Ms Rhuppiah, a Seventh Day Adventist, cares for Ms Charles out of friendship, faith and habit. Were Ms Rhuppiah to leave the UK, Ms Charless health would be compromised, her life turned upside down, and she would have to turn to the state for care. After her final grant of leave expired in November 2009, Ms Rhuppiah twice failed to secure indefinite leave to remain in the UK, first because her residence here over the past ten years had not always been lawful, and second because she applied on the wrong form and by the time she reapplied the Immigration Rules, HC395 (the rules) had changed, fatally for her reapplication. The Home Secretary was then obliged to determine whether her reapplication could nevertheless succeed outside the rules, on the basis of her right to respect for the private life she had established in the UK, including her friendship with Ms Charles, under article 8 of the European Convention on Human Rights. The Home Secretarys determination on this basis was also negative. Ms Rhuppiah challenged the Home Secretarys decision at the First tier Tribunal (FTT). Under section 117B(5) of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), little weight should be given to an applicants private life if it was established in the UK at a time when his or her immigration status was precarious. The FTT dismissed Ms Rhuppiahs challenge on the basis that this provision applied to her; and that, besides, she was not financially independent (another consideration, which section 117B(3) of the 2002 Act required the Home Secretary to weigh against her right to respect for her private life) as she depended on support from her father and from Ms Charles. Ms Rhuppiah appealed unsuccessfully to the Upper Tribunal and the Court of Appeal. Her appeal has now become academic, because she has now lived continuously in the UK for long enough to secure leave to remain by a different route. The Supreme Court nevertheless heard the appeal, because of the public importance of providing a definitive interpretation of the word precarious in section 117B(5). The Supreme Court unanimously allows the appeal. Lord Wilson gives the only judgment. Section 6 of the Human Rights Act 1998 requires the Home Secretary to act compatibly with the rights contained in the European Convention on Human Rights, including the right under article 8 to respect for private and family life. Removing an applicant from the UK may interfere with this right. Therefore, if the Home Secretary refuses a persons application for leave to remain in the UK under the rules, he must nevertheless consider whether to grant leave on the basis of their right under article 8. Article 8 gives him a limited discretion to determine whether the interference is justified [4]. Section 117A(2) of the 2002 Act prompts decision makers exercising this discretion to have regard to the public interest considerations in section 117B, which include: the maintenance of effective immigration controls; that persons in the UK can speak English and are financially independent; and that little weight should be given to a private life established by a person at a time when they are in the UK unlawfully or when the persons immigration status is precarious [20 21]. A persons immigration status in the UK can therefore be precarious even when he or she is lawfully present here [24]. Equally, the concept of little weight and the wording of section 117A(2) give decision makers a limited degree of flexibility to uphold an article 8 claim on the basis of the applicants right to respect for private life, even if it was established when the applicants immigration status was precarious [49]. The Court of Appeal accepted that Ms Rhuppiahs own immigration status was precarious, but suggested that some immigrants could have an immigration status which was not precarious even though they did not have indefinite leave to remain in the UK. It added that the concept of precariousness might fall to be applied having regard to the persons overall circumstances. The Supreme Court holds that the application of the concept of precariousness does not depend on such a subtle evaluation of the overall circumstances as suggested by the Court of Appeal [25, 42]. The European Court of Human Rights (ECtHR) has approached the concept of precariousness in the context of the right to family life by asking whether the family life was created at a time when the parties knew that the immigration status of one of them made its persistence in the host state precarious from the outset [28]. Therefore, it distinguished the situation of an applicant who (though not present unlawfully) was no more than tolerated by the host state while it determined her various applications for residence permits and consequential appeals, from that of settled migrants who had formally been granted a right of residence. The Supreme Court has previously addressed this ECtHR decision, suggesting that family life will be precarious if created when an applicant was here unlawfully or had only a temporary right to remain in the UK [34 45]. Section 117B imports the concept of precariousness from the ECtHR case law. But the section only applies to an applicants private life [37]. In a case not cited to the Court of Appeal, the Upper Tribunal previously held that a persons immigration status was precarious for the purpose of section 117B(5) if his continued presence in the UK would be dependent upon a further grant of leave [38 39]. The Supreme Court now approves this decision. Everyone who, not being a UK citizen, is present in the UK and who has leave to reside here other than to do so indefinitely, has a precarious immigration status for the purposes of section 117B(5) [44]. This bright line interpretation is consistent with the ECtHR and Supreme Courts language in the decisions referred to above [43]. The FTT nonetheless erred in concluding that Ms Rhuppiah was not financially independent within the meaning of section 117B(3). The Supreme Court holds that financially independent in section 117B(3) means not financially dependent upon the state. It therefore allows Ms Rhuppiahs appeal [52 58].
Broome Park is a substantial country estate near Canterbury. It originally included the Mansion House, Elham House and surrounding lands. In 1967, Elham House and adjoining land were conveyed away. This is the alleged dominant tenement of the disputed easement. The seller retained the rest of Broome Park, including the Mansion House (jointly the Park). This is the alleged servient tenement. In or before 1979, the Park was acquired by Gulf Investments Ltd (Gulf Investments) to develop a timeshare and leisure complex. The key features were the creation of: (i) timeshare apartments in the Mansion House; (ii) a communal club house for the timeshare owners and other paying members of the public in the Mansion House, including restaurant, TV, billiards and gymnasium facilities; and (iii) sporting and recreational facilities in the surrounding grounds, including a full golf course, outdoor heated swimming pool, tennis and squash courts and formal gardens. The individual purchasers of timeshare units formed the Broome Park Owners Club (BPOC). They were indirectly granted free use of the communal and leisure facilities within the lower part of the Mansion House and its surrounding grounds by a lease to another Gulf company in August 1980. Following the initial success of the development, Elham House was re acquired in November 1980. Planning permission was obtained for the conversion and construction of 26 timeshare apartments using a freehold structure Regency Villas. By a transfer dated 11 November 1981, Gulf Investments transferred Elham House to an associated company (the 1981 Transfer). A further transfer took place on the following day, to a trustee for intended timeshare owners. Elham House was then held for the benefit of the Regency Villas Owners Club (RVOC) members. The grant of rights in the 1981 Transfer (the Facilities Grant) stated: the Transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis courts, the ground and basement floors of the sporting or recreational facilities on the Transferors adjoining estate. Most of the relevant sporting and recreational facilities had been constructed by then. Subsequently, there was a reduction in the number of available facilities and a concern that they would deteriorate without contributions from the RVOC members. The swimming pool fell into disuse and was filled in by 2000. Other facilities, such as the putting green, croquet lawn, jacuzzi and roller skating rink, were closed and the riding stables were demolished. Further, from time to time, beginning in about 1983, the RVOC made voluntary contributions towards the cost of the facilities. When agreement about contributions broke down, the new owners of Broome Park denied that the RVOC timeshare owners had any enforceable rights as to the leisure complex, so that they could be charged for their use. The First Respondent (as freehold owner of Elham House) and the other Respondents (as individual RVOC timeshare members) claimed a declaration that they were entitled, under an easement, to free use of all the sporting and recreational facilities from time to time provided within the Park. They also sought an injunction restraining interference with their use of the facilities, and the return of sums paid for the use of the facilities since 2009, as damages for breach of the easement or by way of restitution. At trial before HHJ Purle QC, the Respondents succeeded in their claims, save recovery of payments for use of the facilities before 2012. In the Court of Appeal, they were again successful on the main issue about whether the Facilities Grant amounted to a grant of an easement. The judges decision was only reversed on matters of detail, such as the Respondents rights regarding a new swimming pool constructed in the basement of the Mansion House, which reduced the amount due. The Appellants succeeded in part in their counterclaim for quantum meruit. In the Supreme Court, the Appellants sought dismissal of all the claims and the Respondents sought restoration of the judges original order. A majority of the Supreme Court dismisses the appeal and allows the cross appeal. The judges consequential orders, including his order for monetary compensation for the payment under protest for use of the facilities in and after 2012, are restored. Lord Briggs, with whom Lady Hale, Lord Kerr and Lord Sumption agree, gives the main judgment. Lord Carnwath gives a dissenting judgment. Three main conclusions follow from the contextual factors relevant to construing the Facilities Grant [22 24]. First, the intention was to confer a property right in the form of an easement [25]. Secondly, the grant was of a single comprehensive right to use a complex of facilities as they evolved, not fixed in 1981 [26 29]. Thirdly, there is no express requirement for contribution to the operational costs [30]. The effect of In re Ellenborough Park [1956] Ch 131 (CA) the leading case on easements on the central question in this appeal, namely whether the Facilities Grant could not amount to an easement because it conferred recreational and sporting rights, is fully discussed [44 57]. Lord Briggs concludes that Ellenborough Park establishes that such a grant can amount to an easement [48, 52 53, 59]. Overall, the majority accepts that the grant of an easement in this case was novel, given the greater running costs and operational responsibilities, and that there are factors which tell against broad recognition of rights over such facilities as easements [75] [80]. Ultimately, however, the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement, provided always that they satisfy the four well settled conditions for easements [81]. Where the actual or intended use of the dominant tenement is itself recreational, as is the norm for holiday timeshare developments, the accommodation condition will generally be satisfied by a recreational easement [81]. Regarding the fourth condition whether the right is capable of forming the subject matter of a grant other objections based on an ouster (the concern in this case being step in rights of the dominant owner) and mere passivity (the issue being alleged positive duties on the servient owner) are not accepted by the majority, because of concurrent factual findings by the courts below [60 73]. On the cross appeal, the majority holds that the Court of Appeal was wrong to limit the grant of rights to the facilities in existence at the time of the grant in 1981 [85, 92]. The sporting and recreational facilities referred to in the Facilities Grant were bound to change significantly over time [26, 86] and the new indoor swimming pool was, once complete, a facility made within the complex [88 92]. Lord Carnwaths dissenting judgment: Lord Carnwath considers that the intended enjoyment of the rights granted in this case, particularly as to the golf course and swimming pool, cannot be achieved without the active participation of the owner of those facilities in their provision, maintenance and management [95]. Thus, Lord Carnwath would not extend the Ellenborough Park principle to a full leisure complex. He considers that such an extension of the law on easements is wrong in principle and not supported by case law [96].
These appeals concern the treatment for rating purposes of ATMs situated in supermarkets or shops owned and operated by the retailers. There are two main issues: (1) whether the sites of the ATMs are to be properly identified as separate hereditaments (see below for definition) from the stores; and, if so (2) who was in rateable occupation of the separate hereditaments? The appeals in this case are designated as lead appeals. Appeals relating to some 10,000 other sites have been stayed pending the final decision in these cases. The appellants in this case are the valuation officers; the respondents are the retailers, banks, and ATM operators. In each of these appeals the ATMs are installed and operated not directly by the retailers but under contractual arrangements with related banking companies. The ATMs fall into four categories: 1. External ATMs (e.g. Sainsburys Worcester store): these ATMs are found in the external walls of stores and can be used 24 hours a day. They are chained to the floor of the cash room of the stores and are connected to the stores electricity supplies. The money dispensed is owned by the bank but kept in the cash room of the stores. 2. Internal ATMs (e.g. some Tesco stores): these ATMs are available only for use within the stores and can only be accessed within the stores opening hours. For all other practical purposes the arrangement are the same as with the external ATMs. 3. Convenience store ATMs (e.g. Londis Harefield store): these ATMs are similar to other external ATMs. However, because of the much reduced floor space of these stores, the maintenance and loading of the ATMs lead to greater interference with the stores workings. 4. Moveable ATMs (the only example on appeal being at Tescos Nottingham store): these ATMs can be unbolted from the floor and moved without difficulty. Hereditament is defined in s.115(1) of the General Rate Act 1967 (the 1967 Act) as property which is or may become liable to a rate, being a unit of such property which is, or would fall to be, shown as a separate item on the valuation list. This is adopted into the current statutory scheme by s.64(1) of the Local Government Finance Act 1988 (the 1988 Act). As to the definition of rateable occupation, s.65(2) of the 1988 Act provides that whether a hereditament is occupied, and who is the occupier are to be determined by reference to the rules which would have applied under the 1967 Act. By virtue of the Valuation for Rating (Plant and Machinery) (England) Regulations 2000 (SI 2000/540) (the 2000 Regulations), an ATM must be assumed to have no effect on the rateable value of the hereditament on which it is sited. At first instance the Valuation Tribunal for England held that all of the ATMs were situated on hereditaments which were rateably occupied separately from the host stores. This was overturned by the Upper Tribunal (Lands Chamber) which held that that, save for the moveable ATM, all of the ATMs were situated on hereditaments separate from the host stores; but that only the external ATMs were rateably occupied separately from the host stores. This was overturned on appeal by the Court of Appeal which held that none of the ATMs were rateably occupied separately from the host stores. The Supreme Court unanimously dismisses the appeals. Lord Carnwath gives the sole judgment, with which the other Justices agree. There are two aspects to the argument of whether the sites of the ATMs are capable of identification as separate hereditaments [28]. First, with regard to the 2000 Regulations, the statutory assumption that certain plant (e.g. ATMs) has no effect on rateable value applies only to the valuation of the hereditament. It does not follow that this applies to the logically prior question of whether there is a hereditament that needs to be valued [33]. Second, previous case law establishes that a hereditament is a self contained piece of property (i.e. property all parts of which are physically accessible from all other parts, without having to go onto other property) [34]. The Upper Tribunal was entitled to find that there should be no difficulty in defining the boundaries of fixed ATMs so as to satisfy the geographical test for self containment [35], with the exception is the moveable ATM, which, as they found, had the qualities of impermanence and mobility [39]. The second question is whether the retailers or the banks were in rateable occupation of the ATMs [40]. A lodging house, which is treated as a single hereditament in the occupation of the landlord, is a useful example. While the landlords control of the premises does not interfere with, and indeed supports, the enjoyment by the lodgers of their own rooms for their own purposes, there is still only one hereditament in the occupation of the landlord [46]. On the facts the Upper Tribunal held that the retailers' retained occupation of the ATM sites but had conferred on the banks rights which substantially restricted the retailers use of those sites. This was because the presence of the ATMs furthered the retailers general business purposes and the operation of the ATMs provides the retailers with an income [48]. Both the parties derived a direct benefit from the use of the sites for the same purpose and shared the economic fruits of the activity for which the space was used. This is sufficient to support the conclusion that the internal ATMs remained in the occupation of the retailers [49]. External ATMs are to be treated the same as internal ones. That an external ATMs is available to a wider marker at all times, and is physically separated from the other facilities in the stores, does not detract from the Upper Tribunals finding that the retailers remained in occupation of the ATMs, nor that they were any less a part of the retailers businesses. The difference is no greater than the difference between an internal or external ATM in a bank building. Thus, the external ATMs remained in the rateable occupation of the retailers [52].
This case concerns the scope for justifying direct discrimination on the ground of age and in particular a mandatory retirement age contained within a partnership agreement. The case was heard alongside Homer (Appellant) v Chief Constable of West Yorkshire Police (Respondent) [2012] UKSC 15 which concerned the scope of indirect discrimination on the ground of age. Mr Seldon joined the Respondent law firm in 1971 and was made an equity partner in 1972. In 2005 he and the other partners in the firm agreed and adopted a partnership deed which (like earlier deeds) provided that, subject to the partners agreement to the contrary, partners who attain the age of 65 had to retire from the firm by the end of the following December. Mr Seldon reached the age of 65 on 15 January 2006. Realising that he would need to continue working beyond this point, he asked the other partners to extend his tenure. The proposals were rejected on the basis of there being no sufficient business need. The partners did however offer Mr Seldon an ex gratia payment of 30,000. The Employment Equality (Age) Regulations 2006, SI 2006/1031 (the Age Regulations) came into force in October 2006. Mr Seldon informed the partners that he was considering his rights under the Age Regulations (which have since been repealed but substantially re enacted under the Equality Act 2010). The partners then withdrew their offer of an ex gratia payment. Mr Seldon ceased to be a partner in the firm on 31 December 2006. He issued proceedings in March 2007 alleging, under the Age Regulations, that his forced retirement was an act of direct age discrimination and that the withdrawal of the offer of an ex gratia payment was an act of victimisation. Regulation 17 of the Age Regulations provides that it is unlawful for a firm to discriminate against partners by, amongst other things, expelling them from that position. The definition of discrimination is contained in regulation 3 which provides that a person (A) discriminates against another person (B) if on grounds of Bs age, A treats B less favourably than he treats or would treat other persons and A cannot show the treatment to be a proportionate means of achieving a legitimate aim. There was no dispute that the mandatory retirement age treated Mr Seldon less favourably than other partners and that this was necessarily on account of his age. The key issue was whether that treatment could be justified. The Age Regulations were intended to transpose Council Directive 2000/78/EC on equal treatment in occupation and employment into UK law. Article 2(1)(a) of the Directive states that direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation. Article 2(1)(b) provides that indirect discrimination occurs where an apparently neutral provision, criterion or practice puts people of a particular age at a particular disadvantage, unless the provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. In relation to age discrimination, however, article 6(1) allows member states to provide that differences of treatment on grounds of age shall not constitute discrimination if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary. Regulation 3 does not distinguish between direct and indirect discrimination for the purpose of justification. The Employment Tribunal accepted that the retirement policy pursued three legitimate aims: (i) giving associates an opportunity of partnership within a reasonable time, and thereby an incentive to remain with the firm; (ii) facilitating workforce planning by knowing when vacancies were to be expected; (iii) limiting the need to expel underperforming partners, thus contributing to a congenial and supportive culture within the firm. The Tribunal found that the mandatory retirement age of 65 was a proportionate means of achieving the three legitimate aims and therefore rejected the discrimination claim (but upheld the victimisation claim). The Employment Appeal Tribunal held that the Employment Tribunal had failed to consider whether the aims could have been met by a retirement age other than 65 and remitted the case on that point alone. The Court of Appeal dismissed Mr Seldons appeal. He then appealed to the Supreme Court asserting that: first, it is wrong to elide the tests for justification in direct and indirect discrimination cases and that the aims pursued by the firm were not legitimate in the context of the former; and secondly, that the treatment had to be justified not only in respect of the firm generally but in its particular application to Mr Seldon. The Supreme Court unanimously dismisses the appeal and remits the case to the Employment Tribunal on the outstanding issue. Lady Hale gives the lead judgment with which the other members of the Court agree. Lord Hope adds some further comments. As to the first issue, the Employment Tribunal did not have the benefit of the later decisions in the European Court of Justice/Court of Justice of the European Union and in the High Court. That jurisprudence shows that a distinction must be drawn between the tests for justification in direct and indirect discrimination and regulation 3 should be read accordingly [51]. The aims set out in article 6(1) of the Directive are directed primarily to the Member States and are of a public interest nature, which is distinguishable from purely individual reasons particular to the employers situation, such as cost reduction or improving competitiveness [50(2)]. The Age Regulations had given employers and partnerships the flexibility to choose which aims to pursue, provided that (i) they can count as legitimate objectives of a public interest nature within the meaning of the Directive, (ii) they are consistent with the social policy aims of the state, and (iii) the means used are both appropriate to the aim and reasonably necessary to achieve it [55]. It is necessary to identify the actual objective being pursued, although it may not have been articulated or even realised when the measure was first adopted [59, 60]]. Once an aim has been identified, it has to be asked whether it is legitimate in the particular circumstances of the employment or partnership concerned [61]. Finally, the means chosen must be both appropriate and necessary to achieve that aim [62]. Two broad categories of aim had been accepted as legitimate by the European Court: inter generational fairness and preserving the dignity of older workers [56, 57]. The three aims accepted by the Employment Tribunal in this case were consistent with article 6(1) of the Directive. Staff retention and workforce planning were directly related to the social policy aim of sharing out professional employment opportunities fairly between the generations. Limiting the need to expel partners by way of performance management was directly related to the dignity aim [67] (despite some reservations expressed about this aim generally [57, 58]). As to the second issue, the wording of regulation 3 suggests that the focus is on whether the treatment of Mr Seldon (B) in particular was justified [63]. However, where it is justified to have a general rule, then the existence of that rule will usually justify the treatment which results from it. [65]. Often, requiring the application of the rule to the individual to be specifically justified would negate the purpose of having a rule in the first place [66]. However, all businesses will now have to give careful consideration to what, if any, mandatory retirement rules can be justified in their particular business [66]. The case is remitted to the Employment Tribunal to consider whether the choice of a mandatory age of 65 was a proportionate means of achieving the legitimate aims of the partnership [68].
The issue arising in the appeal is whether the appellants have satisfied the threshold conditions set out in section 1(6) of the Equal Pay Act 1970 (the Act) in order to bring claims alleging that they are employed under less favourable terms and conditions than certain male employees of the respondent council who do work of equal value. The appellants have to establish that the male employees are in the same employment as they are, notwithstanding the fact that they are employed on different terms and conditions at different establishments from the appellants. The appellants are 251 classroom assistants, support for learning assistants and nursery nurses employed during school term time in the respondents schools under terms contained in a national collective agreement known as the Blue Book. The appellants wish to compare their terms and conditions with those enjoyed by a variety of full time manual workers employed by the respondent, as groundsmen, refuse collectors, refuse drivers and a leisure attendant (the comparators), under a different collective agreement known as the Green Book. The comparators are entitled to a substantial supplement on top of their basic pay, whereas the appellants are not. The issue of whether the appellants are in the same employment as the comparators was determined in a pre hearing review. The Employment Tribunal ruled that they are, because the appellants could show that if the comparators were employed at their establishments they would be employed under broadly similar terms to those under which they are employed at present. The Employment Appeal Tribunal allowed an appeal by the respondent on the ground that the appellants could not show that there was a real possibility that the comparators could be employed in schools to do their existing jobs. The Court of Session held that this was the wrong test, but that the appellants still failed on the evidence to show that if the comparators were to be based at schools they would be employed on Green Book terms and conditions. The appellants appealed to the Supreme Court. The Supreme Court unanimously allows the appeal and restores the decision of the Employment Tribunal permitting the claims to be brought. The tribunal will now proceed to decide whether the appellants work is in fact of equal value to that of the comparators and, if so, whether there is an explanation other than the difference in sex for the difference between their terms and conditions. Lady Hale gives the only judgment. The requirement that claimants and their chosen comparators are in the same employment before a claim can be brought under the Act does not simply mean that they must be employed by the same employer. If they do not work at the same establishment as their comparators, claimants must show that they are both employed at establishments in Great Britain at which common terms and conditions of employment are observed either generally or for employees of the relevant classes (s 1 (6) of the Act). The common terms and conditions are between the comparators terms at different establishments and those on which they are or would be employed at the claimants establishment [12]. It is no answer to say that no such comparators ever would be employed at the same establishment as the claimant, otherwise it would be far too easy for an employer to arrange things so that only men worked in one place and only women in another [13]. The correct hypothesis to consider is the transfer of the comparators to do their present job in a different location [30]. The evidence from the respondents Group Manager of Human Resources confirmed that, although he could not envisage it happening, in the event that the comparators were based in schools then they would retain their Green Book conditions [31]. The Employment Tribunal adopted the correct test and was entitled to find it satisfied on this evidence. It was not necessary to show that it was feasible to co locate the relevant workers. This was an unwarranted gloss on s 1(6) [33] and would defeat the object of the legislation. The fact that of necessity work has to be carried on in different places is no barrier to equalising the terms on which it is done [34]. It is not the function of the same employment test to establish comparability between the jobs done, but simply to weed out those cases in which geography plays a significant part in determining the relevant terms and conditions [35]. This construction of s 1(6) is more consistent with the requirements of European Union law, to which the Act gives effect [36]. Case law of the European Court of Justice has established that for the principle of equal pay to have direct effect, the difference in treatment must be attributable to a single source which is capable of putting it right [40]. That is clearly the case here. If s 1(6) were to operate as a barrier to a comparison which was required by EU law to give effect to the fundamental principle of equal treatment it would be the courts duty to disapply it. However, s 1(6) sets a low threshold which does not operate as a barrier to the comparison proposed in this case [42].
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.
On 4 January 2011, Mrs Sylvie Beghal passed through East Midlands Airport with her three children on returning from visiting her husband in Paris, a French national in custody on terrorist offences. She was stopped by police and, although not formally detained, arrested or suspected of being a terrorist, was told they needed to speak to her to establish whether she was involved in terrorist acts. The police did this exercising the power under Paragraph 2 of Schedule 7 of the Terrorism Act 2000, which deals with questioning individuals at ports or borders for the purpose of determining whether he appears to be [or to have been concerned in the commission, preparation or instigation of acts of terrorism]. No reasonable suspicion of a past or future offence is needed. Under other provisions of Schedule 7, officers may also: require the production of documents carried; copy and retain material; and, search and detain (currently for a maximum of 6 hours) individuals. By way of sanction, Paragraph 18 of Schedule 7 of the Terrorism Act 2000 makes it a criminal offence, on pain of fine and/or imprisonment, wilfully to fail to comply with such requirements. A Code of Practice exists for officers exercising these powers. Mrs Beghal sent her two eldest children to the arrivals gate, asked for a lawyer (with whom she spoke on the phone) and requested and was granted an opportunity to pray. She was searched and in the absence of the lawyer was asked, amongst other questions, about her relationship with her husband, her reasons for travel, where she had stayed and whether she had travelled beyond France. She refused to answer most of the questions and was charged with the offence of wilful failure to comply with the requirement to answer questions. The questions and reporting her for failure to answer them lasted under half an hour. She later pleaded guilty to this offence and her sentence was a conditional discharge. Mrs Beghal brought proceedings arguing that the Schedule 7 powers breached her Article 5 (right to liberty), Article 6 (privilege against self incrimination) and Article 8 (right to respect for private and family life) rights under the European Convention on Human Rights (ECHR). The Divisional Court dismissed her claims. The Supreme Court dismisses the appeal by a majority of 4 1 (Lord Kerr dissenting). Lord Hughes delivers the lead judgment. Lord Neuberger and Lord Dyson give a joint concurring opinion. Powers of questioning and search and inspecting, copying and retaining data on electronic devices Article 8 ECHR Questioning and search under compulsion undoubtedly constitutes an interference with Article 8(1) ECHR [28]. As to justification under Article 8(2) ECHR, it is in accordance with the law as there are sufficient safeguards and controls against overbroad and arbitrary use of this power [45]. These include, for example, the restrictions on the location, duration and type of questioning and search, the requirement to permit consultation with a solicitor, the availability of judicial review and the supervision of the Independent Reviewer of terrorism legislation [43]. The fact that questioning does not require objective grounds for suspicion does not by itself mean that the safeguards are inadequate [44]. The power is also proportionate: (i) questioning and search at ports is rationally connected to the proper objective of Schedule 7, which is preventing and detecting terrorism [47]; (ii) to require reasonable suspicion before using the power would not achieve anything like the same utility in fighting the threat of terrorism [49]; and, (iii) it also represents a fair balance between the rights of individuals and the interests of community at large; the level of intrusion is comparatively light and not beyond the reasonable expectations of international travellers and the importance of preventing and detecting acts of terrorism can scarcely be overstated [48, 51]. There is also no substantial risk of these powers being used on a racially discriminatory basis. The statistics show that the exercise of Schedule 7 powers is proportionate to the terrorist population, considering the sources of the terrorist threat, that travels through UK ports [50]. Retaining electronic data is a considerable intrusion into the private life of an individual [57]. It may well be that retention longer than an initial inspection for a reasonable period can only be justified if there exist objectively established grounds for suspicion [58]. This power, however, was not used in the case of Mrs Beghal. Power to detain Article 5 ECHR The power to detain for six hours falls within Article 5(1)(b) ECHR and involves a greater level of intrusion than questioning and search [52]. Nonetheless, restricting an individuals movement in order to exercise the questioning and search power, and for no more than is necessary, will either not be a deprivation of liberty or will be justified [54]. The better view is that detention beyond what is necessary to complete the process of questioning and search for example, for six hours can only be justified by objectively demonstrated suspicion [55]. However, in this case any deprivation of Mrs Beghals liberty was for no longer than was necessary for the completion of the process [56]. Privilege against self incrimination Article 6 ECHR Schedule 7 excludes privilege against self incrimination as it is by necessary inference abrogated by the words of the statute [64]. Moreover, the risk of prosecution based on answers to Schedule 7 is not a real and appreciable one; in practice section 78 of the Police and Criminal Evidence Act 1984 (PACE) would inevitably render such evidence inadmissible. Article 6 ECHR would also compel the same result [65 66]. As port questioning and search is not part of a criminal investigation, the individual is not a person charged for the purposes of Article 6 ECHR so that Article 6 ECHR has no application [69]. Lord Kerr (dissenting) would find that the Schedule 7 powers are incompatible with Articles 5, 6 and 8 ECHR: (i) they are not in accordance with the law. The potential for arbitrary or discriminatory exercise of the powers is apparent from the Code of Practice [103 104]. Moreover, a crucial element of this requirement is to make it possible to examine whether the powers have been used proportionately. Where the Schedule 7 powers can be exercised without any suspicion whatsoever there is simply no material to judge whether they are being used proportionately [106]; (ii) the powers are greater than necessary to accomplish the aims; there is no evidence that such suspicion less powers are the only way to achieve the goal of combatting terrorism and no reasoned justification has been given for granting examining officers such powers [122, 124]; (iii) a proper balance has not been struck between the rights of the individual and the interests of the community [126 127]. Lord Kerr further finds that the requirement to answer questions breaches an individuals common law privilege against self incrimination and is incompatible with Article 6 ECHR. There is, inescapably, a real and appreciable risk of prosecution if answers to the questions posed prove to be self incriminating [115].
This case concerns the scope of the duty of confidentiality owed by Her Majestys Revenue and Customs (HMRC) in respect of the affairs of taxpayers. This duty is set out in statutory form in Section 18(1) of the Commissioners for Revenue and Customs Act 2005 (the 2005 Act), which provides that HMRC officials may not disclose taxpayer information. Section 18(2) of the 2005 Act sets out a number of situations in which this duty may be overridden. These include where a disclosure is made for the purposes of a function of HMRC (s.18(2)(a)(i)) and function is given a broad and general definition in various sections. There are also a number of more specific situations set out in ss.18(2)(b) to (j), such as for the purposes of civil or criminal proceedings. Mr Patrick McKenna is the Founder and Chief Executive Officer of Ingenious Media Holdings plc (Ingenious Media), an investment and advisory group specialising in the media and entertainment industries. It promoted film and investment schemes involving film production partnerships which utilised certain tax relief previously available [8]. On 14 June 2012 the Permanent Secretary for tax in HMRC, Mr David Hartnett, gave an off the record interview to two financial journalists from The Times about tax avoidance [9]. On 21 June 2012 The Times published two articles on film schemes and tax avoidance which identified Mr McKenna as one of two main providers of film investment schemes in the UK and informed readers that such schemes had enabled investors to avoid at least 5 million in tax a figure that had been provided by Mr Hartnett. The articles also contained a direct quote from the interview with Mr Hartnett about Mr McKenna, which was attributed to a senior Revenue official [10 11]. Mr McKenna and Ingenious Media brought a claim for judicial review of the decision of HMRC, acting by way of Mr Hartnett, to disclose information which concerned them to The Times journalists. The court at first instance held that it should not approach the disclosures as if it were the primary decision maker. It found that the disclosures made by Mr Hartnett were not irrational, were made for a legitimate purpose and were proportional [14]. This approach was upheld by the Court of Appeal [15]. Ingenious Media Holdings appealed to the Supreme Court. The Supreme Court unanimously allows Ingenious Medias appeal. Lord Toulson, with whom the other Justices agree, gives the lead judgment. Judicial review is not the only course of action available to challenge the conduct of a public body. Public bodies are not immune from the ordinary application of the common law, including the law of confidentiality [28]. This case should be approached from the perspective of the common law of confidentiality [17, 28]. It is a well established principle of the law of confidentiality that where information of a personal or confidential nature is obtained or received in the exercise of a legal power or in furtherance of a public duty, the recipient will in general owe a duty to the person from whom the information was received or it relates. The tax affairs of individual taxpayers are matters between HMRC and the taxpayer, and confidentiality is a vital element in the working of the system [17]. However, this principle may be overridden by explicit statutory provisions [18]. By taking together ss.5, 9 and 51(2) of the 2005 Act, HMRCs interpretation of the phrase disclosure made for the purpose of a function of HMRC in s.18(2)(a)(i), would permit disclosure of anything which in the view of HMRC is necessary, expedient, incidental, conducive to or in connection with the exercise of the functions of the collection and management of revenue. However, if this interpretation was correct the provisions permitting disclosure in the specific circumstances in s.18(2)(b) to (j) would be superfluous. Furthermore, such a construction would run counter to the principle of legality, by which fundamental rights cannot be overridden by general or ambiguous words [19]. In enacting the 2005 Act, Parliament cannot have envisaged that it was authorising HMRC officials such a wide ranging discretion to disclose confidential information about the affairs of individual taxpayers, limited only by the rationality test applied in judicial review claims, as this would significantly undermine the primary duty of confidentiality in s.18(1) [22]. The correct interpretation of Section 18(2)(a)(i) is that it permits disclosure to the extent reasonably necessary for HMRC to fulfil its primary function [23]. It is for the court to decide whether there has been a breach of confidentiality by applying the law to its own judgment of the facts. The opinion of the individual who has disclosed the information is not irrelevant, but the court will decide what weight it should be given [26]. This principle applies whether the duty of confidentiality is contractual or where, as in the current case, the person or body owing a duty of confidentiality holds a public office, is a public body, or is performing a public function, subject to any contrary statutory provision [27, 29]. An impermissible disclosure of confidential information is no less impermissible because the information is passed on in confidence, or off the record [31]. The information supplied by Mr Hartnett to the journalists about Mr McKenna and Ingenious Media was confidential in nature, in respect of which HMRC owed a duty of confidentiality under s.18(1) of the 2005 Act [32]. The fact that Mr Hartnett did not anticipate his comments being reported is not a justification for making them [35]. The desire to foster good relations with the media and to publicise HMRCs view about tax avoidance schemes and speculation that the journalists may have subsequently informed Mr Hartnett about other tax avoidance schemes do not provide sufficient justification for the disclosures either [34]. The disclosures by Mr Hartnett were not therefore justified under s.18(2)(a) of the 2005 Act [36].
The appellant was in the care of the respondent local authority from the ages of seven to eighteen. The local authority placed her into foster care with Mr and Mrs A between March 1985 and March 1986, and with Mr and Mrs B between October 1987 and February 1988. She was physically and emotionally abused by Mrs A, and sexually abused by Mr B. The case proceeded on the basis that the local authority were not negligent in the selection or supervision of the foster parents, but that they were nevertheless liable for the abuse perpetrated by her foster carers. She claimed that the local authority were liable for the abuse, either on the basis that they were in breach of a non delegable duty, or on the basis that they were vicariously liable for the wrongdoing of the foster parents. Her claim was dismissed by the High Court and the Court of Appeal. The Supreme Court allows the appeal by a majority of 4 1, finding the local authority vicariously liable for the abuse committed by the foster parents, but rejecting the argument that the local authority were liable on the basis of a non delegable duty. Lord Reed gives the lead judgment, with which Lady Hale, Lord Kerr and Lord Clarke agree. Lord Hughes gives a dissenting judgment. Non delegable duty of care A local authority are not under a non delegable duty to ensure that reasonable care is taken for the safety of children in care while they are in the care and control of foster parents. Such a proposition is too broad, and fixes local authorities with too demanding a responsibility [49]. The following reasons are given: The Child Care Act 1980 (the 1980 Act) permits a local authority to arrange for children in care to spend time staying with their parents or grandparents, or other relatives or friends. Imposing a strict liability on local authorities for the lack of care of those relatives or friends would risk creating a conflict between the local authoritys duty, under section 18(1) of the 1980 Act, to give first consideration to the need to safeguard and promote the welfare of the child, and their interests in avoiding exposure to such liability. It would also risk creating a form of state insurance in situations where the local authority place the child with the childs own parents [45]. The 1980 Act required the local authority to discharge the duty to provide accommodation and maintenance for a child, including by placing the child with foster parents. This implies that, although the local authority have numerous duties towards the child, their duty is not to provide the child with day to day care, but rather to arrange for, and monitor, the performance of that function by the foster parents [46 47]. The Secretary of State makes regulations under section 22 of the 1980 Act imposing duties on local authorities in relation to the boarding out of children. The implication of section 22 is that the local authoritys continuing responsibility for the child is discharged by boarding out the child in accordance with those regulations, including by prior approval of the household, and subsequent inspection, supervision and removal. The statutory regime does not impose any responsibility for the day to day care of the child [48]. Vicarious liability Applying the principles set out in Cox v Ministry of Justice [2016] UKSC 10 on the imposition of vicarious liability, the local authority are vicariously liable for the acts of the foster parents in the present case for the following reasons: Integration and business activity: The local authority carried out the recruitment, selection and training of foster parents, paid their expenses, and supervised the fostering. In those circumstances, the foster parents were not carrying on an independent business of their own, and it is impossible to draw a sharp distinction between the activity of the local authority and that of the foster parents. Thus the abuse committed by the foster parents against the claimant was committed by the foster parents in the course of an activity carried on for the benefit of the local authority [59 60]. Creation of risk: The placement of children with foster parents creates a relationship of authority and trust between the foster parents and children in circumstances where close control cannot be exercised by the local authority. This renders the children particularly vulnerable to abuse [61]. Control: The local authority exercised a significant degree of control over the foster parents: it exercised powers of approval, inspection, supervision and removal [62]. Micro management, or a high degree of control, are not necessary for the imposition of vicarious liability [65]. Ability to pay damages: Most foster parents have insufficient means to meet a substantial award of damages, whilst local authorities can more easily compensate the victims of abuse [63]. There was no evidence to suggest that imposing vicarious liability would discourage local authorities from placing children in care with foster parents, and encourage them instead to place them in residential homes, at much greater cost. [68]. In response to the concerns raised by Lord Hughes: (1) The approach adopted would not have resulted in the imposition of vicarious liability if the appellant had been placed with her own parents. (2) This decision is concerned only with the legislation and practice that was in force at the relevant time, not with the current regime. (3) The courts care not to impose unduly exacting standards in the context of family life applies equally to life in foster families [71 73]. Lord Hughes gives a dissenting judgment on the vicarious liability issue. He considers that the majoritys approach would extend vicarious liability to family and friend placements under the current statutory regime, and consequently inhibit local authorities practice of making such placements. Finally, he considers that it may result in undesirable litigation of family activity in the courts [87 90].
This appeal arises out of a case where a professional gambler, Mr Ivey, sues a casino, Crockfords, to recover his winnings at Punto Banco. Mr Ivey claims for his winnings in circumstances where Crockfords refused to pay out because it believed Mr Ivey cheated. The appeal raises questions about the meaning of the concept of cheating at gambling and the relevance of dishonesty to that concept. Punto Banco is a variant of Baccarat and is not normally a game of skill. The different odds applied to certain bets mean that the casino enjoys a small advantage, taken over all the play. In Punto Banco at Crockfords it was 1.24% if the player wins and 1.06% if the banker wins. Edge sorting is possible when the manufacturing process of playing cards causes tiny differences to appear on the edges of the cards so that, for example, the edge of one long side is marginally different from the edge of the other. It is possible for a sharp eyed person sitting close to a card shoe (the holder that dispenses the playing cards) to see which long edge it is. This information becomes useful only if things can be arranged so that the cards which the gambler is most interested in are all presented with one long edge facing the table, whilst all the less interesting cards present the other long edge. Then the gambler knows which kind of card is next out of the shoe. Using edge sorting to identify high value cards in Punto Banco will give the player a long term edge of about 6.5% over the house if played perfectly accurately. On 20 and 21 August 2012, Mr Ivey and his associate, Ms Sun, played Punto Banco at Crockfords. Mr Ivey openly admits to the use of edge sorting during this game. Mr Ivey asked the senior croupier that the same shoe of cards be re used if he indicated to him that he won. Ms Sun (affecting superstition) asked the croupier to turn the cards in a particular manner if she indicated they were good or not good. The croupier had no idea of the significance of what she was being asked to do. In consequence, the long edge of the not good cards were oriented in a different way from the long edge of the good cards. This procedure was followed for each game of Punto Banco until the shoe was finished. Mr Ivey then indicated that he had won with that shoe and so the cards were reshuffled. The use of a machine shuffler ensured that the cards were shuffled without rotating any of the cards. Mr Ivey could now identify high value cards and his betting accuracy increased sharply. Mr Iveys total winnings over the two days was 7.7m. Nine days after play, Crockfords told Mr Ivey they would not pay his winnings because the game had been compromised. The High Court held that Mr Iveys use of edge sorting was cheating. The Court of Appeal upheld this finding. The Supreme Court unanimously dismisses the appeal. Lord Hughes gives the judgment, with which Lord Neuberger, Lady Hale, Lord Kerr and Lord Thomas agree. It was common ground that the parties contract for betting contained an implied term that neither of them will cheat. [35] It would be unwise to attempt a definition of cheating. Its essentials normally involve a deliberate act designed to gain an advantage in the play which is objectively improper given the parameters and rules of the game in question. What amounts to cheating is a jury question. Dishonesty is not a concept that would bring clarity or certainty to a jurys assessment of whether certain behaviour is or is not cheating. [47 48] It is an essential element of Punto Banco that it is a game of pure chance. Mr Ivey staged a carefully planned and executed sting. If he had secretly gained access to the shoe of cards and personally re arranged them that would be considered cheating. He accomplished the same results by directing the actions of the croupier and tricking her into thinking that what she did was irrelevant. Mr Iveys actions were positive steps to fix the deck and therefore constituted cheating. [50] Dishonesty is included in the definition of some but not all acquisitive criminal offences. [52] R v Ghosh [1982] EWCA Crim 2 introduced a two stage test for dishonesty for a jury to apply, with a subjective second leg. Firstly, the jury must ask whether in its judgment the conduct complained of was dishonest by the lay objective standards of ordinary reasonable and honest people. If the answer is no, that disposes of the case in favour of the defendant. But if the answer is yes, it must ask, secondly, whether the defendant must have realised that ordinary honest people would so regard his behaviour as dishonest, and he is to be convicted only if the answer to that second question is yes. However, the second leg of the rule adopted in Ghosh has serious problems. The principal objection is that the less a defendants standards conform to societys expectations, the less likely they are to be held criminally responsible for their behaviour. The law should not excuse those who make a mistake about contemporary standards of honesty, a purpose of the criminal law is to set acceptable standards of behaviour. [54, 57 59] In civil actions the law has settled on an objective test of dishonesty. There can be no logical or principled basis for the meaning of dishonesty to differ according to whether it arises in a civil action or a criminal prosecution. [62 63] The second leg of the test propounded in Ghosh does not correctly represent the law and directions based upon it ought no longer to be given. The test of dishonesty is that used in civil actions. The fact finding tribunal must ascertain (subjectively) the actual state of the individuals knowledge or belief as to the facts and then determine whether his conduct was honest or dishonest by the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest. [74] If cheating at gambling required an additional legal element of dishonesty, it would be satisfied in this case. [75]
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]
The Public Processions (Northern Ireland) Act 1998 (the 1998 Act) placed responsibility for the management of parades in Northern Ireland in the hands of an independent statutory body called the Parades Commission. The Act placed a duty on anyone proposing to organise a public procession to give advance notice to the police and made it a criminal offence to organise, or take part in, a public procession of which notification had not been given. On 3 December 2012 Belfast City Council decided to stop flying the Union flag over Belfast City Hall every day. The flag was to be flown on certain designated days only. The decision sparked a wave of protests by loyalists which continued for some months and became known as the flags protests. The protesters marched from a meeting point in East Belfast to Belfast City Hall in the centre of the city and back again. The route took the parade through the Short Strand, which is perceived to be a nationalist area, and where violence, disorder and sectarian abuse were directed at residents. No notification was made under the 1998 Act that a parade was due to take place. Initially, in order to prevent potential disorder, the police had taken the decision not to permit the protesters to enter Belfast City Centre. But between 6 and 8 December 2012 this decision was changed, as it was considered there was a need to try to facilitate some form of protest in order to ease community tension. Therefore, when the parades began on 8 December 2012 the protesters were permitted to enter the City Centre and pass through the Short Strand area. The weekly parades continued until March 2013, during which time the police took no action to stop them. The police made a number of public announcements to the effect that it had no power to stop a parade that had not been notified under the 1998 Act. They also tried, unsuccessfully, to refer the matter to the Parades Commission. The appellant, a resident of Short Strand, issued judicial review proceedings challenging the failure of the police to take action to prevent the parades from taking place. The High Court found that the police had failed to appreciate the extent of its powers to stop an un notified parade, which had the effect of undermining the 1998 Act. The Court of Appeal allowed the Chief Constables appeal. DB appealed to the Supreme Court. The Supreme Court unanimously allows DBs appeal and declares that the Police Service of Northern Ireland misconstrued their legal powers to stop parades passing through or adjacent to the Short Strand area. Lord Kerr gives the judgment, with which the other Justices agree. The flag protests presented the Police Service of Northern Ireland with enormous, almost impossible difficulties [1]. There can be no suggestion that they failed to treat them with sufficient seriousness. This case is not about the sincerity and authenticity of those efforts, it is about whether, corporately, the police were sufficiently aware of the full range and scope of the powers available to them [3]. The police have a duty, under the general law, to prevent the commission of offences. Participating in an un notified parade is a criminal offence under the 1998 Act and as such the police therefore had the power to prevent the parades. The police failed properly to appreciate this, instead believing that they only had a power to prevent the commission of general public order offences [10]. The police were not required to form a judgment as to whether a parade should take place, but they were required to decide whether the parade was taking place legally. Failure to notify a proposed parade strikes at the heart of the effective functioning of the Parades Commission and therefore at the successful implementation of the 1998 Act. This Act represented a paradigm shift away from the old system where police were drawn into the controversial role of deciding which parades should be permitted to take place and under what conditions they should be allowed to proceed [63]. The police failed to recognise that the integrity of the system depended on the enforcement of the requirement to notify an intention to hold a parade [64]. It is the police, not the Parades Commission, who have the responsibility for preventing un notified parades from taking place [45]. The police mistakenly believed that they were obliged by article 11 of the European Convention on Human Rights (freedom of assembly and association) to facilitate peaceful protests, even though they thought the protests were technically illegal. To the contrary, they had an inescapable duty to prevent, where possible, what were plainly illegal parades from taking place and to protect those whose rights under article 8 of the European Convention (respect for private life) were in peril of being infringed, subject to operational constraints. In general, a decision to disperse a parade or protest which has not been lawfully notified will not infringe article 11. There was no warrant for allowing article 11 considerations to determine how the parades should be policed [60 62]. The High Court was therefore right to conclude that the police laboured under a misapprehension as to the extent of their powers [70]. The polices policy did not, however, have the intention or the effect of undermining the 1998 Act [66]. The police had an operational discretion in deciding how to respond to the parades. Discussion of what action might have been taken had the police properly understood the limits of their powers is unlikely to was unhelpful [74]. Difficulties in making policing decisions should not be underestimated, especially since these frequently require to be made in fraught circumstances [76]. The absence of a more proactive approach was not caused by police inertia, but by a concatenation of unfortunate circumstances, including misunderstandings about the powers available to them [77].
Wolverhampton City Council (the Council), in its capacity as the local planning authority, granted planning permission for four blocks of student accommodation in proximity to a site used for storage of liquefied petroleum gas (LPG). Three of the four blocks of student accommodation had been completed, but work on the fourth had not commenced. Concerned that the LPG storage facility in the vicinity constituted a danger to human life, the Health and Safety Executive (the HSE), a statutory, non departmental public body, applied for an order to revoke or modify the planning permission under section 97 of the Town and Country Planning Act 1990 (the Act). In refusing the application, the Council took into account its liability to pay compensation under section 107 of the Act were it to revoke planning permission in respect of all four blocks, but it did not consider whether the application should be granted only in respect of the fourth block. The HSE brought judicial review proceedings challenging, among other things, the Councils decision not to revoke or modify the planning permission. The High Court refused that part of the claim. The Court of Appeal allowed the HSEs appeal, holding that it was irrational for the Council to fail to consider whether to exercise its powers under section 97 so as to prevent the construction of the fourth block alone. The Councils decision was therefore unlawful and it was ordered to reconsider the matter. However, the Court of Appeal held by a majority (Pill LJ dissenting) that a decision under section 97 of the Act was to be taken not in isolation but within the statutory framework of the Act which imposed a liability to pay compensation if an order was made under the section. Accordingly, the Council, when reconsidering the matter, would be entitled to take into account its liability to pay compensation under section 107 of the Act. The HSE appealed to the Supreme Court against this part of the decision of the Court of Appeal: the issue being whether it is always open to a local planning authority, in considering under section 97 of the Act whether it appears to be expedient to revoke or modify a permission to develop land, to have regard to the compensation that it would or might have to pay under section 107. The Supreme Court unanimously dismisses the HSEs appeal. Lord Carnwath gives the leading judgment of the Court with which all other Justices agree. In simple terms, the question is whether a public authority, when deciding whether to exercise a discretionary power to achieve a public objective, is entitled to take into account the cost to the public of so doing. As custodian of public funds, the authority not only may, but generally must, have regard to the cost to the public of its actions, at least to the extent of considering in any case whether the cost is proportionate to the aim to be achieved, and taking account of any more economic ways of achieving the same objective [24] [25]. Section 97 of the Act requires no different approach. The section requires the authority to satisfy itself that revocation is expedient, and in so doing to have regard to the development plan and other material considerations. The development plan throws no light on the issue in this case. The word expedient implies no more than that the action should be appropriate in all the circumstances. Where one of those circumstances is a potential liability for compensation, it is hard to see why it should be excluded. Material in ordinary language is the same as relevant. Where the exercise of the power, in the manner envisaged by the statute, will have both planning and financial consequences, there is no obvious reason to treat either as irrelevant [26]. Under section 97, a planning authority has a discretion whether to act, and, if so, how. If it does decide to act, it must bear the financial consequences. Section 97 creates a specific statutory power to buy back a permission previously granted. Cost, or value for money, is naturally relevant to the purchasers consideration [51]. Sufficient consistency is given to the expression material considerations if it is treated as it is elsewhere in administrative law: that is, as meaning considerations material (or relevant) to the exercise of the particular power, in its statutory context and for the purposes for which it was granted. So read, there is no inconsistency between section 97 and other sections such as section 70 [49] [50]. Furthermore, in exercising its choice not to act under section 97, or in choosing between that and other means of achieving its planning objective, the authority is to be guided by what is expedient. No principle of consistency requires that process to be confined to planning considerations, or to exclude cost [52]. The contrary view of Richards J in Alnwick DC v Secretary of State (2000) 79 P & CR 130 was wrong, although the actual decision may be supportable on its own facts [54]. Possible difficulty in assessing precisely the likely level of compensation is no reason for not conducting the exercise, still less for leaving cost considerations out of account altogether [55] [56]. Accordingly, for reasons which essentially follow those of the majority of the Court of Appeal, the HSEs appeal is dismissed [57].
These two appeals concern the claims of two EU nationals to claim benefits in the United Kingdom. Ms Mirga was born in Poland and, having previously lived in the UK with her parents for four years, moved back here in 2004. The benefit rights of people from Poland in the UK were mostly governed by the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) (the A8 Regulations) which were enacted to give effect to the Treaty on Accession 2003 (the Accession Treaty) under which Poland (and seven other countries) joined the EU. After finishing her education in April 2005, she carried out registered work within the meaning of the A8 Regulations for seven months. She then became pregnant and did around three months of unregistered work. Ms Mirga claimed income support in August 2006 under the Income Support (General) Regulations (SI 1987/1967) (the Income Support Regulations) on the grounds of pregnancy. The Secretary of State refused Ms Mirgas application for income support and his decision was upheld by the First tier Tribunal. The Upper Tribunal and then the Court of Appeal affirmed that decision, on the ground that Ms Mirga did not have a right of residence in the UK under the A8 Regulations and therefore was excluded from income support by the Income Support Regulations. Mr Samin was born in Iraq in 1960. In 1992, he and his family were granted asylum in Austria in 1992 and he was granted Austrian citizenship the following year. He then became estranged from his wife and children and came to the UK in December 2005, since when he has lived here alone. Where the A8 Regulations do not apply, the benefit rights of EU nationals in the UK are mostly governed by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (the EEA Regulations), issued pursuant to EU Directive 2004/38/EC (the 2004 Directive). Mr Samin is socially isolated and suffers from poor mental and physical health. Mr Samin occupied private accommodation until 2010, when he applied to Westminster City Council (the Council) for housing under the homelessness provisions of the Housing Act 1996 (the Housing Act). The Council decided that he was a person from abroad who is not eligible for housing assistance within the meaning of section 185(1) of the Housing Act, because he did not have the right of residence in the UK under the EEA Regulations. That decision was affirmed in the Central London County Court, whose decision was in turn upheld by the Court of Appeal. The Supreme Court unanimously dismisses both Ms Mirgas and Mr Samins appeals for reasons set out in a judgment given by Lord Neuberger (with which Lady Hale, Lord Kerr, Lord Clarke and Lord Reed agree). Submissions of the parties The Secretary of State contended that the Court of Appeals decisions were right. At the time she applied for it, Ms Mirga was ineligible for income support because she was a person from abroad, and could not claim to be a worker as she was an A8 national who had not done 12 months employment and thus could not qualify under the A8 Regulations. Even if the A8 Regulations did not apply, the Secretary of State argued, Ms Mirga would not have been a worker under the EEA Regulations as she had not worked for 12 months before claiming income support [36]. In respect of Mr Samin, the Council contended that he was not a worker within the EEA Regulations because he is now incapable of work and had not worked for 12 months in the UK [37]. In response to these contentions, two arguments were raised on behalf of Ms Mirga and Mr Samin. The first argument rested on the Treaty on the Functioning of the European Union (the TFEU). Ms Mirga contended that, given her right to respect for family and private life under article 8 of the European Convention on Human Rights, and given that she had been a worker, albeit not for the requisite period under the A8 Regulations (or the EEA Regulations), she could not be removed from the UK; accordingly, she contended, her right of residence under article 21.1 of TFEU could not lawfully be cut back by restricting her right to income support as the Income Support Regulations purport to do [38, 41]. Mr Samin argued that refusal of housing assistance to him constituted unlawful discrimination contrary to article 18.1 of the TFEU because such assistance would have been accorded to a citizen of the UK or a qualifying member from another member state who was in the same position as Mr Samin [39, 42]. Ms Mirgas alternative argument was that, even if the Income Support Regulations could have the effect for which the Secretary of State contended, it would only be so if it could be shown that providing her with income support would be disproportionate i.e. if it would place an unreasonable burden on the UK social assistance system, and there has been no inquiry into that question [38, 58]. To much the same effect, Mr Samins alternative argument was that the refusal of housing allowance to him could only be justified if it could be shown that the grant of such an allowance would be disproportionate and there had been no inquiry into that question [58]. The first issue: do the domestic Regulations infringe the appellants TFEU rights? The right accorded to Ms Mirga by article 21.1 of TFEU is qualified by the words subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. In the present case, the measures include the Accession Treaty and the 2004 Directive, and hence the A8 Regulations and the EEA Regulations respectively [43]. A significant aim of these measures was to ensure that EU nationals from one member state should not be able to exercise their rights of residence in another member state so as to become an unreasonable burden on the social assistance system. Further, any right of residence after three months can be subject to conditions, and EU nationals can be refused social assistance where appropriate [44]. Whether the Accession Treaty or the 2004 Directive applied, Ms Mirga has not done 12 months work in the UK, and therefore cannot claim to be a worker, and she is not a jobseeker, self employed, a student or self sufficient. Therefore she can be validly denied a right of residence in the UK and can be excluded from social assistance. Article 21.1 of TFEU therefore cannot assist her [45]. The article 18 right claimed by Mr Samin is limited to the scope of the Treaties, which means that it only comes into play where there is discrimination in connection with a right in the TFEU or another EU treaty. Further, the right is without prejudice to any special provisions contained in the Treaties. Therefore, Mr Samins argument fails for the same reasons that Ms Mirgas does [47]. Examination of recent judgments of the Court of Justice of the European Union (CJEU), especially Dano v Jobcenter Leipzig [2015] All ER (EC) 1 and Case C 67/14 Jobcenter Berlin Neukolin v Alimanovic clearly support this conclusion. [48 57] The second issue: the arguments based on lack of proportionality The argument that the determinations of the courts and tribunals below in relation to Ms Mirgas claim and Mr Samins claim were flawed because no consideration was given to the proportionality of refusing each of them social assistance is rejected. The judgments of the CJEU relied on by the appellants do not support the argument [58 66]. On the other hand, the judgment and reasoning in Dano, supported by the judgment in Alimanovic undermine the argument [66, 67, 71]. It is unrealistic to require an individual examination of each particular case, as is recognised by the jurisprudence from the CJEU [68]. Where a national of another member state is not a worker, self employed or a student and had no, or very limited, means of support and no medical insurance, it would undermine the whole thrust of the 2004 Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances [69]. It would also place a substantial burden on a host member state if it had to carry out a proportionality exercise in every case where the right or residence or the right against discrimination was invoked [69]. Even if there is a category of exceptional cases where proportionality would come into play, Mr Samin and Ms Mirga do not fall into it [70].
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].
The issue in this appeal is whether AA falls within the definition of an adopted child in paragraph 352D of the Immigration Rules. AA was born in Somalia on 21 August 1994. Her family were torn apart by events in Somalia and her father was killed in the mid 1990s. AA became separated from her mother and other siblings during the fighting. Around the end of 2002, she went to live with her brother in law, Mohamed. He had a daughter, Fadima and step daughter, Amaani. Mohamed took AA into his family home under the Islamic procedure known as Kafala (described as a process of legal guardianship akin to adoption). In October 2007, Mohamed left Somalia and came to the UK in November 2007. He was granted asylum on 21 July 2008. The three girls, AA, Fadima and Amaani, were left with a maternal aunt in Mogadishu. An application for entry into the UK was made for all three girls. Entry clearance was granted to Fadima and Amaani who came to the UK in January 2010. It was refused for AA who remained in Addis Ababa pending her appeal. Her appeal was heard in the First tier Tribunal (FTT) on 3 September 2010. Exert evidence, accepted by the tribunal, was to the effect that, although adoption as such does not exist under Islamic law, under the legal institution known as Kafala a person may become a protg and a part of the household of an adult; and that this only falls short of a full blown adoption in that such adoptee does not enjoy a right of inheritance under Islamic law. The FTT allowed the appeal both under paragraph 352D and article 8 ECHR (right to respect for private and family life). The Secretary of State appealed. The Upper Tribunal (UT) allowed the Secretary of States appeal in respect of paragraph 352D but confirmed the FTTs decision under article 8. On 2 May 2012, the Court of Appeal confirmed the UTs decision. On 14 May 2012, AA was given entry clearance and she arrived in the UK on 4 June 2012. AA appeals to the Supreme Court in respect of paragraph 352D of the Immigration Rules. The Supreme Court dismisses the appeal. Lord Carnwath gives the lead judgment, with which Lady Hale, Lord Wilson, Lord Reed and Lord Hughes agree. The correct approach to construction of the rules is well settled, as explained by Lord Brown in Mahed v Entry Clearance Officer [2010] 1 WLR 48. Read in accordance with those principles, it is clear that paragraph 352D does not cover AAs case and cannot be rewritten in order to do so [14 15]. Whether or not Kafala could be treated as a form of adoption for other purposes, the definition of adoptive parent in paragraph 6 is more restricted. It extends to de facto adoption only within the limitations laid down by paragraph 309A, which does not cover this case [15 16]. A number of international instruments call for a broad approach to the protection of the interests of children. The best interests principle is now, in appropriate areas of law, recognised both by domestic and international law [17]. However, taking them at their highest, there is no specific obligation covering the position of AA [18]. Subject to the issue of discrimination, there is no international obligation which goes further in practical terms than the protection which has been afforded to AA under human rights law [21]. It appears harsh that under the rules AA is treated less favourably than her adoptive siblings, largely because of the tragic circumstances in which parental responsibility passed to her brother in law, taken with the lack of any functioning legal system allowing for formal adoption in the country from which she comes. However, it is unnecessary to decide in the context of the present appeal whether or not such treatment could give rise to a claim for unlawful discrimination under article 14 ECHR or otherwise. This is because any rights which AA has in that respect would apply equally to her position in this country, regardless of the basis of her admission. In exercising any discretion in relation to the grant or extension of definite leave to remain, the Secretary of State is obliged to act in conformity with the Convention, including article 14. It is not necessary to reinterpret the rules to achieve that result [24].
The issue in this case is whether an employment tribunal has jurisdiction in relation to individuals who are resident in Great Britain and employed by a British company but who travel to and from home to work overseas. The Appellant is a UK company based near Aberdeen, which is one of about 70 subsidiary or associated companies of Halliburton Inc., a US corporation. It supplies tools, services and personnel to the oil industry. Mr Ravat lives in Preston, Lancashire, and is a British citizen. He was employed by the Appellant from April 1990 until May 2006, when he was made redundant. He complains that he was unfairly dismissed. At the time of his dismissal he was working in Libya. The question is whether the employment tribunal has jurisdiction to consider his complaint. Mr Ravats employment documentation described him as a UK commuter. He worked for 28 consecutive days in Libya, followed by 28 consecutive days off at home in Preston. He was job sharing, working back to back with another employee. Some of the Appellants employees were accorded expatriate status, but that was not done in Mr Ravats case because he did not live abroad full time. His travel costs were paid for by the Appellant. The work that Mr Ravat carried out in Libya was for the benefit of a German associated company of Halliburton Inc. His salary was paid in Sterling to a UK bank account, and he paid income tax and national insurance on the PAYE basis. An employment tribunal sitting in Aberdeen held that it did have jurisdiction. That decision was set aside by the Employment Appeal Tribunal. Mr Ravat appealed, and the Inner House of the Court of Session allowed the appeal. The Appellant now appeals to the Supreme Court. The Supreme Court unanimously dismisses the appeal and remits the case to the employment tribunal to deal with the merits of the respondents claim that he was dismissed unfairly. The judgment is given by Lord Hope. Section 94(1) of the Employment Rights Act 1996 sets out the right of the employee not to be unfairly dismissed and section 230(1) sets out the definition of employee. They do not contain any geographical limitation, nor is any such limitation to be found anywhere else in the Act [3]. Yet it is plain that some limitation must be implied: section 94(1) cannot apply to all employment anywhere in the world [4]. In Lawson v Serco Ltd [2006] UKHL 3, Lord Hoffmann identified three categories of employees who would fall within the jurisdiction of the employment tribunal: employees working in Great Britain; peripatetic employees where the employee is based in Great Britain; and, in some exceptional cases, expatriate employees [9 12]. But it would be difficult to fit Mr Ravats case into any of Lord Hoffmanns categories [13]. The problem that it raises must be resolved by applying the relevant guiding principles to the facts described in the employment tribunals judgment [25]. The question in each case is whether section 94(1) applied to the particular case, notwithstanding its foreign elements. It is not for the courts to lay down a series of fixed rules where Parliament has decided not to do so. Their role is rather to give effect to what Parliament may reasonably be taken to have intended by identifying and applying the relevant principles [26]. The starting point is that the employment relationship must have a stronger connection with Great Britain than with the foreign country where the employee works. The general rule is that the place of employment is decisive, but that is not an absolute rule [27]. In some cases, an exception can be made because the connection between Great Britain and the employment relationship is sufficiently strong to enable it to be presumed that, although they were working abroad, Parliament must have intended that section 94(1) should apply to them. It will always be a question of fact and degree as to whether the connection is sufficiently strong to overcome the general rule that the place of employment is decisive. The case of those who are truly expatriate because they not only work but also live outside Great Britain requires an especially strong connection with Great Britain and British employment law before an exception can be made for them [28]. But it does not follow that the connection that must be shown in the case of those who are not truly expatriate, because they are not both working and living overseas, must achieve the high standard that would enable one to say that their case was exceptional. In this case, the fact that the commuter has his home in Great Britain, with all the consequences that flow from this for the terms and conditions of his employment, makes the burden in his case of showing that there was a sufficient connection less onerous. The question of law is whether section 94(1) applies to this particular employment. The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain [29]. In this case, Mr Ravat was working in Libya, for a different Halliburton associated company which was based in Germany, and the decision to dismiss him was taken by an individual based in Cairo. But all the other factors point towards Great Britain as the place with which, in comparison with any other, Mr Ravats employment had the closer connection [30]. The Appellants business was based in Great Britain. It treated Mr Ravat as a commuter, which meant that all the benefits for which he would have been eligible had he been working in Great Britain were preserved for him [31]. Although it was not open to the parties to contract in to the jurisdiction of the employment tribunal, factors such as any assurance that the employer may have given to the employee regarding the applicability of UK employment law, and the way the employment relationship is then handled in practice must play a part in the overall assessment [32]. On being assigned to Libya, Mr Ravat was assured that UK employment law would apply to his contract. The documentation he received reflected this, and in fact matters relating to the termination of his employment were handled by the Appellants human resources department in Aberdeen [33 34]. As the question is ultimately one of degree, considerable respect must be given to the decision of the employment tribunal as the primary fact finder. In the circumstances of this case, section 94(1) must be interpreted as applying to Mr Ravats employment, and the employment tribunal therefore has jurisdiction to hear his claim [35].
On 15 March 2008 the Claimant entered the Respondents premises in Small Heath, Birmingham which include a petrol station and a kiosk where customers pay for their purchases. Having parked his car he entered the kiosk to ask whether he could print some documents from a USB stick. Mr Amjid Khan was behind the kiosk desk, employed by the Respondent to see that petrol pumps and the kiosk were kept in good order and to serve customers. Mr Khan refused the Claimants request in a rude manner, at which the Claimant protested. Mr Khan responded in foul, racist and threatening language and ordered the Claimant to leave. The Claimant returned to his car followed by Mr Khan. Before the Claimant could drive off, Mr Khan opened the passenger door, told the Claimant in threatening words never to return and punched him on the left temple. The Claimant got out and walked round to close the passenger door when Mr Khan subjected him to a serious attack. The Claimant had not done anything which could be considered aggressive or abusive. The Claimant brought proceedings against the Respondent on the basis that it was vicariously liable for the actions of its employee Mr Khan. The trial judge dismissed the claim because he considered that there was an insufficiently close connection between what Mr Khan was employed to do and his tortious conduct in attacking the Claimant for the Respondent to be liable. The Court of Appeal upheld the judges decision. The Claimant appealed, challenging whether the close connection test was the appropriate standard to apply and also arguing that his claim should have succeeded in any event. The Supreme Court unanimously allows the Claimants appeal and holds the Respondent vicariously liable for the actions of its employee, Mr Khan, in attacking the Claimant. Lord Toulson gives the lead judgment. The close connection test has been followed at the highest level [42] and there is nothing wrong with it as such [46]. In the present case, the court has to consider two matters. First, the court must ask what function or field of activities has been entrusted by the employer to the employee (i.e. what was the nature of his job). This is to be viewed broadly [44]. Second, the court must decide whether there was a 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 [45]. Applying that test here, it was Mr Khans job to attend to customers and respond to their inquiries. His conduct in responding to the Claimants request with abuse was inexcusable, but interacting with customers was within the field of activities assigned to him by his employer. What happened thereafter was an unbroken sequence of events. The connection between the field of activities assigned to Mr Khan and his employment did not cease at the moment when he came out from behind the counter and followed the Claimant onto the forecourt. There are two reasons to draw this conclusion. First, it is not correct to regard Mr Khan as having metaphorically taken off his uniform the moment he stepped out from behind the counter he was following up on what he said to the Claimant. Secondly, when Mr Khan followed the Claimant to his car and told him not to come back to the petrol station, that was not something personal between them, but an order to keep away from his employers premises. In giving the order he was purporting to act about his employers business [47]. Mr Khans motive in the attack is irrelevant. It does not matter whether he was motivated by personal racism rather than a desire to benefit his employers business [48]. Lord Dyson agrees with the reasons given by Lord Toulson [57] and emphasises that the close connection test is the correct test to apply [53].
These proceedings concern a child, called DD in the judgment, who was born in 2006 in Romania, to Romanian parents who met while working in England. The family returned to England after the birth. The parents separated in 2007 and DD has lived in England since then in the care of his mother. The father returned to Romania in 2009 but has maintained a significant relationship with his son. He commenced divorce and custody proceedings in Romania in 2007 which, after long delays, culminated in a decision of the Bucharest Court of Appeal in November 2013 that DD should live with his father. The father applied for the recognition and enforcement of this custody order by the English court in February 2014. These proceedings are governed by the Brussels II (Revised) Regulation (BIIR). DD was made a party. In July 2014 a High Court judge refused the fathers application, applying article 23(b) BIIR which provides that a judgment should not be recognised if it was given, except in a case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in which recognition was sought. The Romanian court had not made direct or indirect enquiry of DD regarding his wishes and feelings. The Court of Appeal upheld the judges order. The father sought to pursue a further appeal to the Supreme Court. The Supreme Court considered as a preliminary issue whether it had jurisdiction to hear an appeal against an order for the enforcement of a custody order in proceedings governed by BIIR. The Supreme Court unanimously rules that it does not have jurisdiction to hear the fathers appeal, which must therefore be struck out. Lady Hale gives the only substantive judgment. Under s 40 of the Constitutional Reform Act 2005, appeals to the Supreme Court are subject to provision under any other enactment restricting such an appeal. The question therefore is whether the provisions of BIIR constitute such an enactment or otherwise override the jurisdiction granted to the Supreme Court by s 40 [12]. The application to register a judgment governed by BIIR is intended to be a speedy and essentially administrative process. Either party may appeal the decision under article 33, which is subject to the provision in article 34 that the judgment given on such an appeal may be contested only by the proceedings referred to in the list notified by each member state to the Commission pursuant to article 68. The UK has provided in its list of notifications under article 68 that appeals in England and Wales under article 34 may be brought only by a single further appeal on a point of law to the Court of Appeal [16]. It has been the practice of the UK in several previous European instruments concerned with the free movement of judgments and judicial cooperation to provide for only one tier of further appeal. The purpose of this restriction is to further the intention of these instruments that member states should recognise and enforce each others judgments without too many avenues for challenge [26]. The provisions of BIIR and the notification under article 68 are directly applicable in the UK. Article 34 does not depend for its implementation upon the member states choice of avenue of appeal and in any event the UK did make a notification [37]. It is not necessary for the notification to reflect all appellate rights under UK law: to further the objective of BIIR, article 68 permits member states to make notifications which cut down the routes of appeal which would otherwise be available [38]. It follows that the Supreme Court has no jurisdiction to entertain an appeal in this case and the appeal is struck out.
This appeal concerns the scope of the exceptions to the principle that statements made in the course of without prejudice negotiations are not admissible in evidence (the without prejudice rule). The issue is whether it is permissible to refer to anything written or said in the course of the without prejudice negotiations to help interpret any agreement which results from the negotiations. The appellants, TMT Asia Limited and others, and the respondent, Oceanbulk Shipping & Trading SA, had entered into a number of forward freight agreements. When the appellants failed to pay a sum due under those agreements, the parties entered into settlement negotiations which were expressed to be without prejudice. The negotiations resulted in a written settlement agreement in respect of the sum due. The respondent brought a claim for damages against the appellants alleging breach of a clause of the settlement agreement. In their defence the appellants sought to rely on statements made during the without prejudice negotiations in support of their interpretation of the clause. The respondent contended that reliance on the statements was precluded by the without prejudice rule. The High Court held that the evidence was admissible for the purpose of determining how the terms of the settlement agreement were to be construed notwithstanding the without prejudice rule. The majority of the Court of Appeal (Longmore and Stanley Burnton LJJ), however, allowed Oceanbulks appeal, holding that the evidence was not admissible. The Supreme Court unanimously allowed the appeal. The substantive judgment was given by Lord Clarke, with whom the other Justices agreed. Lord Clarke observed that the without prejudice rule was now very much wider than it had been historically and extended to admissions made with a genuine intention to reach a settlement, including any admissions made to reach a settlement with a different party within the same litigation, and applied whether or not settlement was reached with that party: [19] [29]. The without prejudice rule was an important rule that founded upon the public policy of encouraging litigants to settle their differences, as well as the express or implied agreement of the parties themselves that communications in the course of their negotiations should not be admissible in evidence: [24]. Because of the importance of the without prejudice rule, its boundaries should not be lightly eroded. Nevertheless, the authorities clearly established that resort might be had to without prejudice material by way of exception to the rule where the justice of the case required it: [30] [33]. The central issue in the present case was whether one of the exceptions to the rule should be that facts which (a) are communicated between the parties in the course of without prejudice negotiations, (b) form part of the factual matrix or surrounding circumstances and (c) would, but for the without prejudice rule, be admissible as an aid to construction of a settlement agreement which results from the negotiations should be admissible in evidence by way of exception to the rule (the interpretation exception): [35]. Lord Clarke reached the conclusion that justice clearly demanded that the interpretation exception should be recognised as an exception to the without prejudice rule for two principal reasons: [36] and [46]. Without recourse to the without prejudice material the agreement could not be properly construed in accordance with the well recognised principles identified in Investors Compensations Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 and Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] AC 1101 that objective facts which emerge during negotiations are admissible as part of the factual matrix in order to assist courts to interpret an agreement in accordance with the parties true intentions. The process of interpretation of a settlement agreement should in principle be the same, whether negotiations are without prejudice or not, and permitting recourse to the without prejudice material for this purpose was the only way in which the modern principles of contractual interpretation could be properly respected: [36] [41]. Any other approach would introduce an unprincipled distinction between this class of case and two other exceptions to the without prejudice rule. The first such exception, which has already been accepted, is that resort might be had to without prejudice material in order to resolve the issue whether negotiations had resulted in a concluded compromise agreement. The second such exception (which has not yet been accepted) followed from the first, namely that if a party could have resort to without prejudice material to see whether negotiations had resulted in a concluded settlement agreement, then a party could also rely on such material in order to show that a settlement agreement should be rectified. There was no sensible basis on a which a line could be drawn between admitting without prejudice communications in order to consider a plea of rectification and admitting them as part of the factual matrix relevant to the true construction of a settlement agreement: [42] [45]. Lord Clarke stressed that nothing in the judgment was intended to underplay the importance of the without prejudice rule or to encourage the admission of evidence of pre contractual negotiations beyond that which is admissible in order to explain the factual matrix or surrounding circumstances: [46].
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].
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]).
The appellant was arrested in the United Kingdom in 2017 and charged with one count of conspiracy to commit torture and seven counts of torture, contrary to section 134 of the Criminal Justice Act 1988 (CJA). The charges relate to events in the early stages of the first Liberian civil war in 1990 when an armed group, the National Patriotic Front of Liberia (NPFL), took control of parts of Liberia. Its leader, Charles Taylor, subsequently became President of Liberia in 1997. The point of law raised in the appeal, and certified by the court below, relates to the correct interpretation of the term person acting in an official capacity in section 134(1) of the CJA. The prosecution maintained that at the time and place of the alleged offences, the NPFL was the de facto military government with effective control of the relevant area. Charles Taylor and those acting for and with him, including the appellant, were therefore acting in an official capacity for, and on behalf of, the NPFL. The appellant denied involvement in the offences and asserted that at no time did she act in an official capacity for the NPFL, nor was the NPFL the de facto government authority in the relevant locations. The appellant made an application to dismiss the charges. The judge concluded that section 134 applies not only to entities tolerated by or acting under the authority of a government but also, in situations of armed conflict, to individuals who act in a non private capacity as part of an authority wielding entity. Accordingly, the judge ruled that there was a case to answer on all counts. The appellant appealed to the Court of Appeal, which dismissed the appeal, holding that section 134 CJA is not confined to individuals acting on behalf of a State. It held that section 134 covers any person who acts otherwise than in a private and individual capacity for or on behalf of an organisation or body which exercises or purports to exercise the functions of government over the civilian population, whether in peace time or during armed conflict. The appellant appealed the decision to the Supreme Court. By a majority, the Supreme Court substantially agrees with the conclusion of the Court of Appeal, but because of further evidence from the prosecutions expert produced after the judgment of the Court of Appeal, it allows the appeal to the limited extent of remitting the matter to the judge for further consideration in the light of that further evidence and the judgment of this court. Lord Lloyd Jones gives the majority judgment, with which Lady Hale, Lord Wilson and Lord Hodge agree. Lord Reed delivers a dissenting judgment. Section 134 CJA implements in domestic law certain obligations of the United Kingdom pursuant to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 (UNCAT) [16]. Accordingly, the wording of section 134 CJA must bear the same meaning as in article 1 UNCAT. The principles governing the interpretation of treaties are to be found in articles 31 and 32 of the Vienna Convention on the Law of Treaties 1969 (VCLT) [23]. The ordinary meaning of the words describes a person performing official administrative or governmental functions and provides no suggestion that those functions must be performed on behalf of the government of a State [25]. The object of UNCAT was not to outlaw torture but rather to strengthen the prohibition that already exists in international law [27]. The drafting history indicates that torture committed by public officials for purposes connected with their public functions was considered different in nature from, and inherently more serious than, that inflicted by a private person. The conduct of rebels exercising governmental functions over the civilian population of territory under its control is properly the concern of the international community and falls within this rationale [36]. The appellants suggested reading gives rise to a number of anomalies concerning issues of recognition of States and governments. The offence applies without distinction between recognised and unrecognised States. Similarly, resort to State practice in the recognition or non recognition of governments cannot provide a uniform standard by which the Convention can be applied [56 59]. The majority concludes that a person acting in an official capacity in section 134(1) CJA includes a person who acts or purports to act, otherwise than in a private and individual capacity, for or on behalf of an organisation or body which exercises, in the territory controlled by that organisation or body and in which the relevant conduct occurs, functions normally exercised by governments over their civilian populations. Furthermore, it covers any such person whether acting in peace time or in a situation of armed conflict [76]. The exercise of a governmental function, which is a core requirement, must be distinguished from purely military activity not involving any governmental function [77 78]. It is necessary to look at the reality of any particular situation. The question is whether the entity has established a sufficient degree of control, authority and organisation to become an authority exercising official or quasi official powers, as opposed to a rebel faction or mere military force [79]. In the light of further evidence from the prosecutions expert witness regarding the nature of the NPFLs control over the relevant territory, it is necessary for this matter to be remitted to the judge to reconsider whether there is sufficient evidence to enable a properly directed jury to conclude that the appellant was acting in an official capacity [80]. Lord Reed dissents from the majoritys reasoning and finds the appellants arguments more persuasive [82]. The ordinary meaning of the phrase does not extend to a member of an insurgent group engaged in armed insurrection against the government of the country. The core idea is that the person is acting on behalf of the State [83]. The reference to lawful sanctions later in article 1 supports the view that it is concerned with conduct for which the State bears responsibility [84]. If torture carried out by insurgents in territory under their de facto control falls within the scope of article 1, then article 2(1) UNCAT, which requires each State Party to take measures to prevent acts of torture in any territory under its jurisdiction, imposes an obligation with which States cannot comply, since they cannot take effective measures in relation to territory they do not control [85]. The problem which UNCAT was intended to address was the reluctance of states to investigate and prosecute torture in which their authorities were themselves involved [87 88]. A number of States Parties have adopted a definition in their domestic law based on the understanding that article 1 is confined to situations where the responsibility of state authorities is engaged [90]. In relatively recent times, there appears to have been a development in the CATs interpretation of article 1. Accordingly, even if article 1 might now be interpreted as extending to the actions of non state entities, it does not follow that it should be interpreted in the same way when considering the criminality of actions that took place in 1990 [95 98]. Finally, criminal legislation whose meaning is unclear should be given a restrictive rather than an expansive interpretation [98].
The present appeal is from Guernsey, where there is no equivalent of the 2006 Act. The common laws of England and Guernsey are agreed to be identical in this area. The principal issues are: (1) whether the reasoning in Barker still applies in Guernsey [8], and means that an employers liability insurer covering an employer for only part of the period during which the employer exposed a victim is liable for only a pro rata part of the employers liability to the victim [9], and (2) if Barker does not apply and the position in Guernsey is now the same as in the UK under the 2006 Act, whether such an insurer is liable in the first instance for the whole of the employers liability to the victim, and (3) if so, whether the insurer has pro rata rights to contribution from any other insurer of that employer and/or from the employer in respect of any periods not covered by the insurer [9]. There are parallel issues regarding such an insurers responsibility for defence costs incurred in meeting the victims claim. For 27 years from 1961 to 1988, Mr Carr was negligently and consistently exposed to asbestos dust by his employer, Guernsey Gas Light Co Ltd (GGLCL). He later contracted mesothelioma, from which he died [10]. Before his death, he sued the Respondent (IEG), as successor in title of GGLCL, and recovered compensation of 250,000 damages and interest plus 15,300 towards his costs. IEG also incurred defence costs of 13,151.60 [11]. During the 27 years of exposure GGLCL had two identifiable liability insurances, one with Excess Insurance Co Ltd, for two years from 1978 to 1980, the other with Midland Assurance Ltd, for six years from 1982 to 1988 [12]. The Appellant (Zurich), as successor to Midlands liabilities, maintains that it is only liable to meet 22.08% of IEGs loss and defence costs, based on the fact that Midland only insured GGLCL for 6/27ths of the 27 year period of exposure [14]. The trial judge ordered Zurich to meet 22.08% of the compensation but 100% of defence costs. The Court of Appeal ordered Zurich to pay 100% of both the compensation and defence costs [15]. Zurich appeals in relation to both compensation and defence costs. The Supreme Court unanimously holds that the common law rule of proportionate recovery established in Barker [2006] UKHL 20 continues to apply in Guernsey; it accordingly allows Zurichs appeal in respect of compensation; but it dismisses the appeal in relation to defence costs [35 and 100]. The judges order is therefore restored. The other issues do not in these circumstances arise, but, because of their general importance, the Supreme Court states its opinion on them. By a majority of 4 3 the Court concludes that, had the position in Guernsey been as in the UK under the 2006 Act, Zurich would have been liable in the first instance to meet IEGs claim in respect of the compensation paid by IEG in full, but would have been entitled, in respect of the 21 years not covered by the Midland insurance, to claim pro rata contribution from the Excess and IEG [96]. Lord Mance (with whom Lords Clarke, Carnwath and Hodge agree) gives the leading majority judgment, and Lord Sumption (with whom Lords Neuberger and Reed agree) the leading minority judgment. Lord Hodge gives a separate judgment, as does Lord Neuberger and Lord Reed. (1) All members of the Court agree that the common law rule in Barker remains unaltered in Guernsey where the 2006 Act does not apply. [27 31]. Only 22.08% of IEGs loss is thus attributable to the period of the Midland insurance for which Zurich must answer [35]. (2) The defence costs are different. They would have been incurred in defending the claim whatever the total period of exposure by GGLCL. They were incurred with insurers consent, in defending a claim for damages for injury or disease caused during the Midland insurance period within the meaning of the main insuring clause. Under the rule in Fairchild, as applied in Trigger, mesothelioma is caused in any period in which exposure occurs which materially contributed to the risk of contracting mesothelioma [36 39]. (3) Had Guernsey had an equivalent to the 2006 Act, IEG would have been liable to Mr Carr for his full 100% loss whether it had exposed him to asbestos for actual 27 years or only for the 6 years of the Midland insurance cover. But it would be anomalous if Zurich had to answer for the full 100% loss without any defence or right of recourse. In this situation, the majority holds that, although Zurich must in the first instance answer for the full 100%, Zurich has equitable rights to contribution pro rata from any other insurer (such as Excess) able to contribute and, in respect of any period where there is no such insurer, from IEG itself. [42 54], [63] and [77 78]. The minority considers that Zurich is only liable to IEG in the first instance for 22.08% of the full loss [180 187]. (4) Lord Mances judgment also discusses the position under the Third Party (Rights against Insurers) Act 1930 had IEG been insolvent, and concludes that it is probable that Mr Carr would in such a case have been able to look to Zurich for his full 100% loss [97].
Section 28 of the Housing Act 1988 The Housing Act 1988 (the 1988 Act) was brought in with a view to stimulating the availability of rented accommodation in the private sector; it allowed landlords to let new tenancies on terms more advantageous to themselves [4]. Parliament included safeguards to deter unscrupulous landlords from evicting existing tenants with protected tenancies [15]. Section 27 of the 1988 Act provides the right to claim damages for unlawful eviction [6]. Section 28 sets out the method by which such damages are calculated, being the difference in value between two alternative calculations of the landlords interest in the building at the time immediately prior to the unlawful eviction: (1) The basis for the assessment of damages [for unlawful eviction] is the difference in value, determined as at the time immediately before the residential occupier ceased to occupy the premises in question as his residence, between (a) the value of the interest of the landlord in default determined on the assumption that the residential occupier continues to have the same right to occupy the premises as before that time; and (b) the value of that interest determined on the assumption that the residential occupier has ceased to have that right. (2) In relation to any premises, any reference in this section to the interest of the landlord in default is a reference to his interest in the building in which the premises in question are comprised (whether or not that building contains any other premises) together with its curtilage. (3) For the purposes of the valuations referred to in subsection (1) above, it shall be assumed (a) that the landlord in default is selling his interest on the open market to a willing buyer Mr Loveridges flat at 19 Moresby Walk From November 2002 Mr Loveridge lived in the downstairs flat at 19 Moresby Walk, a two storey house. Both his flat and the upstairs flat were owned by the London Borough of Lambeth (Lambeth) and let under secure tenancies conferring certain statutory protections. From July to December 2009 Mr Loveridge made a trip to Ghana. While he was away, Lambeth changed the locks on his flat and cleared his possessions, mistakenly believing that he had died. Two days after he returned to the UK, his flat was rented to somebody else [2]. Mr Loveridge sued Lambeth for damages. The parties approaches to damages under section 28 Mr Loveridge and Lambeth each instructed a surveyor to value Lambeths interest in 19 Moresby Walk for the purposes of subsections 28(1)(a) and (b). Mr Loveridges surveyor calculated valuation (a) on the basis that 19 Moresby Walk was sold with both the upstairs and downstairs flats subject to secure tenancies. He calculated valuation (b) on the basis that 19 Moresby Walk was sold with vacant possession of the downstairs flat but with the upstairs flat subject to a secure tenancy. The difference in value was 90,500 [22]. Lambeth adopted a different approach. It relied on subsection 28(3)(a), which requires both valuations (a) and (b) to be calculated on the assumption that the property is sold on the open market to a willing buyer [18]. If 19 Moresby Walk had in fact been sold on the open market, say to a private landlord, the secure tenancies (which do not apply to private landlords) would have been converted into assured tenancies, thus allowing the new landlord to bring the rents up to market level [20]. Lambeths surveyor therefore conducted valuation (a) on the basis that both flats were subject to assured tenancies. He concluded that valuation (b) produced the same figure as valuation (a) because the downstairs flat with vacant possession would be worth the same as if it were subject to an assured tenancy [23]. The procedural history At the hearing in the Lambeth County Court, the judge found that Mr Loveridge had been unlawfully evicted. He preferred Mr Loveridges approach to the section 28 valuation exercise. On 25 September 2012 he awarded Mr Loveridge90,500 under section 28 and 9,000 at common law in respect of the trespass to his goods [2]. Lambeth appealed against the quantum of damages. The Court of Appeal accepted Lambeths argument and 10 May 2013 set aside the section 28 award [1]. It ordered Lambeth to pay 7,400 in damages at common law for unlawfully evicting Mr Loveridge, and, as before, 9,000 for trespass to goods. The Supreme Court unanimously allows the appeal and restores HHJ Blunsdons order for damages. Lord Wilson (with whom Lord Neuberger, Lord Sumption, Lord Carnwath and Lord Toulson agree) gives the judgment. The words of section 27 of the 1988 Act are wide enough to cover local authority landlords as well as public landlords, even though local authority landlords rarely perpetrate unlawful evictions of their tenants [15]. Section 28(1) requires the court to make two valuations, namely (a) and (b), of the landlords interest [16]. Valuation (a) is based on the assumption that the tenant continues to have the same right to occupy the premises, and the landlord continues to be subject to the same restrictions on recovering possession, as before the eviction occurred. Valuation (b) is based on the assumption that the tenants right to occupy and the restrictions on recovering possession have ceased [17]. The issue in this case was whether the valuation of both the upstairs and downstairs flats at 19 Moresby Walk (for valuation (a)) and of the upstairs flat (for valuation (b)) should be conducted on the assumption that they were subject to secure tenancies or to assured tenancies [24]. The assumption of a sale on the open market (subsection 28(3)(a)) is for the purposes of the valuations at subsection 28(1), in which other assumptions are mandated, namely (a) that the tenant continues to have the same right to occupy the premises as he had immediately prior to the eviction and, alternatively, (b) that he has ceased to have that right [26]. Prior to eviction, Mr Loveridges right to occupy the downstairs flat was that of a secure tenant. The notional exercise required by subsection 28(3)(a) does not extend to making adjustments to the nature of the tenants rights that are consequent upon sale. Such adjustments are barred by subsection 28(1)(a) which stipulates that the same right continues [27]. The likely effect upon a secure tenancy of a sale to a private landlord should not therefore be taken into account [28].
This appeal concerns the principle that an individual extradited to the UK to face trial may only be tried for crimes allegedly committed before the extradition if those crimes form the basis of the extradition request (the specialty principle), and its application to contempt of court proceedings. In 2009 Mr OBrien came under investigation on suspicion of involvement in a large scale scheme to defraud investors, commonly known as a boiler room fraud. On 24 September 2009 the Common Serjeant of London made a restraint order against him under section 41 of the Proceeds of Crime Act 2002 (POCA). This order required Mr OBrien (amongst other things) to make disclosure of his assets, not to remove assets from England and Wales, and to return to England and Wales within 21 days any moveable asset in which he had an interest outside England and Wales. The order contained a penal notice, warning Mr OBrien that if he disobeyed the order he could be found to be in contempt of court. Mr OBrien disobeyed the order and fled to the United States. On 18 December 2009 the Common Serjeant found that he was in contempt and issued a bench warrant for his arrest. Mr OBrien was traced to Chicago. The Serious Fraud Office (SFO) sought his extradition to face charges relating to the alleged boiler room fraud. Mr OBrien consented to his extradition on 8 October 2010. Since there was a concern that the outstanding bench warrant could complicate the extradition, the SFO applied to the Common Serjeant to set aside the bench warrant, which he did on 18 November 2010. Mr OBrien was returned to the UK on 2 December 2010. He was arrested, charged with various fraud offences, and remanded in custody. Meanwhile the SFO had reviewed its concerns about the contempt allegation, and re applied to the Common Serjeant for Mr OBriens committal for contempt. Mr OBrien challenged the courts jurisdiction to hear the application. That challenge was rejected by the Common Serjeant and by the Court of Appeal. Mr OBrien now appeals to the Supreme Court on two grounds, namely that: On the correct construction of the Extradition Act 2003, the specialty rule applies to any extradition offence, defined as conduct occurring in the UK and punishable under the law of the UK with imprisonment or detention for 12 months or more (by reference to sections 148 and 151A of the Extradition Act 2003 (the 2003 Act)). Mr OBriens contempt satisfies these criteria and so falls within the specialty rule; or In the alternative, Mr OBriens contempt of court is a criminal contempt constituting a criminal offence, and so falls within the specialty rule. The Supreme Court dismisses the appeal. The judgment of the Court is given by Lord Toulson. On the first issue, the Court holds that section 151A does not directly apply to this case [34 35]. In any event, the sections relied upon by Mr OBrien cannot be read in isolation, and reading the Act as a whole it is clear that conduct constituting an extradition offence must be a criminal offence under the law of the requesting state (here the UK) [36]. On the second issue, the Court holds that there is a material distinction between civil and criminal contempt. The latter involves a serious interference with the administration of justice [41]. The former is an inherent power used by a senior court in order to ensure that its orders are observed. Its primary purpose is to ensure that the courts orders are observed, and the contemnor does not acquire a criminal record [39 40]. In this case Mr OBriens disobedience to the Common Serjeants order constitutes civil contempt, which does not constitute an extradition offence [45]. First Ground: Mr OBrien argued that if his contempt satisfied the definition of extradition offence in section 148 of the 2003 Act, section 151A precluded a United Kingdom court dealing with him for that contempt [14 16]. Mr OBriens argument required reading these two sections in isolation. However, it is necessary to see how those sections fit into the structure of the 2003 Act [20]. Each of Parts 1 3 of the 2003 Act contain a similar definition of extradition offence, in each case referring to conduct punishable with imprisonment or another form of detention for a term of 12 months or a greater punishment, with a common structure across the definitions [21]. The Extradition Act 1989 was replaced by the 2003 Act in order to implement, in Part 1 of the 2003 Act, an EU Framework Decision [22]. Under the Framework Decision, it is a prerequisite of a valid arrest warrant that the conduct of which the person is accused or has been convicted constitutes a criminal offence under the law of the requesting state [25]. In relation to Part 1 (dealing with extradition from the UK to other Member States), the definition of extradition offence accordingly requires that an offence either be a listed extraditable offence or an offence under the law of the United Kingdom [28]. A similar scheme is in place in relation to extradition from the UK to those non EU countries with which the UK has extradition arrangements, governed by Part 2 of the 2003 Act. So, sections 137 and 138 of the 2003 Act require that an extradition offence concerns conduct which would constitute an offence under UK law [29 30]. That accords with the essential nature of extradition as it has been understood in the UK [31 33]. Part 3 of the 2003 Act deals with extradition to the UK. section 148 (within Part 3) has no direct application to this case, since the UK judiciary is not involved in the process of obtaining Mr OBriens extradition [35]. Nonetheless section 151A should be understood in the light of the wider scheme of the 2003 Act. It is clear that nothing can constitute an extradition offence unless it is a criminal offence under the relevant state, here the UK [36]. Second Ground: A restraint order under POCA is an interim remedy, aiming to prevent the disposal of realisable assets during a criminal investigation. The Crown Court has an inherent jurisdiction to treat breach of such orders as contempt of court [37 38]. There is a well recognised distinction between criminal contempt, covering conduct itself a crime, and civil contempt, covering conduct which is not itself a crime but is punishable by the court in order that the courts orders be observed. A civil contemnor does not receive a criminal record [39 41]. If a victim of Mr OBriens fraud had obtained a freezing order against him similar to the POCA restraint order and Mr OBrien had disobeyed and absconded, the victim would clearly have been able to bring contempt proceedings following his extradition [43]. There is no relevant difference with a POCA order. The key is the nature and purpose of the order, not the court in which the order was made [44]. Mr OBriens contempt was civil, and his committal is not barred by the specialty principle.
The appellant, DN, is a Rwandan national who was granted refugee status in the UK pursuant to the 1951 Refugee Convention on 26 October 2000. He was subsequently convicted in the UK of a number of offences, the most serious of which occurred on 22 January 2007 when he pleaded guilty to assisting the unlawful entry of a non EEA (European Economic Area) national in the UK contrary to section 25 of the Immigration Act 1971 (the 1971 Act). He was sentenced to 12 months imprisonment for the Immigration Act offence and two months consecutively for each of three pecuniary advantage offences making a total sentence of 18 months imprisonment. The Secretary of State for the Home Department has powers, under the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) to order the deportation of persons convicted of serious offences. Section 72(4)(a) of the 2002 Act provides that a person shall be presumed to have been convicted of a particularly serious crime and to constitute a danger to the community of the United Kingdom if s/he is convicted of an offence specified by order of the Secretary of State. The Secretary of State specified several offences which were said to be particularly serious crimes by way of the Nationality, Immigration and Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 (the 2004 Order). Assisting unlawful immigration contrary to section 25 of the 1971 Act was included among them. At the conclusion of DNs imprisonment on 2 July 2007, the Secretary of State made a decision to deport DN, based on section 72(4)(a) of the 2002 Act: DN was presumed, on the basis of the 2004 Order, to have been convicted of a particularly serious crime and to constitute a danger to the community. On 31 January 2008, the Secretary of State, using his powers of administrative detention conferred by Schedule 3, paragraph 2(3) of the 1971 Act, ordered DNs detention pending deportation. DN brought a claim for judicial review of the deportation order. Following a stay and the decision in EN (Serbia) v Secretary of State for the Home Department [2009] EWCA Civ 630, [2010] QB 633, which determined that the 2004 Order was unlawful, DN amended his judicial review proceedings to concentrate on the lawfulness of the detention. Following a further stay and the decision in R (Draga) v Secretary of State for the Home Department [2012] EWCA Civ 842, where the Court of Appeal ruled detention lawful even where based on an unlawful deportation order, the Court of Appeal dismissed DNs substantive appeal. The Supreme Court unanimously allows the appeal. It holds that the appellant was unlawfully detained and is entitled to pursue a claim for damages for false imprisonment. Lord Kerr, with whom Lord Wilson, Lady Black and Lord Kitchin agree, gives the lead judgment. Lord Carnwath gives a concurring judgment. Lord Kerr, with whom Lord Wilson, Lady Black and Lord Kitchin agree First, the Court notes that Lord Dyson in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12 made it clear that there is no difference between a detention that is unlawful because there was no statutory power to detain and a detention that is unlawful because the decision to detain was made in breach of a rule of public law. Here, as in Lumba, there was no statutory power to detain. The 2004 Order upon which the decision to deport was based was ruled unlawful in EN (Serbia). As detention was for the express purpose of facilitating deportation, without a lawful deportation order the occasion for detention simply does not arise [17]. Second, detention is entirely dependent on the decision to deport. DNs detention was uniquely linked to the deportation order. Without a lawful decision to deport, the question of detention cannot arise, much less be legal [18, 20]. The lawfulness of detention is always referable back to the legality of the decision to deport, and this is not an instance of a series of successive steps, each having an independent existence. For this reason, the Court does not accept the argument that the independent judicial decision made in statutory appeals (per section 82 of the 2002 Act) is a step removing the legal error in question. The rubric, chain of causation is inapposite in this context [19]. The Court considers that Draga was wrongly decided, for the reasons given by Lord Carnwath. Further, the Court considers that, if and insomuch as Ullah suggests that paragraph 2(2) of Schedule 3 of the 1971 Act provides stand alone authority for lawful detention, no matter what has gone before and irrespective of the fact that the decision to deport lacks legal basis, that decision too was wrong. Lord Carnwath Lord Carnwath agrees with Lord Kerrs judgment, but adds his thoughts, particularly on the issue of res judicata / issue estoppel, which was not discussed in argument but which to his mind could provide a complete answer in similar cases in the future [1]. Lord Carnwath agrees that the decision to detain in this case was directly dependent on the deportation decision and that, as such, DNs claim for damages comes clearly within the Lumba principle, unless excluded by some specific rule of law. No such rule emerges from the reasons of the Court of Appeal in Draga or from submissions for the Secretary of State [9 10]. Lord Carnwath considers Draga was wrongly decided for two reasons. First, Pill LJs suggested grounds for distinguishing R v Governor of Brockhill Prison, Ex p Evans (No 2) [2002] 2 AC 19 are unpersuasive: it could not be said that the Secretary of State was acting within the four corners of a court order relating to the applicants detention. Rather, the decision of the tribunal related only to deportation [11 12]. Second, Pill LJs reliance on the second actor theory was misplaced: where the Secretary of State is directly responsible for making the order later found to be unlawful, it would be odd if it could rely on it to support the validity of later actions based on it [12]. Finally, Lord Carnwath considers that issue estoppel, if argued, could have provided the answer to this appeal. DNs private law claim for damages depended on the lawfulness of the deportation decision at the time it was made. That issue was conclusively determined by the decision of the tribunal in August 2007 and the decision of the High Court rejecting the application for review. DN had the opportunity to challenge the legality of the original deportation decision by reference to the invalidity of the 2004 Order, but did not do so. Hence, he would be estopped from challenging it at a later date [30]. However, since the Secretary of State did not rely on res judicata, it would be unfair to DN for the court to introduce it at this stage [37].
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].
The appellants in these cases challenged the validity of an amendment to the Immigration Rules in 2010 requiring a foreign spouse or partner of a British citizen or person settled in the United Kingdom to pass a test of competence in the English language before coming to live here (rule E ECP 4.1 and E LTRP 4.1 in Appendix FM) (the Rule). They argued that the Rule itself is an unjustifiable interference with the right to respect for private and family life protected by article 8 of the European Convention on Human Rights (ECHR) and/or is unjustifiably discriminatory in securing the enjoyment that right contrary to article 14, or unlawful by reason of its irrationality. The Governments objectives in introducing the pre entry English requirement for spouses and partners were (a) to assist the spouse or partners integration into British society at an early stage, (b) to improve employment chances for those who have access to the labour market, (c) to raise awareness of the importance of language and to prepare for the tests that the spouses or partners would later have to pass to settle indefinitely in the UK, (d) to save translation costs, (e) to benefit any children the couple might have and (f) to reduce the vulnerability of newly arrived spouses, especially women. The Rule requires spouses and partners to show the ability to speak English at a basic level by passing a test with an approved test provider unless exceptional circumstances are shown. Guidance accompanying the Rule makes it clear that exceptional circumstances will rarely arise and do not include financial reasons or lack of literacy. The appellants are UK citizens who have been married to foreigners since 2009 and 2010 respectively. Their husbands are unable to satisfy the pre entry language requirement, in Saiqa Bibis case because he would have to relocate to Rawalpindi in Pakistan for several months, which is not affordable, and in Mrs Alis case because there is no test centre in the Yemen where they have had to live. The High Court held that the Rule itself was not unlawful. The Court of Appeal by a majority upheld the High Courts decision. The Supreme Court unanimously dismisses the appeal in respect of the finding that the Rule itself does not infringe article 8, but it invites further submissions from the parties on whether a declaration should be made that the operation of the Guidance in its present form is incompatible with article 8 rights where compliance with the requirement is impracticable. Three justices give substantive judgments: Lady Hale (with whom Lord Wilson agrees), Lord Hodge (with whom Lord Hughes agrees) and Lord Neuberger. The right to respect for family life guaranteed by the ECHR includes the right of married couples to live together, but article 8 does not impose a general obligation on the part of a state to respect the choice by married couples of the country of their matrimonial residence and to accept the non national spouses for settlement in that country [25 26]. However, interference with the right must still be proportionate, striking a fair balance between the interests of the individuals and the community as a whole [29]: The six objectives of the Rule are intended to protect the interests of the economic well being of the country or perhaps the protection of the rights and freedoms of others. Assisting the spouse or partners integration into British society at an early stage is undoubtedly an important and benign aim for which even a basic level of English language skills would be of some benefit. Evidence filed by the appellants casts doubt on the value of the test in getting the learner off to a flying start compared with the opportunities to learn after arrival, but the aim is legitimate and sufficiently important to justify interference with the article 8 right [30 45] There is a rational connection between the Rule and the aim it seeks to achieve. It will make a contribution to the overall aim of promoting integration [46] The Rule is no more than necessary to achieve this contribution [47 48] The impact of the pre entry language requirement has not been systematically studied by the Secretary of State but it is obvious that at an individual level access to appropriate tuition and a test centre may prove such an obstacle that it amounts to an unjustified interference with their partners article 8 rights [50]. However, the problem lies not in the Rule itself but in the restrictive interpretation of exceptional circumstances in the Guidance which means there are likely to be a significant number of cases in which the present practice does not strike the fair balance required by article 8 [53 55]. The discrimination claim adds nothing to the claim under article 8: the exemption for nationals of Anglophone countries makes sense and direct discrimination on grounds of nationality could be justified under article 14 [56 59]. Accordingly, the Rule itself is not disproportionate. Lady Hale suggests that the appropriate solution to avoid infringements in individual cases would be to recast the Guidance to grant exemptions in cases where compliance with the requirement is simply impracticable, and one remedy might be for the court to declare that the present application of the Guidance is incompatible with the rights of individuals in such circumstances. Since this was not a remedy sought by the appellants the Court should invite further submissions before finally deciding the outcome of the appeal [55, 60]. Lord Hodge agrees that there is no basis for striking down the Rule and that the Guidance may result in a significant number of cases in which the article 8 rights of individuals will be breached, where, for example the cost is inordinate. He is not persuaded that a declaration relating to the Guidance is appropriate but is content to reach a concluded view after further submissions [61 76]. Lord Neuberger agrees that the Guidance seems bound to result in the infringement of article 8 rights in individual cases but that the Rule itself is not disproportionate, bearing in mind the wide measure of discretion which should be accorded to the executive in a case such as this and the research that was done in anticipation [98]. He is sympathetic to the proposed declaration relating to the Guidance but agrees that it would be wrong to make it without considering further submissions [104].
PJS is married to YMA. Both are well known individuals in the entertainment business. They have two young children. Between 2009 and 2011 PJS had a sexual relationship with AB and, on one occasion, with AB and CD. In January 2016 the editor of the Sun on Sunday newspaper, published by News Group Newspapers (NGN), notified PJS that he proposed to publish ABs account of the relationship. PJS issued proceedings claiming that the publication would breach his rights to privacy and confidentiality, protected by article 8 of the European Convention on Human Rights (ECHR). He applied for an interim injunction, to restrain publication pending the trial of his claim. This application required the court to balance PJSs article 8 rights with NGNs right to freedom of expression under article 10 ECHR, and was subject to s 12 of the Human Rights Act 1998 (HRA). Section 12(3) provides that an interim injunction can only be granted if a claimant is likely to establish at trial that publication should not be allowed. Section 12(4) provides that the court must have particular regard to the importance of freedom of expression and, in relation to journalistic material, to the extent to which the material has or is about to become available to the public, to the public interest in the material being published, as well as to any relevant privacy code. The High Court refused the application but the Court of Appeal allowed PJSs appeal on 22 January 2016 and granted an interim injunction which restrained publication of information which would disclose the identity of PJS and details of the sexual relationship. On 6 April 2016 ABs account was published in print in the United States, and thereafter in Canada and in Scotland, identifying PJS. As a result of representations by the appellants solicitors, publication was restricted to hardcopy editions and online publication was geo blocked such that internet users in England and Wales could not readily access those sites. However, details have been published on a number of other websites and social media, although the appellants solicitors have been doing their best to remove offending URLs and web pages. On 12 April 2016 NGN applied to the Court of Appeal to set aside the interim injunction on the ground that, as the information was now in the public domain, PJS was unlikely to obtain a permanent injunction at trial and the interim injunction could therefore no longer be justified. On 18 April 2016 the Court of Appeal held that the injunction should be discharged. The Supreme Court restored it pending determination of PJSs application for permission to appeal, which it ordered to be heard with the appeal, should permission be granted. The Supreme Court unanimously grants permission to appeal; and allows PJSs appeal by a majority of 4 to 1. Lord Mance gives the leading judgment, with which Lord Neuberger and Lady Hale (each of whom give supporting judgments) and Lord Reed agree. Lord Toulson gives a dissenting judgment. As the Court of Appeal erred in law, the Supreme Court grants permission to appeal and must decide for itself whether the interim injunction should be discharged or maintained [19]. The principal error is that the Court of Appeal wrongly directed itself that s 12 HRA enhanced the weight to be given to article 10 rights in the balancing exercise, when the case law establishes that neither article 8 nor article 10 has preference over the other and what is necessary is an intense focus on the comparative rights being claimed in the individual case [20][51]. The Court of Appeal also referred to a limited public interest in the story when it had rightly held that there was none in its earlier judgment [21]. There is not, on its own, any public interest in the legal sense in the disclosure of private sexual encounters even if they involve infidelity or more than one person at the same time, however famous the individual(s) involved [24][32]. It is essential to distinguish between the claims for breach of privacy and for breach of confidence. The widespread availability of the information in the public domain may well mean that PJS would face difficulties in obtaining a permanent injunction in so far as his claim is based on confidentiality [57], but different considerations apply to privacy claims, where the impact of any additional disclosure on the likely distress to PJS and his family, and the degree of intrusion or harassment, continues to be highly relevant. The question is whether the injunction can still serve a useful purpose. It is important to consider the medium and form of the previous publication: there is a qualitative difference in intrusiveness and distress between the disclosures on the internet which have occurred and the media storm which would follow from publication by the English media in hard copy, together with unrestricted internet coverage of the story [35][63]. Publication in this form is contrary to the interests of PJSs children and in breach of the requirement to show an exceptional public interest for the intrusion set out in the Editors Code of Practice to which NGN has subscribed [36]. Lady Hales judgment discusses this consideration further, partly in redacted form to prevent identification [72 78] Rights must be practical and effective. The grant of an injunction is the only remedy of any value to PJS and his family, for whom the invasion of privacy occasioned by further disclosure in the English media, rather than any award of damages, is likely to be the real concern [43]. The central issue is whether the trial judge is likely to grant a permanent injunction. Balancing all these factors, the majority concludes that PJS is likely to establish at trial that the proposed publication by NGN constitutes a serious breach of his and his familys privacy rights, with no countervailing public interest on the present evidence, and that he is likely to be granted a permanent injunction notwithstanding the internet and social media publication. Accordingly, the interim injunction is maintained [44 45][68]. Lord Toulson, dissenting, would have upheld the discharge of the injunction. He considers that where the information is widely available, the form of the publication should not make a significant difference: the purpose of s 12(3) is to discourage the granting of an injunction to prevent publication of information which is already widely known [89].
The appellants were convicted of serious criminal offences after trials in which the victims of the offences did not give evidence: in one case because he had since died and in the other because she had run away in fear when the trial was about to commence. In each case a statement from the victim was admitted pursuant to s 116 Criminal Justice Act 2003 and placed before the jury. The appellants complained that their convictions were based solely or to a decisive extent on the statement of a witness whom they had had no chance to cross examine. This had infringed their right to a fair trial guaranteed by articles 6(1) and 6(3) of the European Convention on Human Rights which provide: 6(1) In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law (3) Everyone charged with a criminal offence has the following minimum rights: (d) To examine or have examined witnesses against him and to obtain the attendance and examination of The Court of Appeal had dismissed the appellants appeals against conviction, holding that the test of fairness laid down by the European Court of Human Rights in Al Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1 was not determinative of the results in these appeals. The United Kingdom had requested that this decision be referred to the Grand Chamber of the Strasbourg Court. On 5 June 2009 the Panel of the Grand Chamber adjourned consideration of that request pending the judgement of the Supreme Court in this case. The Supreme Court unanimously dismissed the appeal. The judgment of the court was given by Lord Phillips, President. witnesses on his behalf under the same conditions as witnesses against him. The questions before the court were (i) whether the regime enacted by Parliament in relation to the admission of the evidence of an absent witness at a criminal trial will result in an unfair trial and, if not (ii) whether the case law of the European Court on Human Rights nonetheless requires the court to apply that regime in a manner contrary to the intention of Parliament. The requirement to take into account any judgment of the European Court of Human Rights found in s 2 Human Rights Act 1998 would normally result in the Supreme Court applying principles that were clearly established by the Strasbourg court. There would however be rare occasions where the court had concerns as to whether a decision of the Strasbourg court sufficiently appreciated or accommodated particular aspects of the UK trial process. In such circumstances it was open to the Supreme Court to decline to follow the Strasbourg decision, giving reasons for adopting this course. This was likely to give the Strasbourg Court the opportunity to reconsider the particular aspect of the decision that was in issue, so that there took place what might prove to be a valuable dialogue between the courts [para 11]. The conclusions of the Court of Appeal were correct and the judgement of the Supreme Court should be read as complementary to that of the Court of Appeal and not as a substitute for it [para 13]. The Supreme Court held that the appellants trials were fair notwithstanding the decision in Al Khawaja for the following reasons: (i) The common law hearsay rule addressed the aspect of a fair trial covered by article 6(3)(d). Parliament had enacted exceptions to the hearsay rule in a regime which contained safeguards that rendered the sole or decisive rule unnecessary. (ii) The Strasbourg Court had recognised that exceptions to article 6(3)(d) were required in the interests of justice but the jurisprudence on the exceptions lacked clarity and had introduced a sole or decisive rule without discussion of the principle underlying it or full consideration of whether it was justified to impose it equally on common law and continental jurisdictions (iii) The sole or decisive rule would create severe practical difficulties if applied to English criminal procedure. In almost all cases English law would reach the same result without it. Al Khawaja did not establish that it was necessary to apply the rule in this jurisdiction. Judgments
This is a case about the rights of unmarried fathers to take part in childrens hearings under Part II of the Children (Scotland) Act 1995. It raises two distinct issues. The first concerns the kind of order made in the sheriff court which would be effective to give a father the right to take part in the childrens hearing. The second concerns the compatibility of the statutory scheme for participation in the childrens hearing with the rights of the father (and indeed the child) under the European Convention on Human Rights. The appellant K is an unmarried father. He formed a relationship with JR. They cohabited and had a child, L, born in May 2002, whose birth they registered together. Their relationship subsequently broke down. After the separation, K continued to have contact with L, and was involved with her hospital appointments until at least September 2003. In about May 2004, K raised proceedings in the sheriff court seeking full parental responsibilities and parental rights and a contact order. An interim order for weekly overnight stays was made. In December 2005, JR alleged that K had abused L. In March 2006, the local authoritys social work services department referred the case to the Principal Reporter on the ground that L was in need of compulsory measures of supervision. There were childrens hearings in June and July and in August the sheriff deemed the grounds of referral proved and remitted the case to the childrens hearing. K was not entitled to attend any of these hearings as he was not a relevant person within the meaning of section 93(2)(b) of the 1995 Act. At a child welfare hearing on 27 October 2006, the sheriff made an order granting K parental rights and responsibilities to the extent that he becomes a relevant person in the childrens referral. Thereafter K attended the childrens hearings. In August 2007, the hearing imposed a condition of no contact between K and L. In January 2009 K appealed against the continuation of this condition. The Principal Reporter then challenged the sheriffs order in the Court of Session on the ground that it was incompetent. On 27 March 2009, the Lord Ordinary suspended the sheriffs order of 27 October 2006. On 21 January 2010 the First Division refused Ks appeal and his application for a declaration of incompatibility with the European Convention on Human Rights. Section 11(1) of the 1995 Act provides that the sheriff court may make an order in relation to parental responsibilities and parental rights. Subsection (7) provides that in considering whether to make an order under subsection (1), the court shall regard the welfare of the child as its paramount consideration, shall not make an order unless it would be better for the child to do so, and, where practicable, shall ascertain the childs views. These considerations are referred to as the overarching principles. Section 93(2)(b) defines relevant person as a person (including a parent) with parental responsibilities or parental rights or who appears to be a person who ordinarily has charge of, or control over, the child. The Supreme Court unanimously allows the appeal. Lord Hope and Lady Hale give the judgment of the Court. The Court holds that the sheriffs order of 27 October 2006 was not incompetent and so recalls the First Divisions interlocutor and dismisses the petition. The Court declares that section 93(2)(b)(c) of the Children (Scotland) Act 1995 should be read so as to include the words or who appears to have established family life with the child with which the decision of a childrens hearing may interfere. The Court makes a finding that K is a relevant person within the meaning of section 93(2)(b)(c) as so read. The Court notes that the case raises a fundamental issue about fairness. Neither in July nor in August 2006 did K have the opportunity to refute the allegations in the grounds of referral. This is contrary to one of the fundamental rules of natural justice, the right to be heard. [14] The order of 27 October 2006 was competently pronounced. The order was one which the sheriff had power to grant under section 11(1) of the 1995 Act. The defect in the order is one of specification, not of substance. While it would have been better if the sheriff had expressly referred to the relevant provisions of the 1995 Act and to the relevant parental responsibilities and rights, and to the fact that participation in the childrens hearing set the limits for the exercise of those responsibilities and rights, the order was not incompetent because he did not do so. [24] [28] There was not a sound basis for the First Divisions view that the sheriff failed to apply the overarching principles. Such evidence as there is suggests that the very experienced sheriff had these principles in mind throughout the hearing. In any event, failure to apply the correct principles when making an order, while it may be a ground of appeal, would not normally render the order incompetent. [31] A parent (or other person) whose family life with the child is at risk in the proceedings must be afforded a proper opportunity to take part in the decision making process. As currently constituted the childrens hearing system violated the article 8 rights of K (and indeed of L) and risks violating the rights of others in the same situation. The childrens hearing has to have the best and most accurate information that it can in order to make the best decisions about the child. The only justification advanced for excluding a father unless and until he secures a parental responsibilities and parental rights order from the sheriff court is to ensure that only persons who can make a meaningful contribution to the hearing are present. However, it is difficult to see how excluding a father such as K can possibly be proportionate to that aim. All fathers registered since 4 May 2006 are entitled to be present. Further, when the alleged grounds for referring the child consist almost entirely of allegations against the father, it cannot possibly be legitimate to exclude him for the purpose of restricting the numbers. [39] [48] The incompatibility with Article 8 can be cured by inserting the words or who appears to have established family life with the child with which the decision of a childrens hearing may interfere into section 93(2)(b)(c) of the 1995 Act. [69]
This appeal involves a challenge to the compatibility of the police power contained in s 60 Criminal Justice and Public Order Act 1994 (s 60), with the right to respect for private life protected by article 8 of the European Convention on Human Rights (ECHR). S 60 permits a police officer to stop and search any person or vehicle for offensive weapons or dangerous instruments, whether or not he has any grounds for suspecting that the person or vehicle is carrying them, when an authorisation from a senior police officer, which must be limited in time and place, is in force. On 9 September 2010, in response to a period of gang related violence in Haringey, Superintendent Barclay authorised the carrying out of searches under s 60 for 17 hours in parts of the borough, concluding that it was a proportionate response to protect members of the public from serious violence. That day, Police Constable Jacqui Reid was called to an incident in Tottenham involving a passenger who had not paid her fare on the no. 149 bus. The passenger was the appellant, Mrs Roberts. She had denied having identification with her and kept a tight hold on her bag. PC Reid used the power under s 60 to search her bag, which enabled Mrs Roberts name to be established from a bank card. Mrs Roberts brought judicial review proceedings against the police alleging breaches of a number of her rights under the ECHR. Both the High Court and Court of Appeal rejected her claims. The only claim pursued in her appeal to the Supreme Court was the alleged breach of article 8. She sought a declaration of incompatibility under s 4 Human Rights Act 1998 on the ground that the power is not in accordance with the law. Article 8 requires the law to be sufficiently accessible and foreseeable for an individual to regulate his conduct accordingly and to have sufficient safeguards against the risk that it will be used in an arbitrary or discriminatory manner The Supreme Court unanimously dismisses Mrs Roberts appeal, holding that the safeguards attending the use of the s 60 power, in particular the requirements to give reasons both for the authorisation and for the stop and search, make it possible to judge whether the power has been exercised lawfully. Both the power and the particular search of Mrs Roberts were in accordance with the law. Lady Hale and Lord Reed give the only substantive judgment with which the other justices agree. The power found in s 60 is one of the few instances where Parliament has decided that stop and search powers without reasonable grounds to suspect the commission of an offence are necessary for the protection of the public from terrorism or serious crime. It was common ground in the appeal that the power interferes with the right to respect for private life but that it pursues a legitimate aim which is capable of justification under article 8(2). The issue was whether it also satisfied article 8(2) by being in accordance with the law [3]. S 60 is directed towards the risk of violence involving knives and other offensive weapons in a particular locality. It depends on an authorisation by an officer of the rank of inspector or above, who reasonably believes that incidents involving serious violence may take place in any locality in his police area, and that an authorisation of up to 24 hours (renewable once) is expedient to prevent their occurrence by allowing stops and searches in order to discover offensive weapons. The exercise of the powers is subject to numerous safeguards and restrictions in the Police and Criminal Evidence Act 1984, the Code of Practice and the Standard Operating Procedures of the Metropolitan Police. Failure to comply with these safeguards renders the exercise of compulsory powers which interfere with individual freedom unlawful [7, 28 37]. The authorisation made on 9 September 2010 followed police intelligence reports indicating a risk of further violence in connection with rival gangs. When PC Reid attended the incident she considered that the appellant was holding her bag in a suspicious manner, and her experience was that it was not uncommon for women of a similar age to carry weapons for other people. She therefore conducted a search of the appellants bag exercising the s 60 power, and provided the appellant with a form explaining these reasons [10 13]. This is the first challenge to the s 60 power to come before the court. Previous case law concerning similar stop and search powers establishes that some but not every suspicion less power would fail the requirement of lawfulness under the ECHR. It is often important to the effectiveness of the powers that they be exercised randomly and unpredictably. The question is whether the legal framework permits the court to examine the propriety of the exercise of the power [15 26]. Whatever the scope of the power, it must be operated in a manner which is compatible with the ECHR rights of any individual and be free of discrimination [42]. These constraints, together with disciplinary sanctions against police officers, guard against the risk that the s 60 power will be exercised when the officer does not in fact have good reasons for the decision [43]. The requirements attaching to the authorisation [44], the operation [45] and the actual encounter on the street [46], in particular the requirement to give reasons, should make it possible to judge whether the action was necessary in a democratic society for the prevention of disorder or crime. The law itself is not incompatible with article 8 [47]. Accordingly, a declaration under the Human Rights Act should not be made. Nor should there be a declaration that the guidance current at the time was inadequate or that the particular search of the appellant was not in accordance with the law [48].
Littlewoods overpaid VAT to HMRC between 1973 and 2004. Between 2005 and 2008, HMRC repaid the principal sum of 205 million, together with simple interest of 268 million. In these proceedings, Littlewoods seek additional interest, calculated on a compound basis as 1.25 billion, on the ground that such interest is due under the common law of restitution, either as restitution for a mistake of law, or as restitution of tax unlawfully demanded (a Woolwich claim). The two issues for the Supreme Court in the present case are: (1) Whether Littlewoods common law claims are excluded by sections 78 and 80 of the Value Added Tax Act 1994 (the 1994 Act) as a matter of English law, and without reference to EU law. The lower courts found that Littlewoods common law claims were barred by the 1994 Act. Littlewoods appeals on this issue; (2) If Littlewoods claims for compound interest are excluded by sections 78 and 80 of the 1994 Act, whether that exclusion is contrary to EU law, in light of the Court of Justice of the European Unions (CJEU) judgment in Case C 591/10 Littlewoods. The lower courts found that denying compound interest was contrary to EU law. HMRC appeals on this issue. Other issues were raised, but these would only need to be decided if Littlewoods were successful on either of the first two issues. The Supreme Court unanimously dismisses Littlewoods cross appeal on the first issue, and allows HMRCs appeal on the second issue. Lord Reed and Lord Hodge give a joint judgment, with which the rest of the Court agrees. The first issue: whether the common law claims are excluded by the 1994 Act Section 78 of the 1994 Act impliedly excludes the claims made by Littlewoods, as a matter of English law, for the following reasons. First, the scheme created by section 78 is inconsistent with the availability of concurrent common law claims to interest. The right to interest in section 78 is subject to certain limitations, including (i) section 78(1), which limits HMRCs liability to pay interest to cases of error by HMRC [31]; (ii) section 78(3), and the provisions to which it refers, which determine that the interest rate is calculated on a simple rather than a compounded basis [32]; (iii) section 78(11), which sets the applicable limitation period, which is shorter than the limitation period that would apply to a common law claim [33]. These limitations would be defeated and rendered effectively pointless if it were possible for the taxpayer to bring a common law claim[34]. Second, section 78 states that the liability to pay interest under that section applies if and to the extent that [the Commissioners] would not be liable to do so apart from this section. On a literal meaning, this would permit a common law claim for interest to be made outside section 78. At the time section 78 was enacted, however, the type of common law claim made by Littlewoods in the present case had not yet been recognised in law, and was thus not contemplated by Parliament when it enacted the legislation. It cannot have been Parliaments intention that a common law claim would be permitted in any case where an amount was paid under section 80, as this would render section 78 a dead letter, and would fatally compromise the statutory scheme. As such, the reservation in section 78(1) (italicised above) cannot be read literally. It must be construed as referring only to statutory liabilities to pay interest, not to a common law liability for interest [34 39] The second issue: whether EU law requires the payment of compound interest The CJEU judgment does not require reimbursement of the losses constituted by the unavailability of money. The CJEU has given member state courts a discretion to provide reasonable redress in the form of interest in addition to the principal sum. The lower courts in this case read too much into the phrase adequate indemnity in the CJEU judgment [51, 70]. Three reasons support this view. First, when read as a whole, the CJEUs judgment, which directly addresses the issue in this case, is clear. The judgment can be analysed in the following three parts: (i) there is a general entitlement to interest on tax levied in breach of EU law (paras 24 26 of the CJEU judgment); (ii) it is for member states to determine whether the interest rate is simple or compound, subject to the principle of effectiveness which requires that the calculation of that interest should amount to reasonable redress or an adequate indemnity for the taxpayers loss (paras 27 29 of the CJEU judgment); and (iii) the suggestion that interest which is over 125% of the principal sum might be such reasonable redress (para 30 of the CJEU judgment) [52 59, 71]. Second, there is a widespread practice among EU member states of awarding taxpayers simple interest on the recovery of taxes which were unduly paid. If the CJEU were seeking to outlaw that practice, one would have expected clear words to that effect [60, 72]. Third, the prior and subsequent case law of the CJEU is consistent with the principle that there is an EU right to interest, but that the rate and method of calculation of interest are matters for the member states. Case C 271/91 Marshall, where the CJEU held that interest had to be awarded to take account of the diminution in value of money over time, was a case about the measure of compensation for sex discrimination, and is distinguishable from the present case [61 69]. In summary, the payment of interest in this case cannot realistically be regarded as having deprived Littlewoods of an adequate indemnity [73]. The other issues raised in the appeal do not arise for decision, as they would arise only if Littlewoods were successful on either of the first two issues [16].
Where an application for a European Arrest Warrant (EAW) is made, and the defendant has been convicted and sentenced in the requesting state, section 2(6)(e) of the Extradition Act 2003 (the Act) requires the EAW to include particulars of the sentence(s) imposed. This enables the requested court to determine whether the sentence is equal to or exceeds the minimum sentence required to constitute an extradition offence. Section 65(3)(c) of the Act applies to offences in the requesting state which would constitute an offence in the UK if it occurred there, provided that a minimum sentence of four months was imposed. Many EU states provide for the aggregation of successive sentences imposed on different occasions to produce a single sentence for all of the offences committed, which usually has the effect of reducing the overall period of imprisonment. Earlier case law establishes that where each of the original sentences is for conduct that satisfies all the other requirements of an extradition offence, it is enough for a EAW to specify the cumulative sentence rather than all of the individual sentences. This appeal concerns the converse: what happens if a EAW specifies only the original sentences, but after it has been issued they are aggregated and their totality reduced? Lukasz Zakrzewski was convicted on four occasions in Poland of various offences of dishonesty or violence. His sentences were initially suspended and then activated by further offences or breaches of probation terms. On 24 February 2010, Mr Zakrzewski having absconded, the Regional Court in Lodz issued a EAW against him based on these four convictions specifying the sentences passed. He was then arrested in England on 28 September 2010 and brought before the City of Westminster Magistrates Court the same day. However, as he was facing further criminal charges in England, the extradition proceedings were adjourned. During this adjournment, Mr Zakrzewski applied to the District Court of Grudziadz in Poland to have the four sentences aggregated. The court duly aggregated them and on 19 April 2012 imposed a cumulative sentence of 22 months imprisonment (as opposed to the aggregate of 45 months of the original sentences). When the extradition proceedings resumed, Mr Zakrzewski claimed that the aggregation order meant the EAW was no longer gave the particulars required by s.2(6)(e) because the only relevant sentence now included was the cumulative sentence. The warrant was therefore invalid, and no longer gave proper, fair or accurate particulars. District Judge Rose rejected Mr Zakrzewskis arguments and granted an extradition order. However, this was overturned by Lloyd Jones J in the High Court on the basis that the EAW must relate to the current operative sentence in force not to earlier individual ones subsumed in an aggregated order to enable the requested court to know the length of imprisonment the requesting state had ordered. The Regional Court in Lodz appealed to the Supreme Court. The Supreme Court unanimously allows the appeal and restores the extradition order of District Judge Rose. Lord Sumption gives the judgment of the Court. Just before this judgment was due to be delivered, the Court was informed that Mr. Zakrzewski had returned voluntarily to Poland after the argument on the appeal and been arrested there. Accordingly, the warrant has been withdrawn by the court which issued it. This does not affect the issue which the Court has to decide. But it does mean that, formally, the appeal must now be dismissed: see section 43(4). The purpose of the European Council Framework Decision 2002/584/JHA of 13 June 2002 (the Framework Decision) and Part 1 of the Act was to create a simplified and accelerated procedure based on mutual recognition [7]. The courts of states being asked to consider EAWs should generally take information contained in them at face value. An EAWs validity depends on whether the prescribed particulars are found in it, not on whether they are correct. A defendant cannot normally challenge its validity by reference to extraneous evidence. If this is true of information in an EAW which was wrong at the time of issue, it is true for information which was correct at the time of issue but ceased to be correct due to subsequent events. A EAW is either valid or not valid. It cannot change over time [8]. It does not follow that nothing can be done to correct prescribed particulars that have become incorrect but the remedy must be at the stage when the court is deciding whether to extradite [9]. Lord Sumption drew attention to two safeguards against unjustified extradition in this context. The first was mutual trust between parties to the Framework Decision to ensure information in a EAW is true. The requesting authority has the right to forward additional information at any time and the requested UK authority has the right to receive it and to request further information [10]. The second safeguard is the courts inherent right to ensure its process is not abused, for example, where an EAW has been obtained for improper purposes [11]. A court can question statements made in EAW on the grounds of an abuse of process. However, Lord Sumption noted that: (a) this jurisdiction is exceptional; (b) the facts needed to correct the error must be beyond legitimate doubt and abuse of process must not become an indirect way of challenging the factual basis of conduct alleged in a EAW; (c) the error must be material to the operation of the statutory scheme. It is inconsistent with the Framework Decision to refuse to execute a EAW, in which the prescribed particulars were included, because of immaterial errors [13]. In the present case, the EAW was valid when it was issued to Mr Zakrzewski. It did not become invalid when the aggregation order was made. The particulars of sentence were no longer complete but they were not wrong. The evidence is that in Polish law the original sentences remain valid but the cumulative one determines what period of imprisonment will be treated as satisfying them [14]. The fact that the imprisonment period which would satisfy the four original sentences was shortened was immaterial, as even the shorter sentences were longer than the minimum of 4 months required for disclosing an extradition offence under the Act [15]. The sentence of the court will rarely be the current operative sentence since the period to be served will be affected by factors such as remission or parole as well as aggregation. Criminal procedures vary from one jurisdiction to another without affecting the ordinary criteria for extradition or undermining the purpose of the Framework Decision or Part I of the Act [16].
Mr Holden accidentally set fire to his car while repairing it at the premises of his employer, Phoenix Engineering. The fire caused 2 million of damage to Phoenix and its neighbours premises. Phoenixs insurer (Axa) paid out and has agreed not to pursue Mr Holden personally for the money, but only his car insurance provider (Churchill). Axa says that Mr Holden is covered by his car insurance policy's third party liability cover but Churchill says he is not. Clause 1a of the policy says we will cover you for your legal responsibility if you have an accident in your vehicle and: you kill or injure someone; [or] you damage their property . As required by law, the policy also includes a certificate that it satisfies the requirements of relevant legislation, which includes the Road Traffic Act 1988 (RTA). Under the RTA, car insurance policies must provide cover in respect of any liability incurred in respect of damage to property caused by, or arising out of, the use of the vehicle on a road or other public place. The High Court held that the policy did not cover Mr Holden's accident because it had arisen out of the negligent way in which it was being repaired and not out of the use of the car. The Court of Appeal (CA) allowed his appeal. It held that the wording of clause 1a was inadequate and had to be read with the certificate that the policy provided the cover required by law. As the policy had no geographical limitations, no such limitations were to be imposed in extending its cover to meet the statutory requirements. It accordingly construed the opening words of clause 1a to mean we will cover you for your legal responsibility if there is an accident involving your vehicle. The Supreme Court unanimously allows the appeal. Lord Hodge gives the only judgment. Having regard to the statutory requirements and the terms of the certificate, which disclose the insurers intention, the policy must be construed so that the third party cover meets the requirements of the RTA [24]. As the certificate did not purport to provide any additional cover in itself, and because the relevant legislation treats a certificate of insurance as distinct from a policy, it is therefore necessary to read words into clause 1a. However, the CA went too far by doing so in such a way as to extend cover to any accident involving Mr Holden's vehicle [25 31]. The first step is to ask what caused by, or arising out of, the use of the vehicle on a road or other public place means. In English case law, the statutory word use has been interpreted broadly to cover any situation where the owner has an element of control, management or operation of the vehicle on the road or in a public place. The reason is that even a parked car may be a hazard on a road or in such a place [32 34]. The words caused by, or arising out of the use of further extend the required cover, but there must be a reasonable limit to the causal chain [42 45]. The concept of use in EU law goes further, and is not confined to a road or other public place. It extends to any use of a vehicle as a means of transport. To comply with EU law, Parliament may need to reconsider the wording of the RTA. But the RTA cannot be read down to comply by excising the words on a road or other public place because this would go against the grain and thrust of the legislation. It is therefore the cover required by the RTA, not EU law, that must be read into the policy [35 41]. Where the context and background of a contract drives the courts to the conclusion that something has gone wrong with the language used, it may adopt a corrective construction where it is clear what a reasonable person would have understood the parties to have meant [46 47]. Here, the necessary correction is to extend the cover beyond what was expressly provided to that which the RTA requires, and no more [48 49]. The CA erred in not adopting this approach: the formulation involving your vehicle expanded the cover significantly beyond both the express terms of the clause and the requirements of the RTA, by removing the statutory causal link between use of the vehicle on a road or other public place and the accident [50]. Nor does the statutory rule that the interpretation most favourable to the consumer must prevail apply to a situation such as this, where the court is correcting a mistake in the language used and there is no doubt about the parties intended meaning [51]. The appropriate corrective construction is therefore to read the clause as if it said we will cover you for your legal responsibility if you have an accident in your vehicle or if there is an accident caused by or arising out of your use of your vehicle on a road or other public place and [52]. Mr Holden's accident does not fall within clause 1a as so interpreted. A vehicle being repaired on private property is not being used [53]. Furthermore, although the attempted repairs may have arisen out of the use of the car, the property damage did not. It was Mr Holden's alleged negligence in carrying out the repairs, not the prior use of the car as a means of transport, that caused the relevant damage [54 55].
The issue in this appeal is the role of the Court of Protection where there is a dispute between the providers or funders of health or social care services for a person who lacks the capacity to make decisions for himself and members of his family about what should be provided for him. N is a profoundly disabled man, now in his twenties, who is part of a large, close and loving family. His disabilities require that carers are in attendance throughout the day and night. His parents have been unable to co operate with the authorities in meeting his needs and a care order was made in respect of N when he was eight. This necessarily came to an end when he was eighteen. Shortly before that point, the local authority issued proceedings in the Court of Protection seeking orders pursuant to the Mental Capacity Act 2005 (the MCA) that it was in Ns best interests for N to reside in a care home and for contact with his parents to be regulated and supervised by the local authority. Responsibility for his care passed to the National Health Service when he turned 18. It was not in dispute that N lacked the capacity to make decisions about his residence or contact with his family, nor that for the time being the care home provides a safe and settled environment for N. By the time of the hearing the issues between Ns parents and the respondent clinical commissioning group had narrowed to whether N could visit the family home and whether his mother could assist care home staff with his intimate care when she was visiting him there. The respondent considered that neither was in Ns best interests: the first would require additional trained carers which it was not prepared to fund, and the care home staff had concerns about the second, after the parents had declined an offer of the necessary training in manual handling. At the hearing the respondent argued that the Court of Protection, on Ns behalf, could only decide between the available options and that it was inappropriate to try to obtain a best interests declaration to put pressure on the respondent to make further funding available. The judge agreed that she could not consider the parents proposals for this reason, and she declared that the contact plan proposed by the respondents was in Ns best interests. The Court of Appeal upheld the judges decision. The Supreme Court unanimously dismisses Ns parents appeal. Although the Court of Protection had jurisdiction to continue with the planned hearing, it did not have power to order the respondent to fund the parents plan, nor to order the actual care providers to do that which they were unwilling or unable to do. The judge had therefore been entitled to conclude that no useful purpose was served by continuing the hearing. Lady Hale, with whom all the Justices agree, gives the only judgment. The jurisdiction of the Court of Protection is limited to decisions that a person (P) could take if he had the capacity to do so. It is not to be equated with the jurisdiction of the courts to make orders in respect of children: under the MCA the court does not become the guardian of an adult who lacks capacity and the adult does not become the ward of the court [24]. The MCA focuses on capacity in relation to a specific decision or matter. Rather than granting declaratory relief available under section 15, it is better if possible for the court to make orders under section 16 [26]. There is scope under section 16 for the court to make a decision on Ps behalf, or to appoint a deputy to make such decisions, and the courts powers set out in section 17 include the power to decide where P is to live and what contact, if any, P is to have with any specified persons. These powers do not extend to decisions compelling third parties to accommodate, or meet, or to provide services or treatments for P [29]. The fact that the court has no greater power to take a decision than P would have had himself means that it too can only choose between the available options. It resembles the inability of the family court in children cases to oblige an unwilling parent to have the child to live with him, or to oblige an unwilling health service to provide a particular treatment for the child [35]. Nor can the court use its powers to put pressure upon a local authority to make particular decisions in exercise of its statutory powers and duties to provide public services. Such decisions can instead be challenged on judicial review principles, where the legal considerations for the public authority and for the court will be different from those under the MCA [37]. It was unfortunate in Ns case that the issue was described as one of jurisdiction since the Court of Protection clearly has jurisdiction to make declarations and orders under the MCA. The question was rather how Ns case should be handled in the light of the limited powers of the court [38]. The court has wide case management powers, which include the identification of issues which need full investigation, and it is entitled to take the view that no useful purpose will be served by holding a hearing to resolve other issues [41]. In this case, there were good reasons for thinking that Ns parents wishes were impracticable and that the respondent had good reasons for rejecting them. The Official Solicitor supported the respondent. It was unlikely that investigation would bring about any further modifications or consensus and it would be disproportionate to devote any more of the courts scarce resources to resolving matters [42]. Accordingly, since the court did not have power to order the respondent to fund what Ns parents wanted, nor to order the actual care providers to do that which they were unwilling or unable to do, the judge was entitle to conclude (as in substance she had) that no useful purpose would be served by continuing the hearing [44]. The appeal is therefore dismissed.
This appeal relates to a compensation scheme (the Scheme) set up in 1999 by the Department for Trade and Industry to provide tariff based compensation to miners employed by the British Coal Corporation (British Coal) who suffered from a medical condition called vibration white finger (VWF) as a result of excessive exposure to vibration through the use of vibratory tools. The Scheme provided for compensation to be paid for pain, suffering and loss of amenity (General Damages) and handicap on the labour market and other financial losses including past and/or future loss of earnings (Special Damages), which could include a services award to cover the need for assistance in performing specified domestic tasks. Rather than conducting an individual assessment of each claimants ability to carry out the specified tasks, the Scheme applied a presumption based on the condition reaching a certain level of severity. Mr Arthur Watkins was employed by British Coal as a miner from 1964 until 1985 and had developed VWF by the early 1980s. In 1999 he instructed the appellant to act for him in relation to a claim under the Scheme. Findings from a medical examination and interview indicated that Mr Watkins could obtain General Damages and qualified for the presumption in his favour that he satisfied the requirements for a services award. Mr Watkins sought a services award. In 2003 he was instead offered the tariff award for General Damages in full and final settlement of his claims. The appellant wrote to Mr Watkins on 18 February 2003 reporting the offer. After a telephone conversation with an employee of the appellant, Mr Watkins accepted the offer. In 2008, Mr Watkins instructed new solicitors to bring a claim against the appellant for professional negligence, on the basis that as a result of the appellants negligence Mr Watkins had lost the opportunity to bring a services claim under the Scheme. Mr Watkins died in 2014 and his daughter, Mrs Jean Edwards, was appointed to continue the claim on behalf of his estate. The first instance court held that the letter of 18 February 2003 and the advice given had been negligent and that had Mr Watkins received appropriate advice he would probably have rejected the offer and pursued his services claim. A jointly instructed medical expert, who had been instructed not to apply the presumption that would have applied under the Scheme, provided a report that concluded Mr Watkinss symptoms would have been insufficient to succeed on a services claim. The court therefore held that Mr Watkins had suffered no loss and dismissed the claim. Mr Watkins successfully appealed to the Court of Appeal, which decided that the trial judge had been wrong to determine the value of the services claim on the basis of evidence that would not have been available at the time of the notional claim. The appellant seeks to appeal that decision. The issue in the appeal is whether, in assessing the prospects of success of the negligence claim, the court should have taken account of the further medical report. The Supreme Court unanimously dismisses the appeal and remits the matter for assessment of the value of the loss of the opportunity to pursue the services claim. Lord Lloyd Jones gives the judgment, with which all members of the Court agree. In order to succeed in his claim in the tort of negligence, Mr Watkins had to establish a negligent breach of duty, causation and loss. The trial judge found that there had been a negligent breach of duty and that causation was established. Neither conclusion has been appealed [22]. To succeed, therefore, Mr Watkinss estate must prove loss, specifically that in losing the opportunity to pursue the claim Mr Watkins lost something of value, i.e. that his services claim had a real and substantial rather than merely a negligible prospect of success [23]. Mr Watkinss original claim was within the Scheme, and it is therefore necessary to consider whether the claim was of more than negligible value within the context of that Scheme [25]. The expert report was concerned with causation, not loss, and was prepared to assist in the assessment of whether Mr Watkinss failure to pursue a services claim arose from negligent advice or from an inability to assert truthfully that he had lost the ability to perform activities that would qualify him for a services award [27]. As a result, the expert was instructed not to apply the presumption used under the Scheme [28]. Had Mr Watkins pursued a services claim it would have proceeded on the basis of the Schemes procedures. He would have had to undergo only a limited second medical examination and there would have been no equivalent of the experts report. His entitlement to a services award would have been decided by the application of the Schemes presumption. There was no justification for considering a further medical examination and report which would not have been commissioned under the Scheme and therefore the judge erred in taking this into account [29]. Given other findings in the expert report, the court is unable to accept that the services claim had no chance of success so that the lost claim was of no value [30]. The first instance judge should have proceeded to assess the value of the lost claim on a loss of opportunity basis. The court therefore dismisses the appeal and remits the matter for that assessment [32].
The Respondent, Mrs Cox, worked as the catering manager at HM Prison Swansea. She was in charge of all aspects of the catering, including the operation of the kitchen producing meals for prisoners. She supervised prisoners who worked in the kitchen alongside other civilian catering staff. On 10 September 2007 Mrs Cox instructed some prisoners to take some kitchen supplies to the kitchen stores. During the course of this operation, one of the prisoners, Mr Inder, accidentally dropped a sack of rice onto Mrs Coxs back, injuring her. Mrs Cox brought a claim against the Ministry of Justice (MOJ) in the Swansea County Court. His Honour Judge Keyser QC found that Mr Inder was negligent, but dismissed the claim on the basis that the prison service, which is an executive agency of the Ministry of Justice, was not vicariously liable as the relationship between the prison service and Mr Inder was not akin to that between an employer and an employee. The Court of Appeal reversed the decision, finding that the prison service was vicariously liable for Mr Inders negligence. The question on the MOJs appeal to the Supreme Court concerns the sort of relationship which has to exist between an individual and a defendant before the defendant can be made vicariously liable in tort for the conduct of that individual. This case was heard alongside Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 which addresses the question of how the conduct of the individual has to be related to that relationship, in order for vicarious liability to be imposed on the defendant. The Supreme Court unanimously dismisses the Ministry of Justices appeal. Lord Reed gives the lead judgment, with which the other Justices agree. Lord Reed gives guidance on the sort of relationship which may give rise to vicarious liability. In Various Claimants v Catholic Child Welfare Society [2012] UKSC 56, (the Christian Brothers case), Lord Phillips mentioned five factors which make it fair, just and reasonable to impose vicarious liability on a defendant, where the defendant and the tortfeasor are not bound by a contract of employment [19]. Lord Reed explains that these five factors are not equally significant. The first factor, that the defendant is more likely to have the means to compensate the victim and can be expected to have insured against vicarious liability, is unlikely to be of independent significance in most cases [20]. The fifth factor, that the tortfeasor will have been under the control of the defendant, no longer has the significance it was sometimes considered to have. In modern life, it is not realistic to look for a right to direct how an employee should perform his duties as a necessary element in the employment relationship [21]. The remaining three factors are inter related. These are (1) the tort will have been committed as a result of activity being taken by the tortfeasor on behalf of the defendant; (2) the tortfeasors activity is likely to be part of the business activity of the defendant; and (3) the defendant, by employing the tortfeasor to carry on the activity, will have created the risk of the tort committed by the tortfeasor [22]. A relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the defendants business and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to that individual [24]. The general approach described in Christian Brothers is not confined to a special category of cases, but provides a basis for identifying the circumstances in which vicarious liability may in principle be imposed outside employment relationships. It extends the scope of vicarious liability beyond the responsibility of an employer for the acts and omissions of its employees in the course of their employment, but not to the extent of imposing such liability where a tortfeasors activities are entirely attributable to the conduct of a recognisably independent business of his own, or of a third party. This enables the law to maintain previous levels of protection for the victims of torts, despite changes in the legal relationships between enterprises and members of their workforces which may be motivated by factors extraneous to the enterprises activities or attendant risks [29]. The defendant need not be carrying on activities of a commercial nature. The benefit which it derives from the tortfeasors activities need not take the form of a profit. It is sufficient that there is a defendant carrying on activities in the furtherance of its own interests. The individual for whose conduct it may be vicariously liable must carry on activities assigned to him by the defendant as an integral part of its operation and for its benefit. The defendant must, by assigning those activities to the tortfeasor, have created a risk of his committing the tort [30]. A wide range of circumstances can satisfy those requirements, and defendants cannot avoid vicarious liability on the basis of arguments about the employment status of the tortfeasor [31]. Prisoners working in kitchens are integrated into the operation of the prison. The activities assigned to them form an integral part of the activities the prison carries on in the furtherance of its aims, in particular the provision of meals to prisoners. The fact that these aims serve the public interest is not a bar to the imposition of vicarious liability. The prison service places these prisoners in a position where there is a risk that they may commit a variety of negligent acts in carrying out assigned activities, which is recognised by the provision of health and safety training. The prisoners work under the direction of prison staff. Mrs Cox was injured as a result of Mr Inders negligence in carrying on activities assigned to him, and the prison service is therefore vicariously liable to her [32]. The MOJs arguments that requiring prisoners to work serves the purpose of rehabilitation and that the prisoners have no interest in furthering the objectives of the prison service are rejected. Rehabilitation is not the sole objective. Penal policy also aims to ensure that convicted prisoners contribute to the cost of their upkeep. When prisoners work in the prison kitchen they are integrated into the operation of the prison, and their activities are of direct and immediate benefit to the prison service itself [34]. The fact that a prisoner is required to undertake work for nominal wages binds him into a closer relationship with the prison service than would be the case for an employee, and strengthens the case for imposing vicarious liability [35]. Payment of a wage is not essential for the imposition of vicarious liability [37]. Nor is it necessary for the prison to have an unrestricted pool from which to select a workforce. The prisoners who work in the kitchen are selected with particular care, having regard to the risks involved [38]. In cases where the criteria set out in Christian Brothers are satisfied, it should not generally be necessary to re assess the fairness, justice and reasonableness of the result. The criteria are designed to ensure that vicarious liability is imposed where it is fair, just and reasonable to do so [41].
A patient, who was clinically asymptomatic at the time, requested that his GP refer him for a heart screen on 30 May 2008. The GP referred him for an electrocardiogram (ECG) test in July 2008. The test reported negative for ischaemic heart disease, and no further action was taken. The patient made further complaints of chest pain to a locum doctor on 10 December 2008, and so his GP referred him to a chest pain clinic 5 days later. The clinic declined to see him because of his earlier negative test, and sent a report to the practice on 20 December, which was not marked urgent or reviewed. The patient attended the practice again on 6 January 2009 enquiring as to why he had not received an appointment. The GP referred him for another ECG, but the patient died of a myocardial infarction later that day. The patients widow complained to the Northern Ireland Commissioner for Complaints (the Complaints Commissioner). Following an investigation, the Commissioner held that the practice had failed to provide a reasonable level of care and treatment and was guilty of maladministration. He recommended that the GP make a payment of 10,000 to the widow. The GP refused to make the payment, and so the Commissioner indicated that he would lay a special report about the matter before the Northern Ireland Assembly. The Commissioners recommendation was upheld at first instance but quashed by a majority of the Court of Appeal. The Commissioner appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal by the Complaints Commissioner, holding that the Commissioner had (i) no power to recommend the payment of a money sum against an individual who was not a public authority in an investigation under article 8 of the Commissioner for Complaints (Northern Ireland) Order 1996 and (ii) no power to make a special report drawing the attention of the legislature to such a persons failure to comply with a recommendation. Lord Sumption gives the judgment, with which the other Justices agree. The Complaints Commissioners power to investigate the complaint were derived from article 8 of the Commissioner for Complaints (Northern Ireland) Order 1996, which deals with complaints against individuals, like the GP in this case, providing professional services under contracts or other consensual arrangements with the NHS [11]. The short answer to this appeal is that the Complaints Commissioner may not, under article 9 of the 1996 Order, carry out any investigations in respect of which the complainant has a remedy by way of proceedings in a court of law, unless it is not reasonable to expect the complainant to resort to law. The widow had such a remedy but the Commissioner proceeded with the investigation because she said that she only wished to find out what had gone wrong (and not to obtain money). It was not open to the Commissioner, having proceeded on that basis, to recommend a payment to her [17]. More generally, the Complaints Commissioner does not have the power to recommend monetary redress against individuals in investigations under article 8. This is because his recommendations are not binding as a matter of private law, and a private individual such as a GP has no relevant duties in public law. Furthermore, a private individual has no means of effectively challenging the Commissioners findings on the merits of the case before a court [20, 24]. Nor does the Complaints Commissioner have a power to make a special report in default of payment. Whilst the Parliamentary Commissioner and Assembly Ombudsman for Northern Ireland have such a power as against departments or public bodies that have been ordered to provide financial redress, the Complaints Commissioner does not. This is because the Commissioners relationship with the legislature is different to that of other statutory ombudsmen in the United Kingdom. The Commissioner is not an officer of the legislature, unlike the Assembly Ombudsman for Northern Ireland, but receives complaints from and reports to the complainant and individuals or bodies whose conduct is at issue. He has no powers of compulsion, and limited powers to use information discovered during investigations for the purposes of enforcement [20 21, 26 28]. Article 19 of the 1996 Order is concerned with the presentation of annual reports before the Assembly, and not reports on individual cases such as this [29]. Lord Sumption further comments on the substance of the Commissioners recommendation that the GP pay 10,000 to the widow. A monetary recommendation must be rational and capable of explanation. The figure in the Commissioners report appears to have been plucked out of the air: it does not offer a coherent explanation or calculation, or identify the precise failings in respect of which it was made [30].
The Respondent was vaccinated on 3 November 1992 with a vaccine (the Product) manufactured in France by a French company, now known as Aventis Pasteur SA (APSA). On 18 September 1992 APSA sent a consignment of the vaccine, including the Product, to its then wholly owned subsidiary, Aventis Pasteur MSD Ltd (APMSD), in England. APMSD acted as a United Kingdom distributor for APSAs products. APMSD received the consignment on 22 September 1992 and sold part of it, including the Product, on an unknown date. The Product was eventually used to vaccinate the Respondent. On 1 August 2001 the Respondent began proceedings under section 2 of the Consumer Protection Act 1987 (CPA) against APMSD, alleging that the Product was defective and had caused him brain damage. On 16 October 2002 the Respondent issued separate proceedings against APSA also under section 2 of the CPA. Relying on section 11(3) of the Limitation Act 1980 (the LA) and Article 11 of Council Directive 85/374/EEC of 25 July 1985 (the Directive), APSA defended this action on the basis that it had been raised more than ten years after APSA had put the Product into circulation, which APSA alleged was 22 September 1992 at the latest. Broadly, Article 11 provides that there is a ten year time limit for initiating proceedings against the producer (as defined in the Directive) of a product. Faced with this defence, the Respondent sought an order that APSA be substituted as a defendant in place of APMSD in the proceedings against APMSD, relying on section 35(5)(b) and (6)(a) of the LA. These provisions allow a new party to be substituted for a party whose name was given in any claim made in the original action in mistake. APSA contended that, in so far as English law permitted such substitution after the expiry of the time limit, it was inconsistent with Article 11. The High Court made a preliminary reference to the European Court of Justice (ECJ). So far as the power to substitute one producer for another as defendant was concerned, the House of Lords (to which the case eventually came) could not reach a unanimous view as to the effect of the ECJs judgment. The House of Lords therefore referred the question back to the ECJ. The answer returned by the ECJ is now clear: once ten years have passed since a producer put a product into circulation, that producer cannot be sued unless proceedings have been taken against it within the ten year period. The Respondent now accepts that he cannot use section 35 of the LA as a basis for substituting APSA for APMSD as the defendant in the present proceedings. The Respondent submits, however, that in its judgment the ECJ indicated a different basis on which he can actually make the desired substitution, namely, that in proceedings instituted within the ten year period against the wholly owned subsidiary of the producer, that producer can be substituted for that subsidiary if the domestic court finds that the putting into circulation of the product in question was, in fact, determined by that producer. The dispute between the parties therefore turns on the interpretation of that part of the ECJs judgment. The Supreme Court unanimously allowed the appeal and set aside paragraph 1 of the order of Teare J dated 20 October 2006 substituting APSA for APMSD in the present action. Lord Rodger gave the judgment of the Court. There is nothing to suggest that, when providing the additional guidance which is the subject of the dispute in the present case, the ECJ was intending to depart from the principled approach which it had formulated earlier in its judgment, namely, that Article 11 precluded national legislation being applied in a way which permitted a producer to be sued after the expiry of the ten year limitation period as defendant in proceedings brought within that period against another person (para 17). In venturing to give the additional guidance, the ECJ was following the lead of the Advocate General. The Advocate General had given some thought to how Article 11 should be applied in a case like the present, where APSA transferred the Product to a distributor, APMSD, which was its wholly owned subsidiary. In doing so, the Advocate General had referred back to the ECJs judgment on the first reference where the ECJ had held that a product is put into circulation when it is taken out of the manufacturing process operated by the producer and enters a marketing process in the form in which it is offered to the public in order to be used or consumed (paras 18 20). The ECJ, in its judgment following the first reference, had rejected an approach that was based on the formal legal relationship between the parent manufacturing producer and the subsidiary distributor. The national court had to look at all the links between the two entities and decide on that basis whether they were so close that, for the purposes of Article 11, the concept of the manufacturing producer (which would apply to APSA) really included the distributor (in this case, APMSD). In that event, even if the Product were transferred from one to the other, this would not mean that it had been taken out of the manufacturing process operated by the producer (para 22). The Advocate General made use of that part of the ECJs analysis from the first reference to show when a distribution subsidiary could be so closely involved with the parent producer that they could, in effect, be regarded as one for the purposes of Article 11 (so that suing the subsidiary would be tantamount to suing the parent). In concrete terms, if that were the position in this case, by suing APMSD within the ten year period, the Respondent would also have sued APSA within that period. So the Article 11 time bar would not bite and the Respondent could, if he wished, substitute APSA for APMSD as defendant in the present action (para 23). It is with this background in mind that the ECJ gave its additional guidance in the second reference. There is nothing to suggest that, in giving that guidance, it was intending to depart in any way from the analysis in its first reference (para 27). Certainly, to judge from the Advocate Generals analysis, the only way in which the principle that had just been laid down in relation to the substitution of APSA for APMSD could be maintained and yet APSA could be substituted for APMSD would be if, by suing APMSD, the Respondent had in effect sued APSA (para 28). The ECJ was therefore indicating, in giving its guidance, that the domestic court was to consider, in accordance with domestic rules of proof, whether the manufacturer, APSA, was in fact controlling APMSD and determining when it put the Product into circulation. The fact that APSA was a wholly owned subsidiary was simply one by no means decisive factor to be taken into account by the domestic court when assessing how closely the subsidiary was involved with its parents business as a producer. All the circumstances would have to be taken into account. If APSA was indeed in a position to decide when the Product was distributed, then APMSD would be integrated into the manufacturing process and would be so tightly controlled by APSA that proceedings against APMSD could properly be regarded as proceedings against the parent company, APSA. Hence, the manufacturing company could be substituted for the subsidiary (para 34).
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].
On 9 September 2004 the appellant, Steve Allison, was convicted after trial in the High Court at Glasgow of four contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971. In effect, he was found guilty of being concerned in the supplying of cocaine and three other controlled drugs. The trial judge sentenced him to 8 years imprisonment. The appellant appealed against both his conviction and sentence. On 7 November 2008 the appeal court (Lord Osborne, Lady Paton and Lord Philip) refused his appeal against conviction, leaving his appeal against sentence to be heard on a date to be fixed. One of his grounds of appeal, which was first advanced in an additional Note of Appeal, related to the record of a police interview of a John Stronach. Mr Stronach had died before the trial and the Crown introduced the interview into evidence in accordance with the procedure in section 259(5) of the Criminal Procedure (Scotland) Act 1995. Neither before nor during the trial did the Crown disclose to the defence that Mr Stronach had a number of previous convictions and that there were outstanding charges against him. One of the outstanding cases was under the Misuse of Drugs Act and related to events covered by the trial and it was therefore known to the appellants legal advisers. The Crown disclosed the previous convictions and the other outstanding charges only while the appellants appeal was pending before the appeal court. This prompted the appellant to argue that the Crowns failure to disclose to the defence the existence of all the previous convictions and outstanding charges was incompatible with his article 6 Convention rights. As a result, the defence had been unable to prepare and conduct their defence properly and appellant did not receive a fair trial. When dismissing the appellants appeal, the appeal court accepted that the failure by the Crown to disclose Mr Stronachs previous convictions had been incompatible with the appellants article 6(1) rights. Having considered the circumstances of the case, however, the appeal court was not persuaded that the Crowns failure had resulted in an unfair trial and hence a miscarriage of justice. The appeal court drew a distinction between Mr Stronachs previous convictions and the outstanding charges against him. Because of the presumption of innocence, the appeal court did not consider that the existence of outstanding charges could be of importance in connection with the preparation of a defence or with any challenge that might be mounted to the credibility of a witness. The Supreme Court unanimously dismisses the appeal, with Lord Rodger delivering the leading judgment of the Court. The Court disagrees with the appeal courts view in relation to outstanding charges. It is, of course, trite that an individual charged with crime is presumed to be innocent until proven guilty. But that is not to say that he has to be treated in all respects as if he were an innocent person against whom no charge has been brought (para 9). The Privy Councils decision in Holland v HM Advocate 2005 1 SC (PC) 3, that the Crown should disclose outstanding charges of Crown witnesses of which they are aware, simply reflects the common sense position that just as in everyday life judges or jurors who have to assess the credibility of a witness may properly take into account not only the fact that the witness has been convicted of various offences, but also the fact that he has been charged with others. This approach merely reflects what appears to have been recognised as the proper practice in Scottish courts for more than 170 years (para 10). In the present case, the Crown does not deny that the outstanding charges against Mr Stronach might have weakened the Crown case by casting doubt on his character or credibility. Indeed the Crown accepts that, in accordance with Holland and HM Advocate v Murtagh 2009 SLT 1060, the failure to disclose the outstanding charges to the defence was incompatible with the appellants article 6(1) rights (para 14). The only live issue in the appeal, therefore, is the actual significance, in the whole circumstances of the case, of the Crowns failure to disclose the outstanding charges. Having considered the circumstances of the case against the appellant, the Court is not persuaded that, if defence counsel had been able to deploy Mr Stronachs outstanding charges as well as his previous convictions, this would have made any material difference (para 22). The Court is satisfied that there is no real possibility that the jury would have come to a different verdict on the charges against the appellant if they had been made aware, not only of Mr Stonachs previous convictions, but of the outstanding charges against him as well. There has therefore been no miscarriage of justice (para 23).
This case is about the application of EU food hygiene rules to certain chicken and pork products manufactured by the appellant, Newby Foods Ltd (Newby). Specifically, the appeal concerns whether these products should be classified as mechanically separated meat (MSM) within point 1.14 of Annex I to EU Regulation No 853/2004 (the Regulation). Newby argues they should not be classified as MSM. The Food Standards Agency (FSA) contends that they should be so classified. It is now common for the butchering of animal carcases in the food industry across the EU to be carried out by machines. These often leave a significant amount of meat on the bone. Under the Regulation, there are two types of MSM: (1) high pressure MSM and (2) low pressure MSM. The specific hygiene requirements for both are set by paragraphs 3 4, Chapter III, Section V, Annex III in the Regulation. Further, MSM cannot count towards food meat content and attracts specific labelling requirements. MSM produced from lamb and beef bones is prohibited entirely under EU law. Consequently, the commercial value of MSM is much lower than that of other fresh meat products. Newby has developed a machine to remove residual meat from carcase bones. It uses this to process residual meat on beef, lamb and pork bones after the initial boning of the animal carcases and on chicken carcases after the breasts have first been removed by other mechanical processes. The Newby process has two stages: (1) meat bearing bones are forced into contact to remove meat by shearing and (2) meat so removed is then passed through a machine producing a product similar to minced meat. Newbys meat product was previously known in the UK as desinewed meat (DSM). It was widely regarded as distinct from MSM, including by the FSA. DSM is not a category recognised in EU law. On 4 April 2012, following criticism by the Commission, the FSA issued a moratorium with the result that DSM could (1) no longer be produced from residual meat on beef and lamb bones and (2) only be produced from residual meat on chicken and pork bones if classified and labelled as MSM. Newby brought judicial review proceedings challenging the moratorium. On 16 July 2013, Edwards Stuart J in the High Court made a preliminary reference to the Court of Justice of the European Union (CJEU) on the definition of MSM in point 1.14 of Annex I of the Regulation (point 1.14). The CJEU made a preliminary ruling on 16 October 2014 (the CJEU judgment). After the CJEU judgment, Newby abandoned its challenge to the moratorium as to lamb and beef carcases, but not pork and chicken. On 23 March 2016, Edwards Stuart J concluded that the pork and chicken meat products resulting from stage (1) of Newbys process are not MSM. He also found that such DSM was not a product derived from bone scrapings. The Court of Appeal allowed the appeal and dismissed the challenge to the moratorium, but upheld the judges finding as to bone scrapings. Newby now appeals to the Supreme Court on the proper interpretation of point 1.14 in light of the CJEU judgment. The Supreme Court unanimously dismisses the appeal. Lord Sales gives the lead judgment, with which all members of the Court agree. The proper interpretation of point 1.14 requires a correct application of the guidance provided in the CJEU judgment [51]. In its preliminary ruling, the CJEU identified three cumulative criteria in defining MSM for the purposes of point 1.14: (1) the use of bones from which the intact muscles have already been detached, or of poultry carcases, to which meat remains attached; (2) the use of methods of mechanical separation to recover that meat; and (3) the loss or modification of the muscle fibre structure of the meat recovered through the use of those processes [26]. The CJEU added that any meat product which satisfies those three criteria must be classified as MSM, irrespective of the degree of loss or modification of the muscle fibre structure, provided the loss or modification is greater than that which is strictly confined to the cutting point (the cutting point qualification) [26]. In the Supreme Court, it was common ground between the parties that Newbys pork and chicken products meet the first two criteria for categorisation of MSM within point 1.14 [52]. The appeal thus turns on whether Newbys products meet criterion (3), in light of the cutting point qualification [52]. As identified in the courts below, there are two main possible readings of what the CJEU meant by cutting point: (1) on a narrower reading, it refers to the cutting of intact muscles, or (2) on a more expansive reading, it refers to the points at which the meat has been severed or separated during the process of recovering it [39]. Edwards Stuart J favoured the more expansive reading [42 43], while the Court of Appeal preferred the narrower reading [45 46]. This Court finds that, on the proper interpretation of the CJEU judgment, the narrower reading is correct [51]. First, the way in which the CJEU formulated criterion (1) reflects the words removing meat from flesh bearing bones after boning or from poultry carcases in point 1.14 [54]. The CJEUs formulation speaks of meat remaining attached to poultry carcases, rather than simply referring to poultry carcases, which would include all (not merely some of) the meat on the carcase [55]. Secondly, the CJEU clearly held that the concept of MSM does not depend on it being shown that the process referred to in point 1.14 results in a loss or modification of the muscle fibre structure which is significant, rejecting outright Newbys case [56]. On the CJEUs approach, the dividing line is much clearer. Meat removed from a carcase will not be MSM if it is removed by mechanical means in the first phase of cutting meat from the whole carcase, but will generally be MSM if it is later removed by mechanical means [57]. This clear distinction avoids the need for microscopic investigation [57]. Thirdly, the legal analysis is not affected by evidence (1) that chicken carcases will occasionally be subjected to Newbys process without the breasts first being removed or (2) that the wishbone is usually cut out of the breast meat before mechanical removal of whole chicken breasts [61 63]. Lastly and importantly, the CJEU judgment made it explicit that, applying the definition in point 1.14, Newbys products fall to be categorised as MSM [66]. The CJEU was entitled to express its view on the application of point 1.14 to this case and there is nothing to call into question its analysis [69 75]. After the CJEU judgment, the position is acte clair and no further reference to the CJEU is needed [76]. The Court reaches the above conclusions having seen, but not relied on, further evidence submitted by three of the four interveners [49 50]. The Court refuses permission to admit this further evidence due to unfairness to the FSA and, in any event, this evidence is not considered to affect the outcome [50].
This appeal concerns the liability for Value Added Tax (VAT) of a company known as Med, which marketed hotel accommodation in the Mediterranean and the Caribbean through a website. An hotelier who wished his hotel to be marketed by Med had to enter into a written agreement with Med (the Accommodation Agreement). When a potential customer identified a hotel at which she wished to stay, she would book a holiday through a form on the website, which set out standard booking conditions (the website terms). The customer had to pay the whole of the sum she agreed with Med to pay for the holiday (the gross sum) before arriving at the hotel. However, Med only paid the hotel a lower sum (the net sum) for the holiday after it had ended. VAT is an EU tax levied on the supply of goods or services. By article 2.1(c) of Directive 2006/112/EC (the Principal VAT Directive) VAT is liable to be levied on the supply of services for consideration within the territory of a Member State by a taxable person acting as such. Article 45 states that The place of the supply of services connected with immovable propertyshall be the place where the property is located. The application of article 45 to travel agents could result in their having to be registered in many member states, and so articles 306 310 contain a special scheme relating to travel agents. Article 306 differentiates between two categories of travel agent, namely (a) those who deal with customers in their own name and use supplies of goods or services provided by other taxable persons, in the provision of travel facilities and (b) those who act solely as intermediaries (referred to for convenience as, respectively, article 306.1(a) and article 306.1(b)), and provides for a special VAT scheme for transactions carried out by travel agents who fall within article 306.1(a). The Commissioners for Her Majestys Revenue and Customs (HMRC) assessed Med for VAT on the basis that Med was a travel agent that deals with customers in its own name within the meaning of article 306.1(a). On that basis, it was agreed that Med would be liable for VAT on the gross sum paid by the customer to Med. Med challenged this assessment, on the ground that it was a travel agent acting solely as an intermediary within the meaning of article 306.1(b). On this approach, any VAT would be due to the Greek taxation authorities. The First Tier Tribunal upheld HMRCs analysis. Morgan J allowed Meds appeal, but HMRCs subsequent appeal to the Court of Appeal was successful. The Supreme Court unanimously allows the appeal. Lord Neuberger gives the only judgment, with which the rest of the court agrees. Med was acting as an intermediary rather than in its own name, and so falls within article 306.1(b). Consequently, the Supreme Court discharges the order of the Court of Appeal and restores the order of Morgan J. The outcome of this appeal turns on the question whether Meds activities in relation to the provision of hotel rooms to customers fell within article 306.1(a) or article 306.1(b) of the Principal Tax Directive [20]. What article 306 means and how it is to be applied is a matter of EU law, a topic on which the decisions of the Court of Justice of the European Community (CJEU) are binding on national courts [22]. However, insofar as the provisions of article 306 depend upon the precise nature and character of the contractual relationship between two or more parties, that issue must be determined by reference to the proper law of the contract or contracts concerned [23]. The domestic law Where parties have entered into a written agreement which appears on its face to be intended to govern the relationship between them, in order to determine the legal and commercial nature of that relationship it is necessary to interpret the agreement in order to identify the parties respective rights and obligations, unless it is established that it constitutes a sham [31]. While it is not possible to take into account the subsequent behaviour or statements of the parties as an aid to interpreting their written agreement, this may be invoked for other reasons: (i) to support the contention that the written agreement was sham; (ii) to support a claim for rectification; (iii) to support a claim that the written agreement was subsequently varied, or rescinded and replaced by a subsequent contract; or (iv) to establish that the written agreement represented only part of the parties contractual relationship [33]. It is not suggested that either the Accommodation Agreement or the website terms is a sham or liable to rectification. Accordingly, one must start by characterising the nature of the relationship between Med, the customer, and the hotel, in the light of the Accommodation Agreement and the website terms (the contractual documentation). One must then consider whether this characterisation represents the economic reality of the situation, and, finally, one must determine the result of this characterisation under article 306 [34]. The contractual documentation makes it clear that, both as between Med and the hotelier, and as between Med and the customer, the hotel room is provided by the hotelier to the customer through the agency of Med. The customer pays the gross sum to the hotelier on the basis that the amount by which it exceeds the net sum is to be Meds commission as agent [36]. None of the provisions of the contractual documentation relied on by HMRC is inconsistent with Med acting as the hoteliers agent: they merely reflect the relative bargaining positions of Med and the hoteliers. They do not alter the nature of the relationship between Med, the hotelier and the customer [37] [44]. The EU law It is clear from the guidance given by CJEU that the concepts of an intermediary and an agent are similar, as are the concepts of a person dealing in his own name and a principal [55]. In deciding whether article 306.1(a) or 306.1(b) applies, the approach laid down by the CJEU in order to determine whether a person such as Med is an intermediary is very similar to the approach applied in English law to determine whether Med was an agent [56]. For the same reasons that the contractual documentation supports the notion that Med was an agent, it also supports the conclusion that Med was an intermediary, and the economic reality does not assist a contrary view [57]. Once it has been decided that Med was the hoteliers agent in relation to the supply of accommodation to customers as a matter of English law, it follows, at least on the facts of this case, that it was an intermediary for the purpose of article 306.1 [58].
In 2005, the Assets Recovery Agency (ARA) obtained an interim receiving order over certain properties acquired by Mrs Szepietowskis husband with money allegedly obtained through drug trafficking, mortgage fraud and concealment from the Revenue. In November 2006, the ARA began civil proceedings against Mr and Mrs Szepietowski (the Szepietowskis), seeking to confiscate 20 properties on the basis that they constituted recoverable property within section 266 of the Proceeds of Crime Act 2002 (the 2002 Act). These properties included Ashford House (the Szepietowskis home), two properties known as Thames Street, two properties known as Church Street, and two properties known as Claygate. These properties were all registered in the name of Mrs Szepietowski and had been charged to RBS for a debt of about 3.225m (the RBS debt). On 16 January 2008, the Szepietowskis and the ARA settled the proceedings on terms contained in documents attached to a consent order (including a Settlement Deed). Pursuant to the terms of the Settlement Deed, (a) Thames Street and Church Street were sold and the proceeds paid over in part satisfaction of the RBS debt, and (b) in September 2009, Mrs Szepietowski granted a charge over Claygate (the 2009 Charge) to the Serious Organised Crime Agency (SOCA, as the ARA had by this point become) entitling SOCA to recover a sum of up to 1.24m from the proceeds of sale of Claygate. The 2009 Charge (a) was a second charge over Claygate as it was subject to the RBS debt, and (b) contained various provisions including a statement that Mrs Szepietowski had no personal liability to pay any money to SOCA. In late 2009, Mrs Szepietowski sold Claygate for 2.44m and, once the net proceeds of sale of Claygate had been used to pay off the RBS debt, all that was left to satisfy SOCAs rights under the 2009 Charge was 1,324.16. SOCA then sought to invoke the right to marshal against Ashford House. The right to marshal classically applies when there are two or more creditors, each of whom is owed a debt by the same debtor, but one of whom has security in the form of a charge on more than one property (the first mortgagee), whilst the other has security in the form of an inferior charge on only one of those properties (the second mortgagee). If the first mortgagee chooses to enforce his charge against the property which secures both debts (the common property), the second mortgagee is able to enforce his charge against the property which only secured the first mortgagees debt (the other property). SOCA argued that, as the proceeds of sale of Claygate (the common property, which was subject to the charge in favour of RBS and the 2009 Charge in favour of SOCA) were used to pay off what was due to RBS, it was entitled under the marshalling principle to look to Ashford House (the other property, which was only subject to the charge in favour of RBS), in order to obtain payment of the sum which it would have obtained on the sale of Claygate if RBS had sold Ashford House and used the proceeds of sale to clear the RBS debt. Mrs Szepietowski argued that SOCA should not be allowed to marshal because (a) the 2009 Charge did not secure a debt from her to SOCA and/or (b) the provisions of the Settlement Deed and the 2009 Charge, coupled with the circumstances in which they were executed, demonstrated that marshalling was precluded. Henderson J held that SOCAs marshalling claim was well founded ([2010] EWHC 2570 (Ch)) and the Court of Appeal agreed ([2011] EWCA Civ 856). The Supreme Court unanimously allows the appeal by Mrs Szepietowski. Lord Neuberger, with whom Lord Sumption and Lord Reed agree, holds that the 2009 Charge did not create, or acknowledge the existence of, any debt from Mrs Szepietowski, or anyone else, to SOCA, save that under its terms, she was bound to pay SOCA an amount of up to 1.24m out of such sum if any, as remained from the proceeds of sale of Claygate after any prior claim had been met [40 43]. As a matter of principle, marshalling is not available to a second mortgagee where the common property does not secure a debt due from the mortgagor, but is merely available as security for whatever amount the second mortgagee can extract from that property. In such a case, there is nothing from which the right to marshal against the other property can arise [46 50]. Not least because marshalling is an equitable remedy, whether it is available in any particular case may depend on the circumstances. However, where there is no surviving debt due from the mortgagor to the second mortgagee after the sale and distribution of proceeds of sale of the common property, in the absence of express words which permit or envisage marshalling, it is hard to conceive how marshalling would be available [56 58]. If, contrary to this conclusion, marshalling is in principle available to a second mortgagee where there is no underlying debt, Mrs Szepietowskis appeal would still have been allowed. Where facts arise which potentially give rise to the right to marshal, the correct approach is to ask whether, in the perception of an objective reasonable bystander at the date of the grant of the second mortgage, taking into account (i) the terms of the second mortgage, (ii) any contract or other arrangement which gave rise to it, (iii) what passed between the parties prior to its execution, and (iv) all the admissible surrounding facts, it is reasonable to conclude that the second mortgagee was nonetheless not intended to be able to marshal [60 62]. The statutory background to, and the terms of, the 2009 Charge and of the Settlement Deed, coupled with all the surrounding circumstances demonstrate that the parties did not intend SOCA to have the right to marshal [64 72]. The fact that Ashford House was Mrs Szepietowskis home is one of the relevant background facts for that purpose, but it was insufficient on its own to prevent a right to marshal if such a right otherwise existed. Where the requirements of the right to marshal are otherwise present, it would require a contractually enforceable obligation, or something close thereto, on the first mortgagee to enforce against the common property in priority to the other property, for the second mortgagee to lose the right to marshal [73 77]. Lord Carnwath and Lord Hughes would allow the appeal on the narrower basis, namely that, read against the statutory background provided by the 2002 Act, and the fact that the 2009 Charge excluded any personal liability on the part of Mrs Szepietowski, that Charge impliedly excluded recourse to any source for payment other than those identified, and in particular excluded the right to marshal.
This appeal is the lead case in a number of appeals concerned with liability to pay National Insurance Contributions (NICs) and, in particular, with the interpretation of the phrase in section 6(1) of the Social Security Contributions and Benefits Act 1992, [w]here in any tax week earnings are paid to or for the benefit of an earner. The case focuses on the meaning of the word earnings in that phrase, and whether it covers a payment by the appellant, FML, of an employers contribution to a Funded Unapproved Retirement Benefits Scheme [1]. The scheme was set up by FML by trust deed on 11 April 2002 to provide certain benefits to its employees and directors. The trust provided that upon a members retirement from service the trustees were to apply the accumulated fund in providing the member with a pension for life or such other relevant benefits as might be agreed. On the members death the trustees were to realise the accumulated fund and apply the net proceeds to or for the benefit of a defined discretionary class of beneficiary. On the same day, Mr McHugh, a shareholder and director of FML, asked to become a member of the scheme. He informed the trustees that he wished them to exercise their discretion in favour of his wife in the event of his death. FML made an initial cash contribution to the scheme of 1,000 and transferred to it Treasury Stock with the nominal value of 162,000, both for Mr McHughs benefit. He has been the only member of the scheme and has received no relevant benefits from it, as defined in section 612 of the Income and Corporation Taxes Act 1988 [2]. He was 54 years old when the transfers were made, and FML specified his retirement age to be his 60th birthday. However as he controlled FML this date could be brought forward for the purposes of the scheme [3]. The question was whether the transfers were payments of earnings to or for the benefit of Mr McHugh within the meaning of section 6 of the 1992 Act. It was agreed that the payment was for his benefit, but was it earnings? HMRC decided that it was, and that FML was therefore liable to pay Class 1 NICs on the value of the transfer. FMLs appeal to the Upper Tribunal was successful, but the Court of Appeal reinstated HMRCs decision [4 5]. FML appealed to the Supreme Court. Departing from its position before the Court of Appeal, FML accepted that earnings had a wider meaning than emoluments in income tax legislation. It submitted that the payment of earnings under section 6 did not extend to the employers transfer to a trust of funds or assets in which the earner had at the time of the transfer only a contingent interest [6]. In a judgment delivered by Lord Hodge, the Supreme Court unanimously allows the appeal. Lord Hodge examines the legislative history behind the UKs system of national insurance, which shows that NICs have indeed been levied on a basis that is different from the emoluments on which income tax has been raised [7 13]. He considers it significant that Parliament, in the National Insurance Act 1946, chose to use the word earnings rather than emoluments. The latter word has been interpreted by the courts as referring to actual money payments and benefits in kind capable of being turned into money by the recipient [10]. Lord Hodge refers to primary legislation in 1911 and 1946 and also subordinate legislation for the purpose of demonstrating that the scheme of NICs legislation by which earnings includes non convertible benefits in kind (unless they are disregarded) has existed since 1946 [11 13]. As a result of the assumptions on which the subordinate legislation had been framed, HMRC had to argue that earnings are paid to an earner both when assets are transferred to a pension scheme to be held on a trust and also when payments are made from the trust fund. HMRC looked to the payment and not to what the earner received. The sum paid into the trust was part of Mr McHughs remuneration, going into a trust fund for the sole benefit of Mr McHugh and his wife. Payments out to him from the trust would also, it was submitted, be earnings as they were also payments to him in respect of his employment. Double counting would be avoided only as a result of specific disregards in the subordinate legislation [15]. Lord Hodge considers that remarkable position to be wrong for three reasons: First, the ordinary man on the underground would consider it counter intuitive that a person would earn remuneration both when his employer paid money into a trust to create a fund for his benefit and again when at a later date the trust fund was paid out to him. If one gives words their ordinary meaning, it is clear that a retired earner receives earnings in respect of his employment in the form of deferred remuneration when he receives his pension. The payment from the trust is deferred earnings; the payment into it is not earnings [16]. Secondly, HMRCs view could only be sustained by looking exclusively at what was paid and ignoring what the earner received. Such an interpretation denudes the word earnings of any meaning, so the phrase earnings are paid would amount to payments are made [17]. The third reason relates to the method of computation. By treating the payment into the trust as earnings, HMRC fail to take into account the existence of the contingency. The transfer gave Mr McHugh not cash and treasury stock, but only the entitlement to a future pension or relevant benefits once the condition of reaching retirement age had been purified. The hypothetical value to his entitlement would not be the value at the date of the transfer of the assets paid into the fund, but the value of Mr McHughs contingent right to the trust fund such as it would be at his retirement age. That would not be a simple exercise, and HMRCs approach fails to address what it was that Mr McHugh received when the transfer was made [18]. Lord Hodge concludes that the transfer to the trust was not the payment of earnings for section 6(1) purposes [19]. The court allows FMLs appeal and reinstates the judgment of the Upper Tribunal [22].
As originally enacted, s.33 and Part 1 of Schedule 2 to the Road Traffic Offenders Act 1988 (the RTOA) provided that the maximum sentence that a Sheriff sitting summarily could impose in respect of the offence of driving while disqualified (s.103(1)(b) of the Road Traffic Act 1988 (the RTA)) was six months imprisonment or the statutory maximum fine or both. If the offence was prosecuted on indictment, the maximum sentence was 12 months imprisonment or a fine or both. Following a recommendation by a committee appointed to review the provision of summary justice in Scotland that the criminal jurisdiction of judges sitting summarily should be increased to a maximum of 12 months, the Criminal Proceedings etc (Reform)(Scotland) Act 2007 (the 2007 Act) was enacted by the Scottish Parliament. S.45 of that Act increased the maximum sentence that sheriffs sitting summarily could impose for the offence of driving while disqualified to 12 months imprisonment. On 17 December 2007 and 14 May 2008, respectively, in summary proceedings Sean Martin and Ross Miller were each sentenced by Sheriffs to periods in excess of six months imprisonment for driving while disqualified contrary to s.103(1)(b) of the RTA. They both sought to challenge their sentences on the basis that amending the relevant provisions of the 2007 Act were outside the legislative competence of the Scottish Parliament. The High Court of Justiciary (the HCJ) dismissed the appeals, holding that the increase in the sentencing power of Sheriffs sitting summarily by s.45 of the 2007 Act was within the Scottish Parliaments legislative competence. The HCJ gave the Appellants permission to appeal to the Supreme Court. The Supreme Court, by a majority of three to two (Lord Rodger and Lord Kerr dissenting), dismisses the appeals. The Court holds that the provision in question was within the Scottish Parliaments legislative competence. Lord Hope delivered the leading judgment on behalf of the majority. Majority Judgments The answer to the question raised by this case is to be found by applying the rules laid down in s 29 and Part 1 of Schedule 4 the Scotland Act 1998 which determine whether a provision of an Act is outside the Scottish Parliaments legislative competence. Three questions arise in this case: (1) whether the purpose of s.45 was to modify Scots criminal law as defined in s.126(5) of the Scotland Act; (2) if so, whether its purpose was to make the law apply consistently to reserved matters and otherwise; and (3) if (1) and (2) are answered in the affirmative, whether the rule that s.45 modified was special to a reserved matter within the meaning of para 2(3) of Schedule 4 [para [22]]. The purpose of s.45 of the Criminal Proceedings etc (Reform)(Scotland) 2007 Act The available material conclusively demonstrates that the purpose of s.45 was to contribute to the reform of summary justice by reducing pressure on the higher courts. The jurisdiction of a Sheriff is defined by the penalties which he can impose and his powers in this respect are quintessentially matter of Scots criminal law. S.45 was directed to a rule of Scots criminal law, so it does not relate to a reserved matter within the meaning of s.29(2)(b) of the Scotland Act 1998 [para [31]]. Was s.46 concerned to ensure that law applied consistently between reserved and non reserved matters? S.45 is one of a group of related provisions contained in the 2007 Act increasing the summary sentencing powers of Sheriffs in respect of a number of common law and statutory offences. If the 2007 Act had increased the sentencing power in respect of common law but not statutory offences the reform would have been incomplete and confusing. This problem would have been exacerbated if the reform had attempted to distinguish between statutory offences related to reserved matters and those which did not. The purpose of s.45 was to ensure that the law relating to the sentencing powers of Sheriffs was consistent as between offences concerning reserved matters and otherwise. Consequently, s.45 is not related to a reserved matter for the purpose of s.29(4) of the Scotland Act 1998 [paras [32] [33]]. Is the sentencing jurisdiction of a Sheriff in relation to road traffic offences special to the Road Traffic Offenders Act 1988 and the Road Traffic Act 1988? In identifying the rule of law that is being modified for the purpose of the test established by para 2(3) of Schedule 4, regard may be had to the purpose of the legislative provision effecting the modification [para [34]]. The key to the decision in this case lies in identifying the rule that is being modified. This is achieved by examining the purpose of the legislative provision which is under scrutiny [para [38] and [39]]. S.33 and Part 1 of Schedule 2 to the RTOA and s.103(1)(b) of the RTA contain, in effect, two rules of Scots criminal law. Firstly, that the overall maximum sentence in respect of driving while disqualified is 12 months. Secondly, the route by which the maximum sentence can be imposed. The former provision is plainly a rule that is special to the RTOA and RTA and is a reserved matter that the Scottish Parliament has no power to modify. However, the latter is a rule concerning Scots criminal jurisdiction and procedure which is not reserved. The change in the law effected by s.45 does not alter the maximum period of imprisonment for the offence of driving while disqualified. It relates to the procedure which determines whether the sheriff has power to impose that sentence. The rule of Scots law being modified is the rule of Scots criminal procedure. This rule of procedure is not special to the RTOA or RTA [para [37]]. Had it been necessary to address the point, para 3 of Schedule 4 (which provides that legislation having incidental or minor effects upon reserved matters shall be within competence) could not, contrary to the conclusion reached by the HCJ, render s.45 within the Scottish Parliaments legislative competence. s.45 constituted an important modification to a rule of Scots criminal procedure that could not be regarded as incidental or consequential [para [40]]. Accordingly the court holds that s.45 is within the legislative competence of the Scottish Parliament. The appeals are dismissed and remitted to the HCJ for any further orders that may be required [para [43]]. Dissenting Judgments Lord Rodger agreed that s.45 did not relate to a reserved matter [para [119]]. But he would have held that the provision of the RTOA prescribing the maximum term of imprisonment for a summary conviction for driving while disqualified is special to a reserved matter, in the sense that the United Kingdom Parliament has chosen it specifically for that offence. Lord Rodger did not agree that the purpose of the modifying provision can be a relevant consideration in identifying the rule of Scots law that is being modified for the purpose of para 2(3) of Schedule 4 [para [143]]. He also did not agree that the purpose of a provision which purports to modify a rule of Scots law can be used to determine whether that rule is special to a reserved matter [para [145]]. Lord Kerr agreed with Lord Rodger.
Until 1960 Cyprus was a colony of the UK. In 1960, pursuant to the Cyprus Act, the Treaty concerning the Establishment of the Republic of Cyprus between the UK, Turkey Greece and Cyprus and an exchange of notes between the UK and Cyprus, Cyprus became an independent Republic. The territory of the new republic was composed of the island of Cyprus with the exception of two areas Akrotiri and Dhekelia which were retained under UK sovereignty as Sovereign Base Areas (SBAs) for the purposes of accommodating military bases. Article 40(1) of the United Nations Convention Relating to the Status of Refugees (1951) (the Convention) as modified by the Protocol Relating to the Status of Refugees (1967) (the Protocol) states that: any State may, at the time of signature, ratification or accession, declare that this Convention shall extend to all or any of the territories for the international relations of which it is responsible. On 24 October 1956, prior to Cypriot independence, the UK notified the UN Secretary General that, subject to certain reservations, the Convention would be extended to Cyprus. Post independence, Cyprus notified the Secretary General in 1963 that it had acceded to the Convention and in 1968 to the Protocol. No notification has ever been made by the UK specifically in relation to the SBAs post Cypriot independence. The Respondents are six refugees. In October 1998 they boarded a ship in Lebanon which was bound for Italy but which foundered off the coast of Cyprus. On 8 October 75 passengers including the respondents were airlifted to safety by RAF helicopters and brought to Akrotiri in south western Cyprus. In due course they were accepted as lawful refugees under the Convention by the SBA Administration, and permitted to remain. The SBA Administration sought to persuade the UK government to allow them to resettle in the UK but this was not acceptable to Ministers. Ever since then they have lived in disused and highly unsatisfactory service accommodation in the SBA, while continuing to press for their admission to the UK, on the basis that this is the only practicable way for the UK to discharge its obligations to them under the Refugee Convention. The arrival of the Respondents in the SBAs followed by further arrivals in 2000 and 2001 gave rise to arguments between the SBAs and Cyprus about which of them was to be responsible for the refugees and asylum seekers among them. These arguments were resolved for future arrivals on 20 February 2003 when the UK and Cyprus entered into a Memorandum of Understanding relating to illegal migrants and asylum seekers (the 2003 Memorandum). The agreement provided, in summary, for the full range of governmental services to be provided to refugees by Cyprus but at the expense of the UK. Shortly after the 2003 Memorandum, the SBA Administrator enacted the Refugee Ordinance 2003 which gave effect within the SBAs to rights substantially corresponding to those conferred by the Convention. The 2003 Memorandum did not apply to refugees such as the Respondents who had arrived in the SBAs prior to the date of its conclusion. The Appellants case is that in 2005 the Cypriot authorities agreed with the SBA Administration that they would deal with refugees recognised as such by the SBA Administration in accordance with the 2003 Memorandum irrespective of the date of their arrival in the SBAs. This agreement, however, has never been reduced to writing. The Respondents were unwilling for responsibility for them under the Convention to be transferred to the Republic, and did not accept that this could lawfully be done without their consent. They continued to press for admission to the UK, latterly with the support of the UN High Commissioner for Refugees (UNHCR). The unhappy course of the ensuing dispute is summarised in the judgment. It came to a head when in 2013, the Respondents formally asked to be admitted to the UK. In a decision dated 25 November 2014, the Secretary of State refused entry. The Respondents challenged that decision on the basis that it was inconsistent with the Convention. The High Court held that the Convention did not extend to the SBAs as a matter of international law, but quashed the Secretary of States decision on the basis that she had failed to take into account concerns raised by the UNHCR. The Court of Appeal overturned that decision, declared that the Convention did extend to the SBAs and directed the Secretary of State to make a fresh decision on whether to admit the Respondents to the UK, having regard to the UKs obligations under the Convention. On 6 July 2017, the Secretary of State made a fresh decision refusing to admit the Respondents on the basis that she considered that they could resettle in the Cyprus or, alternatively that the UK could comply with its obligations by arranging for the Respondents to be supported by Cyprus as agreed in 2005. The broad question at issue in the appeal is whether the Respondents are entitled or should be permitted to be resettled in the UK on the basis of the Convention or that in the exceptional circumstances of the case the Secretary of State should exercise his discretion to admit them. The specific issues identified by the Court as essential to the resolution of the appeal are as follows [60]: (i) Does the Convention (as extended by the 1967 Protocol) apply to the SBAs? (ii) Does the Convention by its terms entitle the Respondents to be resettled in the UK? (iii) Was the Memorandum of Understanding of 2003 a valid performance of the Convention obligations for those within its scope? In particular: a. Was the UK in principle entitled to fulfil its obligations under the Convention by arranging for support to be provided by Cyprus? b. If so, were the terms of the Memorandum of Understanding (including the 2003 Refugee Ordinance) a proper basis on which to do so? a. Was the UK entitled in 2005 to make the same arrangements in respect of the Respondents without their consent given their lawful and accepted presence as refugees in the SBAs since 2000 (it being accepted that the Respondents are entitled to continue to live in the SBAs [107])? b. If so, was the 2005 agreement with Cyprus a legally effective means of doing so, having regard to its informality and the absence of incorporation into SBA law? c. Has the support of Cyprus for the Respondents in accordance with the 2005 agreement been available in practice, and can it be assured in the future? (v) If the 2005 agreement, for whatever reason, was not a legally effective means of discharging the UKs obligations to the Respondents under the Convention, or if such support has not been available in practice, what are the consequences, in terms of rights or remedies potentially available in these proceedings, and how should the court give effect to them in its order? (iv) If the answer to (iii) is yes: The Supreme Court gives an interim judgment. It is final as to the issues covered (issues (i) (iii)), but interim in the sense that other issues will have to be decided (issues (iv) (v)) before the appeal can be finally determined. Certain critical and difficult issues had not been clearly identified in the agreed statement of facts and issues, nor adequately covered by the written or oral submissions. In fairness to the parties and in order to reach a fully informed conclusion, the court sees no alternative but to invite further submissions on the matters identified in the interim judgment. Issue (i) Until 1960 the Convention unquestionably applied to the territory now comprised in the SBAs [63]. Treaty obligations cease to apply to a territory where it secedes from the state which entered into the treaty, or where a formerly dependent territory becomes independent of the parent state which entered into the treaty [64]. The Cyprus Act 1960 did not alter the status of the SBAs but merely excluded them from the transfer of territory to the new Republic of Cyprus when it became independent [69]. As a matter of international law the Convention continues to apply to the SBAs by virtue of the declaration in 1956, in the same way it applied to the colony of Cyprus before 1960. Article VII(4) of the Protocol provides that where a state made a declaration under Article 40(1) or (2) of the Convention extending its application to a territory for whose international relations it was responsible, and then acceded to the Protocol, the declaration should apply to the Protocol also, unless that state notified the Secretary General to the contrary. No further declaration was required to extend the Protocol to dependent territories where the original Convention applied. The UK acceded to the Protocol without any reservation relating to the SBAs. Since the Convention continued to apply to the SBAs after 1960, the Protocol applies there also [71]. Issue (ii) The Convention does not entitle the Respondents to be resettled in the UK metropolitan territory. A states duties under the Convention to a refugee reaching a particular territory for whose international relations the state is responsible are in principle and in normal circumstances limited to providing and securing the refugees Convention rights in that context [89]. The widespread use of colonial clauses in international treaties reflects the principle that for certain purposes, including the application of treaties, dependent territories of a state are treated as having a status in international law distinct from that of the parent states metropolitan territory [76]. Like many multilateral treaties, the Convention was framed to apply only to a states home country or metropolitan territory unless extended to other territories under Article 40 [78]. Article 40 suggests that for the purposes of the Convention the metropolitan territory and its dependent territories are to be treated as separate units [80]. Similarly, other articles of the Convention indicate that the metropolitan territory is to be treated as distinct such as Articles 15, 17 to 24, 26, 19, 32 and 34 [81 88]. Issue (iii) The Respondents submission that the 2003 Memorandum was not a proper basis for the provision of the support for refugees required by the Convention is rejected [103]. There are uniquely close practical links between the SBAs and Cyprus [91 93]. The Convention does refer to the appropriate treatment of refugees in a States territory and the provision of facilities to refugees there. But nothing in the Convention is expressly directed to a situation like that which exists in Cyprus and nothing in it is expressly inconsistent with the nature of the arrangements which the UK has made with Cyprus [94]. International courts and tribunals will interpret a treaty in line with Article 31(1) of the Vienna Convention on the Law of Treaties. They will endeavour to place the factual situation as it has developed since the inception of the treaty within the context of the preserved and developing treaty relationship in order to achieve its object and purpose in so far as that is feasible [95]. Subject to issues about the precise interpretation of certain articles, the court does not find objection in principle to some, most or all of the supporting facilities required for refugees being provided by co operative and effective arrangements with the Republic. The more difficult issues are as to its application to those already accepted as lawful refugees [96]. Issues (iv) and (v) have been left for future determination and further submissions. The parties may be able to reach agreement without further argument on those issues [104 114]. So far as they remain in dispute the appeal should be relisted for further submissions as soon as practicable [115].
Olympic Airlines SA was wound up by a court in Athens on 2 October 2009. The main liquidation proceedings are ongoing in Greece. The company pension scheme has a 16m deficit. Olympic Airlines SA is liable to make good the deficit by s 75 of the Pensions Act 1995. It is unlikely to be able to do so. Members of the pension scheme are eligible for compensation under the Pensions Act 2004 from the UKs Pension Protection Fund in respect of the shortfall. Such compensation is payable from the date when a qualifying insolvency event occurred. There are two possible dates in this case. The first possible date is 20 July 2010, which is when the trustees of the pension scheme presented a winding up petition in England. The winding up of a company under the Insolvency Act 1986 is a qualifying insolvency event: Pensions Act 2004, s 121(3)(g). English courts have jurisdiction to wind up a foreign company under the Insolvency Act 1986. However, under EU Regulation 1346/2000 on Insolvency Proceedings (the Regulation), where (as here) the company has its centre of main interests in another member state of the European Union, the English court is only permitted to wind it up if it has an establishment in England, meaning any place of operations where the debtor carries out a non transitory economic activity with human means and goods (article 2(h)). The second possible date is 2 October 2014, which is the fifth anniversary of the commencement of the proceedings in Greece. The possibility of treating this date as the date of a qualifying insolvency event in the specific circumstances of this case was created by a change in legislation subsequent to the Court of Appeals decision in this case refusing to make a winding up order on the basis of lack of jurisdiction: Pension Fund (Entry Rules) (Amendment) Regulations 2014. The trustees of the pension scheme would prefer compensation to be treated as payable from the earlier of those two dates, namely 20 July 2010. The only question for the court is therefore whether Olympic Airlines SA had an establishment in the UK on 20 July 2010 entitling the English court to make a winding up order under the Regulation, so that it can be said that a qualifying insolvency event occurred on that date. By 20 July 2010, Olympic Airlines SA had: closed all of its offices in the UK except for its head office at 11 Conduit Street in London; ceased all commercial operations; and terminated the contracts of all remaining UK staff except for the General Manager, the Purchasing Manager, and an accounts clerk, who were retained on short term ad hoc contracts to implement instructions from the liquidator in Athens, supervise the disposal of the companys assets in the UK, and pay bills and conduct other administration relating to the head office building. At first instance, the judge held that these activities constituted non transitory economic activities and Olympic Airlines SA therefore had an establishment in the UK entitling him to make the winding up order. The Court of Appeal disagreed and held that the remaining activity consisted only in the winding up of the companys affairs, which was not enough to give the court jurisdiction to make the order. The trustees of the pension scheme appeal from the Court of Appeals decision. The Supreme Court unanimously dismisses the appeal. Lord Sumption gives the only judgment. Lord Sumption holds that the Regulations definition of establishment, which must be read as a whole, envisages a fixed place of business and business activity carried on there consisting in dealings with third parties, and not merely acts of internal administration [13]. For example, disposal of stock in trade would clearly satisfy the definition, but mere internal administration of the winding up including administration of remaining premises in the UK would not [14]. Olympic Airlines SA was not carrying on business activity at its head office on 20 July 2010 and did not therefore have an establishment in the UK at that date [16]. The requirement of showing at least some subsisting business with third parties is acte clair and so no reference to the Court of Justice of the European Union is necessary [16].
In 2006 the United States of America (USA) closed a watercraft repair centre (the Base) which it maintained in Hampshire. Mrs Nolan was employed at the Base by the appellant and was dismissed for redundancy the day before it closed. Mrs Nolan complained that the appellant had failed to consult with any employee representative when proposing to dismiss her. The appellant denies any such duty. Mrs Nolan brought Employment Tribunal proceedings under Part IV Chapter II of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) as amended by The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 (SI 1995/2587) (the 1995 Regulations). TULCRA as originally enacted by Parliament went beyond the requirements of European law under Council Directive 77/187/EEC (or now under Council Directive 98/59/EEC) in extending a right to be consulted prior to redundancies to employees of public administrative bodies, such as those at the Base. But it fell short of European law in that it was confined to circumstances where employees enjoyed union representation recognised by the employer. In 1994 the Court of Justice identified this failure, and in consequence the Secretary of State relying on the power to make secondary legislation conferred by section 2(2) of the European Communities Act 1972 (the 1972 Act) made the 1995 Regulations which amended TULCRA to require employee representatives to be designated for consultation purposes in all situations covered by TULCRA. On the basis of TULCRA as amended, Mrs Nolan succeeded before the Employment Tribunal and was granted an order for remuneration for a one month period. This Employment Appeal Tribunal upheld the order. The Court of Appeal referred to the Court of Justice the question whether the obligation to consult arose on a proposal or only on a decision to close the base (the UK Coal Mining and Fujitsu issue: see [2008] ICR 163 and Case C 44/08; [2009] ECR I 8163). The Court of Justice declined jurisdiction, holding that (i) Directive 98/59/EEC being an internal market measure covering economic activities, national defence and the dismissal of staff at a military base are outside its scope; and (ii) it was not appropriate to rule on a question relating to a public administrative establishment to which the Directive did not apply. The Court of Appeal ordered a further hearing of the UK Coal Mining/Fujitsu issues. The USA appeals to the Supreme Court on three grounds: (1) TULCRA should in the light of the Court of Justices ruling be construed as not applying to employment by a public administrative establishment, at least as regards non commercial (jure imperii) activity such as closure of a military base decided at the highest level in Washington; (2) the same result should be reached in the light of principles of international law and EU law; (3) In any event, the Secretary of State exceeded the powers conferred by s.2 of the 1972 Act when making the 1995 Regulations, in so far as these went further than EU law requires by protecting workers without trade union representation employed by public administrative establishments. The Supreme Court dismisses the USAs appeal by a majority of 4:1. The case is remitted to the Court of Appeal for determination, as necessary, of the UK Coal/ Fujitsu issues. Lord Mance gives the lead judgment, with which Lord Neuberger, Lady Hale and Lord Reed agree. Lord Carnwath dissents. Ground (1): That the present situation might not have been foreseen by the legislature is not a reason for reading into clear legislation a specific exemption which would not reflect the scope of any exemption in EU law, especially when the foreign state could have invoked state immunity but did not do so in time [24, 25]. The USAs first submission is rejected [26]. Ground (2): Jurisdiction is primarily territorial in both international and domestic law [29 30]. TULCRA regulates the procedures for dismissal on the grounds of redundancy of employees at institutions in England, Wales and Scotland. The UK is not legislating extra territorially when it covers proposals or decisions about domestic redundancies developed or taken abroad [31]. TULCRA contains no exception for such cases. The USAs submission would render largely otiose the procedures and time for a plea of state immunity. State immunity is an adjudicative bar separate from a foreign states underlying responsibility. The USAs case elides two distinct principles. [35 38]. This appeal concerns situations covered by TULCRA but falling outside EU law, so the USA cannot rely on EU law as entitling it to protection from discrimination [45]. Further EU law does not protect third country nationals from discrimination or therefore non member states [46 47]. The USAs second submission is therefore also rejected [47]. Ground (3): The power conferred under s.2(2) of the 1972 Act to make delegated legislation for the purpose of dealing with matters related to any obligation of the United Kingdom under EU law envisages a close link between the content of any such legislation and the relevant obligation [61]. While each case must be considered on its merits, the domestic extension of an EU regime into areas outside or specifically excluded from that regime may well fall outside s.2(2) [66]. In the present case, however, Parliament had by its original enactment of TULCRA established a unified domestic regime drawing no distinction between different parts of TULCRA within or outside the EUs internal market competence. In these unusual circumstances, Parliament could be taken to have created for the domestic purposes of s.2(2) of the 1972 Act a relationship which the Secretary of State was entitled to take into account and continue by and in the 1995 Regulations [72]. The submission that the 1995 Regulations went beyond the Secretary of States powers in protecting employees of public administrative establishments without trade union representation would therefore also be rejected [77 73]. Lord Carnwath (dissenting) considers that the relationship between TULCRA and the Directive created by domestic statute has no obvious relevance to the purpose of the 1972 Act [94 95]. Some limitation is necessary to ensure that the power to legislate outside the normal parliamentary process is kept within bounds [96]. Lord Carnwath would dismiss the appeals on the first two issues, but allow the appeal on the third issue [100 101]. 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
This case relates to the liquidation of Letham Grange Development Company Limited (LGDC) and the question whether its sale of a hotel and adjoining golf courses (the subjects) was a gratuitous alienation, ie. a property transaction conducted for significantly less than market value. Section 242 of the Insolvency Act 1986 provides that an alienation made by a company within two years of its winding up is challengeable by the liquidator. On such a challenge being brought, the court shall grant decree of reduction setting the alienation aside, unless, in particular, the alienation was made for adequate consideration. The section contains a proviso preserving any right or interest acquired in good faith and for value from or through the transferee in the alienation. [3] The subjects were bought by LGDC in November 1994 for just over 2m. In February 2001, it sold them to the second appellant, NSL. The consideration recorded in the disposition was 248,100. LGDC went into liquidation in December 2002. The value of the subjects at the time was estimated at about 1.8m. In January 2003, NSL granted a standard security (a charge) over the subjects in favour of Foxworth Investments Limited. Later that year, the liquidator of LGDC, Mr Henderson, began proceedings against NSL seeking the reduction of the 2001 disposition on the grounds that the sale was a gratuitous alienation, an unfair preference or a fraudulent preference. He obtained a decree by default in 2009 when NSL failed to be represented at the proof (trial) [2]. The liquidator then brought these proceedings, seeking reduction of Foxworths standard security. He argues that Foxworth cannot bring itself within the section 242 proviso since it knew at the time when it obtained the standard security that LGDC was in liquidation and that the sale by LGDC to NSL was open to challenge under section 242. The relevant decisions of all three companies were made by their common director and directing mind, Mr Liu [3]. The appellants claim that, in addition to the sale price recorded in the disposition, NSL had also assumed debts of 1.85m owed by LGDC to Mr Liu and his family, so that the sale was not a gratuitous alienation. This, they say, brought Foxworth within the scope of the proviso, having obtained the standard security in good faith and for value [4]. The Lord Ordinary, Lord Glennie, rejected the liquidators case that the sale was a gratuitous alienation. The liquidator sought to establish that the documentation relating to the assumption of the LGDC debts had not been prepared on the dates it bore, but had been produced subsequently to support a false case that the assumption formed part of the consideration for the sale of the subjects [22]. But Lord Glennie accepted Mr Lius evidence on the point [23]. Lord Glennies decision was reversed on appeal by an Extra Division of the Inner House of the Court of Session, which found that the judge had erred in law. In the absence of a finding that the assumption of any debts by NSL had occurred at the time of the sale and had therefore formed part of the consideration, he had not been entitled to hold that there had been adequate consideration or (given Mr Lius knowledge of the circumstances) that Foxworth had obtained the standard security in good faith [6]. The Extra Division also considered that Lord Glennie had failed to give satisfactory reasons for the factual conclusions he had reached on the evidence, particularly on whether there had, at the time of the sale, been an assumption by NSL of LGDCs debts to Mr Liu. The Extra Division concluded that the sale had been a gratuitous alienation and that Foxworth had not obtained its rights under the standard security in good faith or for value [7]. The court unanimously allows the appeal by Foxworth and NSL. Lord Reed delivers the main judgment, with which the other Justices agree. Lord Reed sets out the principles governing review of a trial courts findings of fact [58 69]. The Extra Division was correct to identify that an appellate court can interfere where satisfied that the trial judge has gone plainly wrong, but it erred in concluding that this criterion was met in the present case [62]. Plainly does not refer to the degree of confidence felt by the appellate court that it would not have reached the same conclusion as the trial judge. What matters is whether the decision under appeal is one that no reasonable judge could have reached [62]; that the decision cannot reasonably be explained or justified [66 68]. Lord Glennie did not err in law; he clearly understood the critical issue under section 242(4)(b) to be whether the alienation was made for adequate consideration [22]. He was aware that an obligation on the part of NSL could only constitute part of the consideration for the sale if it was undertaken as the counterpart of the obligations undertaken by LGDC [25]. His opinion had understandably focused on the question on which the parties had joined issue, namely whether not when any obligation was taken to assume the LGDC debts [26]. Lord Glennie was entitled to accept Mr Lius evidence on this point [27]. Lord Reed rejects the criticisms made of Lord Glennies treatment of the evidence [29 57]. The fact that Lord Glennie was less impressed by the liquidators case than the Extra Division reflected a careful and nuanced assessment of the evidence, and an understanding of the commercial realities [29]. He had taken into account the various criticisms of Mr Lius evidence before concluding that his evidence was credible and reliable. The weight given to the material evidence was pre eminently a matter for the Lord Ordinary, subject only to the requirement that his findings be such as might reasonably be made [57]. Before the Supreme Court, the parties accepted that no prejudice would be occasioned by remitting the question of expenses in the Outer House to the Lord Ordinary [72]. They are invited to make submissions as to the appropriate form of order [73].
The benefit cap was introduced in the Welfare Reform Act 2012 and implemented by the Benefit Cap (Housing Benefit) Regulations 2012 (the Regulations). The main issue in this appeal is whether the Regulations are unlawful under the Human Rights Act 1998. It is argued that the cap has an unjustifiably discriminatory impact on women in relation to their right to the peaceful enjoyment of their possessions, contrary to article 14 of the European Convention on Human Rights taken with article 1 of the First Protocol to the ECHR (A1P1). The cap applies where the total entitlement of a single person or couple to specified welfare benefits exceeds an amount which represents the average weekly earnings of a working household in Great Britain, net of tax and national insurance contributions. The Regulations fix the cap at 350 a week for a single claimant without dependent children, and 500 for all other claimants. Benefits taken into account include housing benefit, child benefit and child tax credit. The Governments justification for the scheme is that it is necessary (i) to set a reasonable limit on the extent to which the state will support non working families from public funds; (ii) provide members of households of working age with a greater incentive to work and (iii) achieve savings in public expenditure. The cap does not apply to persons or families entitled to working tax credit. Receipt of this benefit requires a lone parent responsible for a child to work at least 16 hours a week, and a couple with a child to work a total of 24 hours a week, with one of them working at least 16 hours. The cap affects a higher number of women than men. That is because the majority of non working households receiving the highest levels of benefits are single parent households, and most single parents are women. The appellants are two lone mothers and their youngest children. The application of the cap reduced SGs weekly income from the specified benefits by 75, and NSs by 55. The courts below held that the indirectly discriminatory impact of the scheme upon lone parents, and therefore women, could be justified and that the scheme was therefore lawful. The Supreme Court dismisses the appeal by a majority of 3 2. Lord Reed gives the lead judgment, with which Lord Hughes agrees. Lord Carnwath concurs with the result but for different reasons. Lady Hale and Lord Kerr each give dissenting judgments. Lord Reed notes that it was conceded that the Regulations result, indirectly, in differential treatment of men and women in relation to welfare benefits, and that the benefits constitute possessions falling within A1P1. [60 61] The question is whether the cap is a proportionate means of meeting legitimate aims. Lord Reed accepts that the aims of the cap are legitimate. [63 66] In relation to proportionality, the appellants argued that the aim of setting a reasonable limit to benefits could be achieved by setting the cap at the average income of working households inclusive of in work benefits, rather than their average earnings exclusive of benefits. Lord Reed notes, however, that the Act requires the cap to be set by reference to earnings. [67 69] The appellants also argued that the savings in public expenditure were marginal. Lord Reed notes that, although the short term savings are a small proportion of the total welfare budget, they nevertheless contribute towards deficit reduction. The cap is also intended to change behaviour over the longer term. Other arguments focused on the impact of the cap on the families affected. Lord Reed notes that the cap for households with children is equivalent to a gross annual salary of 35,000, which is higher than the earnings of half of the UKs working households. Whether the cap should be higher is a political question. It is not the function of the courts to determine how much public expenditure should be devoted to welfare benefits. Importantly, affected households were given advance notice and assistance to enable them to adjust. [70 75] The differential impact results from including child related benefits in the cap. Excluding these would reduce savings by 80 90% and compromise the achievement of the caps legitimate aims. No credible means were suggested by which those aims might be achieved without affecting more women than men. [76 77] Other arguments relied on the United Nations Convention on the Rights of the Child (UNCRC), which has not been incorporated by Parliament into UK law, but which can be relevant to the application of the ECHR. Strasbourg cases do not support the argument that the cap impinges on the article 8 ECHR rights of children, and that therefore article 3(1) UNCRC obliged the Government to treat the best interests of children as a primary consideration. [78 80] Although the UNCRC can be relevant to questions concerning the rights of children under the ECHR, the present context is one of alleged discrimination against women in the enjoyment of their A1P1 property rights. [86 89] The argument that the Regulations were vitiated by the Governments misinterpretation of article 3(1) was no stronger. It is firmly established that UK courts cannot interpret or apply treaties to which Parliament has not given effect. [90] Lord Reed further reasons that the question of proportionality involves controversial issues of social and economic policy, with major implications for public spending. It is therefore necessary for the court to give due weight to the considered assessment of democratically elected institutions. Unless manifestly without reasonable foundation, their assessment should be respected by the court. Many of the issues in the appeal were considered by Parliament before it approved the Regulations. The Governments view, endorsed by Parliament, that achieving its aims was sufficiently important to justify making the Regulations, despite the differential impact on men and women, was not manifestly without reasonable foundation. [92 96] Lord Hughes adds that Strasbourgs case law is a long way from saying that article 3(1) is relevant to justification of any kind of discrimination, whether or not the rights, upbringing, or family life of a child are affected. [144] Lord Carnwath agrees that article 3(1) UNCRC has no role in justifying discrimination against women: the treatment of the child does not depend on the sex of their parent. [129] It is trite law that unincorporated treaties like the UNCRC have no direct effect in domestic law unless and until incorporated by statute. [115] On compliance with article 3(1), he reasons that the Governments reliance on limiting expenditure and the need for a clear upper limit on benefits ignores the distinctive statutory purpose of child related benefits: to meet the needs of children as individuals. The cap means children lose these benefits for reasons unrelated to their own needs. If excluding those benefits emasculates the scheme, this raises questions about the viability of a scheme so dependent on child related benefits. However, though the Secretary of State failed to show how the Regulations comply with article 3(1), it is in the political, rather than the legal, arena that the consequences should be played out. [123 127, 133] Lady Hale, in her dissenting judgment, reasons that the question is whether the legitimate aims of the cap justify the discrimination involved in its implementation. [189] The manifestly without reasonable foundation test applies to both the aims of the interference with property rights, and the proportionality of the discriminatory means employed. [209] The UNCRC has not yet been generally translated into domestic law, but Strasbourg case law shows that article 3(1) UNCRC is relevant to proportionality and discrimination as well as informing the substantive content of Convention rights, even in cases where the discrimination is not against the children but their mothers. [215 222] What has to be considered is whether the benefit cap as it applies to lone parents can be justified independently of its discriminatory effects. In considering that, it is necessary to ask whether proper account has been taken of the best interests of the children affected, i.e. whether the Government complied with article 3(1). It is clear to Lady Hale that it did not. The cap deprives some children of provision for their basic needs, which cannot be in their best interests. It does so in order to incentivise their parents to seek work, but discriminates against lone parents, who are least likely to be able to do so. [223 226] In light of article 3(1), the indirect sex discrimination inherent in the caps implementation is not a proportionate way of achieving its aims. [228] Lord Kerr, in his dissenting judgment, considers that the UNCRC can be directly enforceable in domestic law. [255 256] He further reasons that a mothers personality is defined not simply by her gender but by her role as carer for her children, so that justification of a discriminatory measure must directly address the impact on the children of lone mothers. [264 265]
Mr Aaron Hunt, born on 17 April 1991, suffers from ADHD, learning difficulties and behavioural problems. As a result, North Somerset Council (the Council) are statutorily required, so far as reasonably practicable, to secure access for him to sufficient educational and recreational leisure time activities for the improvement of his well being. On 21 February 2012, the Council made a decision to approve a reduction of 364,793 from its youth services budget for 2012/2013. Mr Hunt, concerned about the impact this would have on the provision of services for young persons with disabilities, brought judicial review proceedings of that decision. He argued that the decision was unlawful on two grounds: (1) the Council had failed its duty under section 507B of the Education Act 1996 to take properly into account the views of young persons with difficulties such as his; and, (2) it failed to fulfil its public sector equality duty under section 149 of the Equality Act 2010 to have due regard to the statutory equality needs of disabled individuals. He sought a declaration that the Councils decision was unlawful and an order that the decision be quashed. At the end of the High Court hearing, but before giving judgment, Wyn Williams J asked the parties barristers for written submissions on relief in the event that he found in favour of Mr Hunt. The note provided by Mr Hunts barristers stated that he sought a quashing order but made no reference to a declaration. Ultimately, Wyn Williams J rejected Mr Hunts challenges to the legality of the decision. Mr Hunt was ordered to pay the Councils costs, subject to a proviso against enforcement of the costs order without further permission of the Court. The Court of Appeal allowed Mr Hunts appeal on both grounds. It, nonetheless, refused to make a quashing order, considering that it was too late to unwind the entire revenue budget for the financial year. It also ordered him to pay half of the Councils costs. Mr Hunts barristers did not make alternative submissions about declaratory relief so no mention was made of this in the Court of Appeals judgment. Mr Hunts barristers did not raise this omission on receiving the judgment in draft and did not make suggestions as to the appropriate form of the order in light of the judgment. The Councils barristers prepared a draft order stating that the appeal was dismissed. Mr Hunts barristers stated in written submissions that the parties were agreed on the order except in relation to costs. Mr Hunt appealed to the Supreme Court on the basis that the Court of Appeal should have made: (1) a declaration that the Council had failed in its statutory obligations; and, (2) an order for costs in his favour. The Supreme Court unanimously allows the appeal in relation to costs but dismisses it in relation to declaratory relief. Lord Toulson delivers the judgment of the Court. Declaratory relief Lord Toulson rejects Mr Hunts argument that the Court of Appeal should have made a declaration of its own initiative. The judgment of the Court of Appeal itself contained a ruling that the Council acted unlawfully and the authority of its judgment would be no greater or less by making or not making a declaration in the form of the order to the same effect. A court is not required to make declaratory orders where, although a finding of illegality has been made, it is not asked to make a declaratory order by a partys experienced legal representatives [12]. Costs In relation to costs, although courts have wide discretion in this matter, the Court of Appeal fell into error by treating the Council as the successful party. As the Court of Appeal rejected the Councils case on the two issues, it was only successful in the limited sense that the findings of failure came too late to do anything about what had happened in the past, although this occurred through no fault on Mr Hunts part. It was unsuccessful on the substantive issues regarding its statutory responsibilities [15]. Indeed, the Court of Appeal judgment contained a lesson of general application for local authorities regarding the discharge by committee members of the Councils equality duty. In such circumstances, where a local authority is shown to have acted unlawfully, some good reason would have to be shown why a claimant should not recover his reasonable costs [16]. Despite this, the reasons for limiting Mr Hunts order for costs in his favour in this case are that: he raised issues much wider than the issues on which he was given permission to appeal and which required detailed rebuttal; and, he persisted in seeking an unrealistic remedy a quashing order [17]. Consequently, the Court of Appeals order should be set aside and substituted with an order that Mr Hunt recover two thirds of his costs both in the High Court and in the Court of Appeal [18]. As to costs in this Court, although Mr Hunt is entitled to his reasonable costs, having succeeded in reversing the costs orders made by the courts below, a significant proportion of his argument was directed to the question of a declaration. This had no merit. Therefore, Mr Hunt should recover two thirds of his costs subject to either party making written submissions as to why a different order should be made [19].
Farstad Supply AS (Farstad) owned an oil rig supply vessel which was damaged by fire while berthed in harbour on 7 July 2002. At the time of the fire, the third party charterer, Asco UK Limited (Asco), had engaged the defender, Enviroco Limited (Enviroco), to clean out tanks on board the vessel. Following the fire, Farstad sued Enviroco for damages, alleging that the fire was caused by the negligence of Envirocos employees. Enviroco, as well as alleging contributory negligence against Farstads employees, sought a contribution from Asco under section 3(2) of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 (the 1940 Act). Section 3 of the 1940 Act is entitled Contribution among joint wrongdoers. Section 3(1) deals with the case where the party suing (Farstad) proceeds against two defenders in respect of loss or damage caused by both and a judgment is given against both, so that both are found jointly and severally liable in damages. Subsection (2) provides that a defender who has been held liable and pays damages to the suing party under subsection (1), has a right to recover such contribution as the court deems just from any other person who, if sued, might also have been held liable in respect of the loss or damage on which the action was founded. By clause 33(5) of the charterparty, Farstad agreed to defend, indemnify and hold harmless Asco from all liabilities resulting from damage to the vessel. If therefore Enviroco was entitled to a contribution from Asco under section 3(2) it was agreed that Asco would (at the least) be entitled to an indemnity from Farstad under clause 33(5). Whatever the result therefore, Asco would not ultimately be liable. In the Outer House, Court of Session, the Lord Ordinary held that Enviroco was not entitled to a contribution from Asco under section 3(2) of the 1940 Act. An Extra Division of the Inner House, Court of Session, allowed Envirocos subsequent reclaiming motion by a majority of 2:1. Farstad appealed to the Supreme Court to restore the decision of the Lord Ordinary. The three agreed issues to be decided on appeal were: 1) The meaning and effect of section 3(2) of the 1940 Act; 2) Whether a defence provided by a pre existing contract (such as the charterparty) can be taken into account in determining whether a person if sued, might also have been held liable for the purposes of section 3(2); and 3) If the answer to (2) is yes, whether clause 33(5) of the charterparty has the effect that Asco is not a person who, if sued, might have also been held liable to Farstad for the purposes of section 3(2). The Supreme Court unanimously allows the appeal. The Court holds that Enviroco is not entitled to a contribution from Asco under section 3(2) of the 1940 Act because it cannot establish that if sued Asco might have been liable to Farstad in respect of losses caused by the fire. Lord Clarke delivered the leading judgment. Lord Clarke, with whom all other members of the Court agree, considered the first two questions together as both involve the construction of the 1940 Act. Although section 3(2) is specifically intended to deal with the position where there are two actions it is not limited to such a case and the claim for contribution could be made by third party proceedings in the same action (paras [11] [12]). The words if sued are to be construed as meaning relevantly, competently and timeously sued (para [14]). The question under section 3(2) is whether, if Asco had been sued by Farstad, it would have been liable. That depends upon whether Asco would have had a defence to Farstads claim. The outcome of the appeal therefore depends upon the true construction of the charterparty, with the essential question being whether clause 33.5 of the charterparty excludes Ascos liability to Farstad in respect of damage to the vessel caused by Ascos own negligence (paras [15] [16]). The Court found that it does (paras [24], [29]). Enviroco is not entitled to contribution from Asco under section 3(2) of the 1940 Act because it cannot establish that if sued Asco might have been liable to Farstad in respect of losses caused by the fire (paras [15], [16], [19] [29]). This conclusion makes the remaining question whether the position would be different if clause 33.5 were only an indemnity rather than an exclusion clause irrelevant. The Court did not accept the argument that, if clause 33.5 was only an indemnity clause Farstad would have been entitled to a joint and several decree against both Asco and Enviroco and both would be found joint and severally liable in damages within the meaning of section 3(1) of the 1940 Act. The charterparty is governed by English law and such a claim by Farstad would be met by the defence of circuity of action. In other words, it would be useless in such circumstances to give judgment for Farstad against Asco as there could be no order of the court that Asco pay damages to Farstad. Although not called circuity of action, Scots law applies what is in effect the same principle. Therefore, even if it were a matter of Scots law, the answer would be the same and any action by Farstad against Asco would clearly fail (paras [30] [34], [44], [59]). In his judgment, Lord Rodger confirmed that the Courts construction of section 3(2) is in line with the established case law of the courts of New Zealand and Canada on similar provisions. The policy which underlies the decisions of those courts is equally applicable to Scots law. The appeal is allowed and the decision of the Lord Ordinary is restored.
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].
The question in this appeal is whether there is a requirement for the prosecution to prove a defendant had an absence of belief that the person they were having sexual intercourse with was over the age of 13, before they can be convicted of an offence of unlawful carnal knowledge of a girl under the age of 14. The appellant, who was 17 years old at the time, had sexual intercourse with a 13 year old girl. Initially the girl informed her mother of this fact but told her the intercourse had not been consensual. The appellant was arrested. Subsequently however, the girl withdrew the allegation and admitted the sex had been consensual. As a result, the appellant was charged with the offence of having unlawful carnal knowledge of a girl under the age of 14 contrary to section 4 of the Criminal Law Amendment Acts (Northern Ireland 1885 1923) (the 1885 Act) a serious offence that carries a maximum of life imprisonment. The appellant was represented and pleaded guilty to the charge at Belfast Crown Court in 2004. He was sentenced to 3 years detention in a Young Offenders Centre, suspended for 2 years. He had pleaded guilty on the understanding that it was no defence to a charge under section 4 for the defendant to show he believed the girl was over the age of 13. Following his conviction the appellant received advice from different solicitors and launched an appeal, arguing that the Crown was indeed required to prove that the appellant did not believe the girl was over 13 years old. The appellant argued before the Northern Ireland Court of Appeal that section 4 was silent as to such a defence but in view of the legislative history and its seriousness, it must be presumed that there is a mental element to the offence. The appellant relied on the general presumption that criminal offences require the prosecution to prove mens rea i.e. some intent on the part of the accused, unless explicitly excluded by the language of the statute or necessarily inferred from the language of the offence. Such a presumption is hard to displace, especially in relation to serious offences. The Court of Appeal rejected the appellants arguments and held that no defence of reasonable or honest belief existed. All that was necessary was for the prosecution to prove the accused had had sex with a girl who was actually under the age of 14. The appellant thus appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Kerr gives the judgment of the court. A clearly discernible historical trend of increasing the age at which liability for more serious offences is incurred, while reducing the sentence imposed, can be detected [3]. Section 4 as originally enacted referred to unlawful carnal knowledge of a girl under 13 years old. This was amended to 14 years by the Children and Young Persons (Northern Ireland) Act 1950 (the 1950 Act). Section 5 of the 1885 Act created the same offence in relation to a girl between the ages of 13 15. Section 5 and section 6 (permitting defilement on premises) contained provisos that it would be a defence to show that the accused reasonably believed the girl was of or above the age of 16 years. Such defences were abolished by section 2 of the Criminal Law (Northern Ireland) Amendment Act 1923, as amended by section 140 of the 1950 Act. Section 5 thus referred to any girl under 17 years old, with an express prohibition of any defence of reasonable belief that she was 17 or older. No such type of defence has ever been explicitly provided in any version of section 4 [7 13]. The constitutional principle that mens rea is presumed to be required in order to establish criminal liability is a strong one. It is not to be displaced in the absence of clear statutory language or unmistakably necessary implication. Where the statutory offence is grave and carries a heavy penalty or a substantial social stigma, the case is enhanced against implying that mens rea of any ingredient of the offence is not needed [26]. One must at least begin with an examination of what the legislative intention was before considering whether modification of that intention is justified by later amendments or contemporary social contexts [31]. There can really be no doubt that the section in its original form was intended to impose criminal liability for carnal knowledge of a female under the age of 14 without proof that the perpetrator knew or had reason to believe that she was below that age. The decision in R v Prince (1875) LR 2 CCR 154 10 years prior to the 1885 Act confirmed that proof of knowledge or lack of reasonable belief in the age of the victim was not required under section 51 of the Offences Against the Person Act 1861. This formed the crucial backdrop to the 1885 Act. The juxtaposition of sections 5 and 6 of the 1885 Act, which originally contained a defence of reasonable belief, with section 4 make it clear that no such defence was to be provided for under the latter section [32]. It would be anomalous if the subsequent removal of the defence from sections 5 and 6 meant that it should be implied into section 4 to which it had not previously applied [34]. While the amended legislation is to be construed in its revised form, it does not follow that its antecedent history has to be entirely left out of account. To suggest that the removal of the defence under sections 5 and 6 would have the effect of introducing it under section 4 by implication takes contrivance too far [36]. The policy approach of protecting younger females by ensuring that a defence of reasonable belief should not be available has been unswerving. Further, there is nothing in the contemporary social context which militates against the denial of the defence of belief as to age for section 4 offences [37 38].
This appeal concerns whether certain rules of the Visa and Mastercard payment card schemes have the effect of restricting competition, in breach of article 101(1) of the Treaty on the Functioning of the European Union (TFEU) and equivalent national legislation. The appellants, Visa and Mastercard, operate open four party payment card schemes. Under these schemes, issuers (generally banks) issue debit and/or credit cards to cardholder customers and acquirers (also generally banks) provide payment services to merchants (such as the respondents). The scheme operator, Visa or Mastercard, sets the rules of the scheme and allows institutions to join as issuers and/or acquirers. The schemes operate as follows. A cardholder contracts with an issuer, which agrees to provide the cardholder with a Visa or Mastercard debit or credit card. It agrees terms on which they may use the card to buy goods or services from merchants, which may include a fee paid by the cardholder, an interest rate for credit, and incentives or rewards paid by the issuer to the cardholder for using the card (such as airmiles or cashback). Merchants contract with an acquirer, which agrees to provide services to the merchant enabling acceptance of the cards for a fee. This is known as the merchant service charge (MSC). To settle a transaction made between a cardholder and a merchant, the issuer pays the acquirer, who passes the payment on to the merchant, less the MSC. The rules of both schemes provide for the payment of a default interchange fee, known as the multilateral interchange fee (MIF), on each transaction, which is payable by the acquirer to the issuer. Though under the rules acquirers and issuers are not required to contract based on the MIF, in practice they invariably do so. Visa and Mastercard do not receive any part of the MIF or the MSC. Their remuneration comes from scheme fees paid by issuers and acquirers. For most of the claim period, the MIF typically accounted for some 90% of the MSC. Acquirers passed on all of the MIF to the merchants through the MSC, with negotiation between acquirers and merchants in respect of the MSC being limited to the level of the acquirers margin. Schemes such as the Visa and Mastercard schemes operate in a two sided market. On one side, issuers compete for the business of cardholder customers. On the other side, acquirers compete for the business of merchants to whom they seek to offer acquiring services. These proceedings concern the effect of MIFs on competition in the acquiring market. Article 101(1) TFEU prohibits agreements between companies that may affect trade between member states, and which have as their object or effect the restriction of competition. Article 101(3) provides for an exemption where the agreement improves the production or distribution of goods or promotes technical or economic progress while allowing consumers a fair share of the resulting benefit. These provisions are reflected in sections 2 and 9 of the Competition Act 1998 (the 1998 Act), respectively. The Visa and Mastercard schemes have previously been subject to scrutiny by competition authorities. In a decision dated 19 December 2007, the European Commission decided that the Mastercard MIFs applicable within the European Economic Area (EEA MIFs) breached article 101(1) (the Mastercard Commission Decision). Mastercard applied to the Court of Justice of the European Union (the CJEU) for annulment of the Mastercard Commission Decision, which was dismissed by a judgment of the General Court (Mastercard GC). Mastercard appealed this decision to the Court of Justice, which gave judgment dismissing the appeal (Mastercard CJ). The present appeal relates to three sets of proceedings. In the first, brought by Sainsburys Supermarkets Ltd (Sainsburys) against Mastercard, the Competition Appeal Tribunal (the CAT) held that Mastercard MIFs in the UK (UK MIFs) restricted competition by effect and awarded damages to Sainsburys. In the second, brought by Asda Stores Ltd, Argos Ltd and others, and WM Morrison Supermarkets plc (together AAM) against Mastercard, Popplewell J in the Commercial Court found that Mastercards EEA MIFs, UK MIFs and MIFs in the Republic of Ireland (Irish MIFs) did not infringe article 101 and were exempt under article 101(3) in any event. In the third, brought by Sainsburys against Visa, Phillips J in the Commercial Court dismissed the claim and found that Visas UK MIFs did not restrict competition in the acquiring market. At the request of the parties, Phillips J gave an additional judgment, in which he found that if the MIFs did restrict competition, they were not exempt under article 101(3). The appeals in these three sets of proceedings were heard together by the Court of Appeal, which overturned all four judgments given below. It held that there was restriction of competition and made various rulings as to the legal effect of article 101(3). The Court of Appeal remitted the article 101(3) exemption issue in all three sets of proceedings to the CAT for reconsideration in the light of the legal rulings it had made and based on the evidence adduced in all three cases. Visa and Mastercard seek to appeal the Court of Appeals decision on four grounds. AAM seek to cross appeal against the order for remittal. The Supreme Court unanimously upholds the conclusion of the Court of Appeal that the MIFs infringed article 101(1) and its legal rulings on article 101(3), dismissing the appeal on all grounds except the broad axe issue (defined below). The Court allows the cross appeal. The full Court gives the judgment. Visa and Mastercard appeal on four grounds. First, whether the Court of Appeal was wrong to find that there was a restriction of competition in the acquiring market contrary to article 101(1) TFEU and equivalent national legislation (the restriction issue). Second, whether the Court of Appeal found, and if so was it wrong in finding, that Visa and Mastercard were required to satisfy a more onerous evidential standard than that normally applicable in civil litigation, in order to establish that their MIFs were exempt under article 101(3) (the standard of proof issue). Third, whether the Court of Appeal was wrong to find that in order to show that consumers receive a fair share of the benefits generated by the MIFs, to satisfy the test under article 101(3), Visa was required to prove that the benefits provided to merchants alone as a result of the MIFs outweighed the costs arising from the MIFs, without taking any account of the benefits received by cardholders as a result of the MIFs (the fair share issue). Fourth, whether the Court of Appeal found and, if so, was it wrong in finding, that a defendant has to prove the exact amount of loss mitigated in order to reduce damages (the broad axe issue). Finally, AAM seek to cross appeal on the issue of whether the Court of Appeal was wrong to remit the AAM proceedings for reconsideration in relation to exemption under article 101(3) (the remission issue) [40] [41]. The restriction issue The restriction issue raises two issues for consideration: (i) whether the Court is bound by the Mastercard CJ decision; and (ii) if not, whether that decision ought to be followed [48]. The appellants argue that the Court of Appeal was wrong to conclude that it was bound by Mastercard CJ to find that there was a restriction of competition in the acquiring market contrary to article 101(1) TFEU and equivalent national legislation because Mastercard CJ is factually distinguishable [68] [72]. The Supreme Court concludes that Mastercard CJ is binding and the Court of Appeal was correct so to hold. The essential factual basis upon which the Court of Justice held that there was a restriction on competition in Mastercard CJ is mirrored in these appeals [93] [94]. Even if the Court were not bound by Mastercard CJ, the Supreme Court would follow it and conclude that there was a restriction on competition in the present cases. The effect of the collective agreement to set the MIF is to fix a minimum price floor for the MSC. That minimum or reservation price is non negotiable. Acquirers have no incentive to compete over it. It is a known common cost which acquirers know they can pass on in full and do so. Merchants have no ability to negotiate it down. A significant portion of the MSC is thereby immunised from competitive bargaining and is determined by collective agreement rather than by competition. By contrast, in the counterfactual, in which there is no MIF but settlement at par, the whole of the MSC is open to competitive bargaining and determined by competition [95] [104]. The Court therefore dismisses the appeal on the restriction issue [105]. The standard of proof issue On the standard of proof issue, the appellants submit that the Court of Appeal was wrong to conclude that, in relation to article 101(3), there is a specific requirement for robust and cogent evidence, which is a more onerous standard than the normal domestic civil standard of proof on the balance of probabilities, and that there is a legal requirement for facts and empirical data [106]. It is common ground that to justify the restriction on competition the burden of satisfying that the four conditions set out in article 101(3) lies on the defendant; the present issue relates to the standard of proof [107]. Visa and Mastercard submit that in the Commercial Court proceedings the judges adopted diverging views on the standard of proof [108]. The Court of Appeal considered that EU law requires cogent factual and empirical evidence to satisfy article 101(3) [109]. The Court considers that the essential complaint made by Visa and Mastercard here does not relate to the standard of proof but rather to the nature of the evidence required to meet the standard of proof in this context and, more specifically, the type of evidence needed to establish that the benefits from the MIF rules under consideration outweigh the detriments to merchants [115]. In the Courts view, article 101(3) imposes requirements as to the nature of the evidence that can discharge the burden to establish an exemption under that provision, which is imported into domestic competition law by the 1998 Act. Cogent empirical evidence is required to carry out the required evaluation of the claimed efficiencies and benefits [116]. The Court therefore dismisses the appeal on the standard of proof issue [138]. The fair share issue On the fair share issue, Visa challenges the decision of the Court of Appeal, which interpreted Mastercard CJ as meaning that in a two sided market situation such as in the present case, if the restriction causes disadvantages overall to the consumers in the market under consideration (here the merchants in the acquiring market), those disadvantages cannot be compensated by advantages to consumers in the other market (the cardholders in the issuing market), unless the two groups of consumers are substantially the same, which is not the position here [144]. The Supreme Court finds that the Court of Appeal arrived at the correct decision, albeit by different reasoning. The best available guidance from the CJEU on the application of the fair share requirement is the opinion of the Advocate General Mengozzi in Mastercard CJ, which considered that the fair share of the benefits must be received by the consumers in the same market. The Court therefore dismisses the appeal on the fair share issue [171] [174]. The broad axe issue The broad axe issue relates to the degree of precision required in the quantification of mitigation of loss where a defendant to a claim for damages arising out of a breach of competition law asserts that the claimant has mitigated its loss through the passing on of all or part of an overcharge to its customers [175]. Mastercard submitted that it must prove that the merchants passed on some of the overcharge to their customers but the quantification of the pass on did not have to be precise if precision could not reasonably be achieved [179]. The claims of the merchants in these appeals are for compensatory damages for loss caused to them by the tortious acts of Visa and Mastercard in breach of their statutory obligations under the 1998 Act [182]. In such circumstances, EU law allows a member state to lay down procedural rules governing actions that safeguard rights derived from EU law, provided the rules comply with the principles of equivalence and effectiveness. The only constraint on national law at the relevant time was the principle of effectiveness, which requires that the domestic rules do not make it practically impossible or excessively difficult to exercise rights guaranteed by EU law [188]. In the UK, pass on is an element in the quantification of damages that is required by the compensatory principle and required to prevent double recovery through claims in respect of the same overcharge by a direct purchaser and by subsequent purchasers in a chain [196] [197]. Visa and Mastercard have the burden of establishing that the merchants have recovered the costs incurred in the MSC but, once the defendants have raised the issue of mitigation, in the form of pass on, there is a heavy evidential burden on the merchants to provide evidence [216]. The degree of precision requires a balance between achieving justice by precisely compensating the claimant and dealing with disputes at a proportionate cost [217]. The law does not require unreasonable precision in the proof of the amount of the loss that the merchants have passed on to suppliers and customers [225]. The Supreme Court does not interpret the Court of Appeal as having held that the defendants had to prove the exact amount of the loss mitigated, but insofar as the Court of Appeal required a greater degree of precision in the quantification of pass on from Visa and Mastercard than from the merchants, the Court erred. As a result, the appeal succeeds on the broad axe issue [226]. The remission issue The cross appeal relates only to the AAM proceedings [227]. AAM submit that the Court of Appeal erred in remitting the AAM proceedings for reconsideration of the exemption under article 101(3). Despite reaching the correct conclusion that Mastercards defence based on article 101(3) should have been dismissed, the Court of Appeal made an order remitting the AAM proceedings to the CAT, alongside the other two sets of proceedings, for reconsideration of whether Mastercards case under article 101(3) should have succeeded in whole or in part [232] [233]. AAM submit that it was not open to the Court of Appeal to so order and to permit the issue to be re opened by Mastercard, and that it offended against the principle of finality in litigation [235]. In the Supreme Courts judgment, the Court of Appeal was wrong to allow Mastercard to re open this issue, which it had lost after a full and fair trial. It offends against the strong principle of public policy and justice that there should be finality in litigation [237]. Accordingly, AAMs cross appeal is allowed [247].