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The Appellant is a patient who has been compulsorily detained in Leverndale Hospital, which is not a state hospital, since 1995. He believes he is detained in conditions of excessive security. He believes that his quality of life, his liberty and his prospects for release would be improved were he to be transferred to an open ward. Section 264 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the Act) gives patients who are detained in state hospitals under certain types of order the right to apply to the Mental Health Tribunal for Scotland (the Tribunal) for a declaration that they are being held in conditions of excessive security. Section 268 of the Act purports to give the same right to such patients who are detained in non state hospitals. However, it also specifies that, within that class of individuals, only qualifying patients in qualifying hospitals may make an application. Under each section, if the Tribunal makes a declaration, the relevant health board must identify within three months another hospital where the patient can be detained in appropriate conditions of security. The Act was passed and received Royal Assent in 2003. Section 333(2) of the Act states that the part of the Act containing sections 264 and 268 was to come into force by no later than 1 May 2006. Section 268 of the Act specifies that the terms qualifying patient and qualifying hospital were to be defined in regulations made by the Respondents. Section 273 of the Act specifies the same in relation to the term relevant health board. However, although sections 268 and 273 were brought into force on 6 January 2006 specifically and only for the purpose of allowing regulations to be made under those sections, the Respondents made regulations under section 273 only, which defined relevant health board. Those regulations came into force on 1 May 2006. No regulations defining qualifying patient or qualifying hospital have been made by the Respondents under section 268 to date. Because the term relevant health board was defined prior to 1 May 2006, the right to apply to the Tribunal for patients detained in state hospitals under section 264 was in effective operation by that date. However, because the terms qualifying patient and qualifying hospital remain undefined, section 268 is not in effective operation. Therefore, the Appellant cannot apply for a declaration from the Tribunal that he is detained in conditions of excessive security. The Appellant applied for judicial review on the basis that the Respondents failure to draft and lay regulations under section 268 defining the terms qualifying patient and qualifying hospital was unlawful. The Outer House of the Court of Session refused the Appellants petition on the basis that there was no duty to lay regulations to give effect to a statute where that statute had not conferred a right on any specific class of persons. The Inner House refused the Appellants subsequent appeal on broadly similar grounds. The Supreme Court unanimously allows the appeal. The Court finds that the failure by the Scottish Ministers to draft and lay the regulations under section 268 of the 2003 Act before the Scottish Parliament prior to 1 May 2006, and their continued failure to do so, was and is unlawful. Lord Reed gives the judgment of the court. The Respondents argue that section 268 was in force by 1 May 2006, as required by section 333(2) of the Act, but did not operate. The latter would not occur unless and until they decided to make the necessary regulations, and their failure to do so did not defeat the intention of the Scottish Parliament. There is a valid distinction, they say, between coming into force and operating [20]. By contrast, the Appellant argues that the inference to be drawn from section 333(2) is that the part of the Act containing section 268 should be in effective operation by 1 May 2006. This is supported by the fact that there are other sections within the Act in respect of which Parliament had not set any deadline for their coming into force [21]. The Court notes that the question of when a statutory provision comes into force depends not on when it appears on the statute book following Royal Assent, but on what commencement provision Parliament enacts [22]. It is common for a section to come into force on a later date, usually in order to allow for preparation by the officials who are to administer the Act and/or those who will be affected by its practical operation. Parliament may allow Ministers to decide when a section should come into force, or alternatively may specify a particular deadline [24 25]. Having regard to previous decisions of the Court of Appeal, the distinction between a section coming into force, first, in the sense that it forms part of the law of the land and, second, in the sense that it is in effective operation as a matter of objective fact, is in principle a valid one. As such, in a commencement provision such as section 333(2) of the Act, the words in force refer to the former of these two senses[27 32]. However, the natural inference that should nonetheless be drawn, unless the contrary intention appears, is that Parliament intended the sections to which such a commencement provision applies also to be in effective operation [33 37]. In relation to the present case, Parliamentary debate led to the inclusion in the Act of a right of application on the part of detained patients to be transferred to conditions of lower security. Such debate also led, as a result of an amendment, to a commitment being made that such rights would be in force by no later than May 2006 [38 39]. The intention of the Scottish Parliament was that the rights of application for which the part of the Act containing section 268 provided should be in effective operation by that date. There was nothing in the Act to support the contention that the Scottish Parliament intended that section 264 should be in effective operation by 1 May 2006 but that section 268 should not; both required the enactment of regulations to give them practical effect [40]. It is a basic principle of administrative law that a discretionary power must not be used to frustrate the object of the Act of Parliament which conferred that discretion. The Respondents failure to exercise their power to make the regulations necessary to define qualifying patient and qualifying hospital, and therefore to give section 268 of the Act practical effect, thwarted the intention of the Scottish Parliament. That failure therefore was, and is, unlawful [42 43]. Before the Scottish courts, the Respondents pointed out that the Scottish Parliament did not confer a right of application on an identified class of patients in section 268 in the way that it had in section 264. They argued that this meant they had no duty to make regulations, as there was no right contained in section 268 to which they were duty bound to give effect [44]. However, the Court notes that that proposition is circular; there is no duty to make regulations because no rights have been conferred, but no rights have been conferred because no regulations have been made [45]. The fundamental flaw in the argument is that it is too narrow an approach to suggest that an obligation to exercise a discretionary power to make regulations only arises where it is necessary to do so to give effect to a legal right. It may be necessary to exercise such a power to bring about some other result that was intended by Parliament, and in this case that intended result was that the part of the Act containing section 268 should be in effective operation by 1 May 2006 [46 47].

These appeals concern requests for extradition in the form of European Arrest Warrants (EAWs) issued, in the joined cases of HH and PH, by the Italian courts, and in the case of FK, a Polish court. The issue in all three is whether extradition would be incompatible with the rights of the Appellants children to respect for private and family life under article 8 of the European Convention on Human Rights (ECHR). HH is the mother and PH the father of three children: X aged 11, Y aged 8 and Z aged 3. HH and PH are both British citizens, although HH was born and bred in Morocco. In 2003 they were arrested in Italy and prosecuted on eight charges relating to the importation of cannabis into Italy from Morocco on various dates earlier that year. After a month HH was released under house arrest. She fled the country in July 2004. PH spent a year in custody before being conditionally discharged whereupon he also fled. They were later convicted of all charges although PH received a lesser sentence in respect of the eighth charge, that of conspiracy, because of his lesser degree of participation. HHs EAW states that she has just over nine and a half years of her prison sentence to serve. PPs states that he has eight years and four months to serve. According to calculations made by PHs legal team, he is likely in fact to have only around four and a half years to serve. Further, as primary carer for the children, were the family living in Italy he would be allowed to serve all but a few months of that at home. PH has become the primary carer for the children because HH had experienced a collapse in her mental health. There was expert evidence of the serious harm which would be suffered by the children if both their parents were extradited, in particular by Z who would be separated from her primary attachment figure The District Judge ordered extradition of both HH and PH. Their appeals were dismissed by the Administrative Court on 11 May 2011. FK and her husband are Polish and have five children aged 21, 17, 13, 8 and 3. They have lived in the United Kingdom since 2002. The two youngest children were born in this country. FK is charged with offences of dishonesty with a total equivalent value of less than 6,000. She fled Poland in 2002 and has not been tried or convicted of the alleged offences. There was expert evidence of the serious harm which would be suffered, in particular by the two youngest children, if their mother was extradited. The children had reacted badly to her arrest in 2010. FKs husband is physically impaired and was found to display signs of psychological disturbance. The Senior District Judge ordered extradition. Her appeal was dismissed by the Administrative Court on 1 January 2012. The Supreme Court unanimously allows the appeal in the case of FK. The appeal in respect of HH is unanimously dismissed. By a majority, the Court also dismisses PHs appeal, Lady Hale dissenting. Lady Hale gives the lead judgment. The application of article 8 of the ECHR in the context of extradition was considered by the Supreme Court in Norris v Government of the United States of America (No 2) [2010] UKSC 9, [2010] 2 AC 487. The case concerned the effect on Mrs Norris of her husband of many years being extradited to face charges of conspiracy. Whilst not involving the rights of children, the following principles can nonetheless usefully be drawn from that case [08]. First, there may be a closer analogy between extradition and the domestic criminal process than between extradition and deportation, but the court must still carefully examine the way in which it will interfere with family life. Secondly, there is no test of exceptionality. Third, the question is whether the interference with private and family life is outweighed by the public interest in extradition. Fourthly, there is a constant and weighty public interest in extradition: people should stand trial and serve appropriate sentences for their crimes, the United Kingdom should honour its treaty obligations towards other States, and there should be no safe haven for fugitive offenders. Fifthly, the public interest will always carry great weight but the weight does vary according to the nature and seriousness of the crimes involved. Sixthly, delay in seeking extradition may diminish the public interest element and increase the impact on family life. Lastly, as a result of the above it is likely that the public interest will outweigh the article 8 rights of the family unless the interference is exceptionally severe. In ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166 the Supreme Court considered the potential impact of Hs deportation on the article 8 rights of her two children, British citizens who had always lived here. The United Nations Convention on the Rights of the Child required that the best interests of the child shall be a primary consideration (not, it should be noted, the primary consideration or the paramount consideration, [11]), although they can be outweighed by the cumulative effect of other considerations [15]. The approach of the court to article 8 rights is not radically different as between extradition and expulsion cases [29]. The countervailing public interest arguments may be different, in particular because extradition is an obligation owed by the requested state to the requesting state, but the balancing process involves asking the central question set out above. In all cases there must be a careful analysis under article 8 of the potential effects of extradition [31, 32]. For guidance as to procedure in respect of gathering evidence, see [82 86]. In respect of FK, her extradition would have a severe effect on her two youngest children, who would lose their primary attachment figure. That loss could have a lasting impact on their development. Their father, though well intentioned, is unlikely to be able to fill that gap [44]. The alleged offences are not trivial but are of no great gravity [45]. There is no prosecutorial discretion in Poland and there has been considerable delay which may indicate the importance attached to her offending by the Polish authorities [46]. The public interest in extraditing FK does not justify the inevitable harm that it would cause to the lives of her children [48]. In the Italian case, the extradition of both parents would have a severe impact on the children. However, having regard to the limited role of HH in the childrens lives and the central part she played in the very serious offences committed, the interference with the rights of the children is outweighed by the public interest in her extradition. On this point all members of the Court agree. As regards PH, the majority conclude that he ought to be extradited also. Lord Judge notes that in the domestic sentencing context judges have for many years considered the effects of imprisonment on the children of offenders. Unfortunately, the seriousness of the offences committed often means that innocent members of the offenders family will suffer as a result of their crimes [130, 131]. Given the nature of the crimes committed by PH, the public interest in extradition outweighs the interference with the rights of his children [135 138], a sentiment echoed by the majority: Lord Hope, [94]; Lord Brown, [96]; Lord Mance, [103]; Lord Kerr, [149]; and Lord Wilson at [170 172]. Lady Hale would have found that the current effect on the children and in particular the youngest is such that the extradition of their father in addition to their mother is not justified at present [79].

This appeal concerns the provision of Legal Aid in criminal proceedings in Northern Ireland. Raymond Brownlee was convicted on 1 June 2012 of a number of offences including false imprisonment, making threats to kill and wounding with intent. He had been represented by senior and junior counsel until the close of the prosecutions case. But differences arose at that point between Mr Brownlee and his legal team, which resulted in their no longer acting for him. The judge indicated that he intended to proceed with the trial. He did not permit the prosecution to close the case to the jury but asked Mr Brownlee whether there was anything that he wished to say. Having been informed that there was not, the judge charged the jury, who returned the guilty verdicts. They also found Mr Brownlee not guilty on three further counts, on one of these by direction of the judge. The case was adjourned to permit Mr Brownlee to instruct new solicitors and counsel. New solicitors came on record for Mr Brownlee on 29 June 2012. On 3 July 2012, following representations made on Mr Brownlees behalf, the judge extended the legal aid certificate which he had granted to include senior counsel as well as junior counsel and solicitors. It had been submitted that the sentencing exercise would be complex and might result in an indeterminate or extended sentence. Consequently, a substantial amount of preparation would be required to properly represent Mr Brownlee during the sentencing exercise. But the fees payable by the Legal Services Commission (LSC) for the sentencing hearing were fixed by the Legal Aid for Crown Court Proceedings (Costs) Rules (Northern Ireland) 2005 (the Rules) at 100 for a solicitor, 120 for junior counsel and 240 for senior counsel. No fees were payable in respect of any preparatory work that counsel would be required to undertake. A provision allowing for the payment of exceptional fees had been removed by an amendment in 2011. Mr Brownlees solicitors were unable to engage counsel to act for him on the sentencing hearing. They were consistently informed that the absence of any allowance for preparation in the fixing of the fee level makes it unfeasible to act on behalf of the appellant for the payment specified. Mr Brownlee applied for judicial review of LSCs decision not to allow any modification of the standard fees to be paid for the sentencing hearing in his case. Treacy J held that the consequent impossibility of retaining counsel amounted to a denial of access to justice. He made an order of mandamus (an order that instructs a party to do a particular thing) requiring the respondent, the Department of Justice (who are responsible for LSC), to take all necessary steps to make Mr Brownlees right to legal aid effective. The Department of Justice successfully appealed Treacy Js order. Morgan LCJ, delivering the judgment of the Court of Appeal, acknowledged that inadequate remuneration within a legal aid scheme can breach a defendants right to a fair trial under article 6 of the European Convention on Human Rights if an accused consequently finds it impossible to obtain the services of an appropriate lawyer to represent him. But this was a problem of Mr Brownlees own making, so that his sentencing process should not be hindered because of it. In fact, it is clear from a transcript of the trial that it was senior counsel who had initiated the process of withdrawal from the case. He told the judge that he felt professionally compromised and could no longer act for Mr Brownlee. At that stage, the appellant did not want counsel to withdraw. There can be no question of counsel having been dismissed by the appellant at that point. It was only after lunch, having been given time to consult with his solicitor, that Mr Brownlee said in answer to the judges direct question that he wanted to dispense with counsels services. After the Court of Appeal had heard the Departments appeal but before judgment was delivered, a consultation document was published as part of a review of the Rules, which implicitly accepted that they had failed to cater for the proper remuneration of counsel briefed for the first time to appear for an accused person after the trial had ended. Draft amendment rules were shown to this court in the course of the hearing of the appeal on 5 December 2013. These were expected come into force in January 2014 with retrospective effect. The new rules will make provision for the payment of additional fees for preparatory work undertaken by a new legal representative for a sentencing hearing. The Supreme Court unanimously allows Mr Brownlees appeal and declares that the rule making bodys failure to allow for new legal representatives to be paid for preparatory work was unlawful. At the conclusion of the hearing of the appeal, this court announced that it would allow the appeal for reasons to be given later. This judgment contains those reasons. The assessment and payment of fees to a legal representative who has replaced another at the sentencing stage of criminal proceedings was, self evidently, a material consideration which should have been taken into account by the rule making body which amended the Rules in 2011. This failure to have regard to a relevant factor justifies judicial review of the decision to amend the Rules in 2011 without making provision for the payment of fees that would properly reflect the preparatory work which a legal representative, new to the case at the sentencing stage, would have to undertake [32]. Article 37 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 requires the rule making body to devise rules prescribing payments to be made to reflect the time and skill necessary to carry out particular types of criminal legal aid work. A failure to make provision for remuneration of preparatory work by a new legal representative is therefore unlawful. The cost to public funds of any provision made by the Rules and the need to secure value for money complement this obligation rather than extinguish it [33]. This court concluded that a declaration should be substituted for the order of mandamus made by Treacy J. When he granted judicial review an order of mandamus was appropriate. Now that the Department has accepted that the Rules require to be amended to allow for payment for preparatory work undertaken by a new legal representative, mandamus is no longer necessary. The declaration will be that the failure of the rule making body to take account of the need to provide for such payment rendered the Rules to that extent unlawful [34].

These appeals raise questions of some significance arising out of the interrelationship of the statutory schemes relating to the protection of employees pensions and to corporate insolvency. In order to protect employees from the adverse consequences of an under funded occupational pension scheme, the Pensions Act 2004 (the 2004 Act) introduced a financial support direction (FSD) regime. This enables the Pensions Regulator in specified circumstances (i) to impose, by the issue of an FSD to some or all of the other group companies (known as targets), an obligation to provide reasonable financial support to the under funded scheme of the service company or insufficiently resourced employer, and (ii) to deal with non compliance with that obligation by imposing, through a Contribution Notice (a CN), a specific monetary liability payable by a target to the trustees. Many UK registered members of the Lehman group of companies and of the Nortel group of companies have gone into insolvent administration. One of those Lehman group companies entered into service contracts with, and ran a pension scheme for the benefit of, employees who worked for other group members. The Nortel group included a company which had a pension scheme, and which was insufficiently resourced to fund that scheme. The pension scheme (the Scheme) in each case was a final salary scheme, which appears to be, and to have been for some time, in substantial deficit. The Pensions Regulator subsequently initiated machinery under the 2004 Act to require certain other group members the target companies to provide financial support for the Scheme. That machinery has been held up so it can be decided how the administrators of a target company should treat that companys potential liability under the FSD regime (in due course the liability under a CN) in a case where the FSD is not served until after the company has gone into administration (or into insolvent liquidation). Specifically, would the liability under such a requirement rank (a) as an expense of the targets administration, (b) pari passu (i.e. equally) with the target companies other unsecured creditors, or (c) as neither? Under option (a) the liability would rank ahead of the unsecured creditors, and may well be paid in full; under option (b) it would rank equally with those creditors; under option (c) it would rank behind them, and would probably be worthless. Briggs J and the Court of Appeal concluded that option (b) was not open to them, and preferred option (a) to option (c). The Supreme Court considers option (b) to be correct, and unanimously allows the appeals to the extent of declaring that a targets liability under the FSD regime, arising pursuant to an FSD issued after the company has gone into administration, ranks as a provable debt of the company, and does not rank as an expense of the administration. Lord Neuberger gives the main judgment of the Court, with which Lord Mance, Lord Clarke and Lord Toulson agree. Lord Sumption gives a short concurring judgment, with which Lord Mance and Lord Clarke agree. The potential liability as a result of an FSD issued after the commencement of an administration or an insolvent liquidation (an insolvent event) can constitute a provable debt within rule 13.12 of the Insolvency Rules 1986 (SI 1925/1986) (the Insolvency Rules). Whilst the potential FSD regime liabilities in the present cases do not fall within rule 13.12(1)(a) [68] [71], they fall within rule 13.12(1)(b) [83]. It is common ground that if a CN had been issued in respect of a target before an insolvent event, it would give rise to a provable debt. The courts below considered that, if a CN were issued after an insolvent event, it would give rise to a provable debt if it was based on an FSD issued before the insolvent event. It appears somewhat arbitrary that the characterisation and treatment of the liability under the FSD regime should turn on when the FSD or CN happens to have been issued, if it is based on a state of affairs which existed before the insolvent event [59]. The courts below felt constrained by a consistent line of authority from reaching the conclusion the Supreme Court has reached, although it appears that they would have so held if they had felt able to do so [56]. These earlier authorities can be overruled: the judgments are very short of reasoning, are inconsistent with another line of authority, and were decided at a time when the legislature and the courts were less anxious than currently for an insolvency to clear all the liabilities of a bankrupt (as they were all concerned with individual insolvencies) [87] [94]. There is no doubt that the liability which is imposed on a target on the issuing of an FSD after an insolvent event is a liability for the purposes of rule 13.12(1)(b), as it is a liability under an enactment within rule 13.12(4). The question is, however, whether it can be said to be a liability which arose by reason of any obligation incurred before the insolvent event [72]. That issue centres on the meaning of the word obligation in rule 13.12(1)(b) [74]. At least normally, in order for a company to have incurred a relevant obligation under rule 13.12(1)(b), it must have taken, or been subjected to, some step or combination of steps which (a) had some legal effect (such as putting it under some legal duty or into some legal relationship), and which (b) resulted in it being vulnerable to the specific liability in question, such that there would be a real prospect of that liability being incurred. If these two requirements are satisfied, it is also relevant to consider (c) whether it would be consistent with the regime under which the liability is imposed to conclude that the step or combination of steps gave rise to an obligation under rule 13.12(1)(b) [77]. In these appeals, all these requirements are satisfied, and accordingly the relevant obligation arose before the target companies went into administration. Given that the potential FSD liability in each of these cases is a provable debt within rule 12.3 of the Insolvency Rules, and therefore it would not be an expense, it is strictly unnecessary to consider whether the liability under an FSD served after an insolvent event would be a liquidation expense, if, as the courts below held, it was not a provable debt [97]. However, given that this issue was fully debated before the Court, and is one of some potential importance, the Court concludes that, if the liability did not rank as a provable debt, it would not count as an expense of the administration [98] [114]. The Court also concludes that if it had taken a different view on the provable debt issue, it would not have held that it had a residual discretion to direct the administrator of a target company to accord to the potential liability under the FSD regime a higher ranking than it would be given under the relevant legislation [115] [127]. Lord Sumption adds some observations about the limitations on what constitutes an obligation incurred for the purpose of rule 13.12(1)(b) of the Insolvency Rules [129] [136].

Councils (known in this context as surveying authorities) are required by section 53 of the Wildlife and Countryside Act 1981 to maintain a definitive map and statement of the public rights of way in their local area. Under the 1981 Act, members of the public may apply to surveying authorities for an order modifying the definitive map and statement in light of new evidence of the existence of a public right of way. Schedule 14 to the 1981 Act specifies in paragraph 1 that such applications must be accompanied by a map drawn to the prescribed scale and showing the way or ways to which the application relates. The scale is prescribed by the Wildlife and Countryside (Definitive Maps and Statements) Regulations 1993, which provide by Regulation 2 that a definitive map shall be on a scale of not less than 1:25,000 and by regulation 3 that maps accompanying an application for a modification order must also comply with regulation 2. The Natural Environment and Rural Communities Act 2006, section 67, extinguished all unrecorded rights of way for mechanically propelled vehicles in England as of 2 May 2006. However, such rights of way could be preserved if an application for a modification order had been made before 20 January 2005. Section 67(6) specifies that an application under this section is made when it is made in accordance with paragraph 1 of Schedule 14 to the 1981 Act. Before the deadline, the Friends of Dorsets Rights of Way made five applications to Dorset County Council (the appellant) under the 1981 Act for orders modifying the definitive map and statement to show various byways open to all traffic. The maps accompanying the applications were produced using a computer program which printed out maps which were to a presented scale of 1:25,000 or larger but which were derived originally from Ordnance Survey 1:50,000 maps. The Trail Riders Fellowship (the first respondent) has now taken over conduct of those applications. On 7 October 2010, the council rejected all of the applications on the basis that the accompanying maps were not drawn to a scale of not less than 1:25,000. If the councils decision is upheld, the vehicular rights of way in question will no longer exist. Supperstone J upheld the councils decision on the basis that: (i) the application maps did not comply with the statutory requirements; and (ii) applying the decision of the Court of Appeal in the case of R (Warden and Fellows of Winchester College) v Hampshire County Council [2008] EWCA Civ 431 (Winchester), the applications were invalid because the extent of the non compliance was not negligible (de minimis). The Court of Appeal allowed the appeal, holding that (i) the maps did comply with the statutory requirements, but (ii) if the appeal had failed on the first point, the non compliance could not sensibly be described as de minimis. The Supreme Court dismisses the councils appeal on the basis of point (i) and upholds the Court of Appeals decision that the maps did comply with statutory requirements by a majority of 3 2. Lord Clarke gives the leading judgment; Lord Toulson and Lord Carnwath agree with Lord Clarke. Lord Sumption and Lord Neuberger would both have decided in the appellant councils favour on point (i). Point (ii) therefore does not arise. Had point (ii) arisen, Lord Neuberger, Lord Sumption and Lord Toulson would have held that the effect of non compliance with the statutory provisions is that the applications would not have been valid, while Lord Carnwath would have held, contrary to Winchester, that they would nonetheless have been valid. Lord Clarke prefers not to express a view on point (ii). (i) Did the maps submitted with the applications comply with the statutory requirements? Lord Clarke explains that the only question is whether the maps were drawn to a scale of not less than 1:25,000 [18 19]. He holds that they were. Each map was in fact produced to a presented scale of 1:25,000 or larger [20]. The statute and regulations could have but did not require that a map with the amount of detail of an Ordnance Survey 1:25,000 map be used, and the mere fact that one might ordinarily expect the use of an Ordnance Survey 1:25,000 map does not tell us whether that is a requirement [22 25]. Maps drawn to a scale of 1:25,000 without any reference at all to an Ordnance Survey map would satisfy the statutory provisions, even if they contained only as much detail as an Ordnance Survey 1:50,000 map [25 26]. Although the prescribed scale requirement applies to the application map and the definitive map and statement in the same terms, it is important to note that the surveying authority is under a public law duty to prepare and maintain the definitive map and statement to a professional standard, whereas lay applicants are only required to put relevant material before the surveying authority for investigation [28]. A map could be drawn by a computer program [29 30]. Lord Toulson [35, 40] and Lord Carnwath [51] agree with Lord Clarke. Lord Neuberger and Lord Sumption would have allowed the appeal in relation to point (i); each agrees with the other [106, 109]. Lord Neuberger considers that: the most natural meaning of Schedule 14 is that it requires that, where an applicant uses a copy of an original map, the original map must have been prepared on a scale of at least 1:25,000 [86 87]; the justification for the use of a minimum scale must have been that such a map would normally show more contextual detail [88]; it is not natural to say that a map is drawn to a certain scale if it has not been prepared to that scale [90]; and the terms in question must have had the same meaning in relation to both the definitive map and the map accompanying an application [91]. Lord Sumption says that the Regulations were drafted on the assumption that a 1:25,000 scale map would have more detail than a 1:50,000 map. A magnified 1:50,000 map is therefore not the same thing as a 1:25,000 map [107]. (ii) Does non compliance with the statutory requirements mean that the maps are invalid? Lord Neuberger explains that the ultimate question of one of statutory construction: can Parliament fairly be taken to have intended that the applications would be totally invalid if they did not comply with the statutory requirements [93]? Prior to the deadline imposed by the 2006 Act, it would have been open to the council to waive the defect by accepting a non compliant application, or to the applicant to validate the application after its submission by providing compliant maps. The defect could not simply have been overlooked unless it could be said that the defect was de minimis (a suggestion rightly rejected by the first instance judge) [92 97]. But under section 67 of the 2006 Act, Parliament has spelled out the consequence of non compliance: a non compliant application is not to be treated as a valid application, and there is no jurisdiction to waive or amend the defect [99]. Any other interpretation would deprive section 67(6) of the 2006 Act of all meaning [100 105]. Lord Sumption agrees: the point may be technical, but the technicality is unavoidable [108]. Lord Toulson agrees with the approach taken by Lord Neuberger and Lord Sumption [41]. He notes that all statutes must be construed in their own context but in this case section 67(6) puts the answer beyond doubt [48 50]. Lord Carnwath starts from the principle that procedural requirements such as those in the 1981 Act should be interpreted flexibly and in a non technical way [69], and adds that such a flexible approach is particularly appropriate given that the primary duty to keep the definitive map up to date rests on the surveying authority and that the effect of the statute is retrospective [71, 78]. In this context, substantial compliance with the statutory provisions would suffice to achieve validity. Winchester was therefore too narrowly decided [73 75]. Section 67(6) is simply included for clarity [77]. He would therefore have dismissed the appeal on this basis as well (and notes that the grounds are closely related) [80 81]. Lord Clarke is sympathetic to Lord Carnwaths general approach but prefers not to express a view on the issue until it arises on the facts of a particular case [34].

The appellants are insurance companies which have undertaken to indemnify employers against liability for negligence. They sought to challenge the lawfulness of an Act of the Scottish Parliament (the Damages (Asbestos related Conditions) (Scotland) Act 2009, the 2009 Act) which provides that asbestos related pleural plaques and certain other asbestos related conditions constitute personal injury which is actionable under Scots law. Pleural plaques are physical changes in the tissue which lines the lungs and the chest wall. They do not actuate or contribute to potentially fatal conditions such as lung cancer, mesothelioma or asbestosis, but their existence evidences significant previous exposure to asbestos, which of itself represents an increased risk of contracting such diseases. The purpose of the 2009 Act was to reverse the decision of the House of Lords in Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 29. In that case it was decided that the mere presence of pleural plaques did not constitute injury which could gave rise to a claim for damages. The appellants challenge the validity of the Act on two bases: 1. that it is incompatible under article 1 of Protocol 1 (A1 P1) of the European Convention on Human Rights (the Convention) and therefore is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998; and 2. that it is open to judicial review as an unreasonable, irrational and arbitrary exercise of the legislative authority of the Scottish Parliament. The first and second respondents represent the Scottish Ministers and the United Kingdom government respectively. The third to tenth respondents are individuals who have been diagnosed with pleural plaques. These respondents have cross appealed a court finding which held that they did not have title and interest to be parties to the case. The Supreme Court dismisses the appeal and allows the cross appeal by the third to tenth respondents. The leading judgments were given by Lord Hope and Lord Reed, with whom the other justices agreed. The Court holds that the appellants are entitled to bring these proceedings under the Convention as the effect of the 2009 Act is that they would be victims for the purposes of article 34 and that the amount of money the appellants would be required to pay is a possession for the purposes of A1 P1 [28], [112 114]. Therefore in order for the 2009 Act to comply with A1 P1, it must be shown that the Act is pursuing a legitimate aim and is reasonably proportionate to the aim pursued. In issues involving questions of social policy, which this is, the Court should respect the judgment of the elected body as to what is in the public interest unless that judgement is manifestly without reasonable foundation [31] [32]. It cannot be said that the judgement of the Scottish Parliament was without reasonable foundation [33], [125]. Therefore the Court accepts that the Act pursues a legitimate aim [41], [125]. It also considers that the means chosen are reasonably proportionate to the aim sought to be realised [41], [134]. The balance is correctly struck, first because the claims will only succeed if the asbestos exposure was caused by the employers negligence [37]. Second, the appellants obligation to indemnify inevitably entailed a risk that unforeseen circumstances would increase the burden of liability [38]. And third, because the Act can be seen as preserving the status quo prior to Rothwell [129]. It follows that the 2009 Act was not outside the legislative competence of the Scottish Parliament. Nor can it be said that the 2009 Act was a result of an unreasonable, irrational and arbitrary exercise of the legislative authority [42]. The Court finds that in principle Acts of the Scottish Parliament are subject to judicial review but not on the grounds of irrationality, unreasonableness or arbitrariness. The guiding principle is to be found in the rule of law. This is the ultimate controlling factor, and the courts must insist that it is respected by legislation that the Parliament enacts. But it would be wrong for the judges to substitute their views as to what is rational or reasonable for the considered judgment of the democratically elected legislature [47], [51] [52], [148] and [153]. As to whether the third to tenth respondents are entitled to be parties, the test of standing, rather than the private law rule that title and interest has to be shown, is a more appropriate approach in judicial review proceedings [62], [171]. The third to tenth respondents have standing as they are directly affected by the appellants challenge to the 2009 Act [63] [64] and [175].

The two appeals concern whether, and if so, in what circumstances, an order or judgment of a foreign court in proceedings to set aside prior transactions, such as preferences or transactions at an undervalue (avoidance proceedings), will be recognised and enforced in England and Wales. The appeals also raise the question of whether enforcement may be effected through the international assistance provision of the UNCITRAL Model Law implemented by the Cross Border Insolvency Regulations 2006, which apply generally, or the assistance provisions of s.426 of the Insolvency Act 1986 (the Insolvency Act), which applies to a limited number of countries, including Australia. In Rubin a judgment of the US Federal Bankruptcy Court for the Southern District of New York in default of appearance for around US$10m in respect of fraudulent conveyances and transfer was enforced in England at common law. In New Cap, bound by the prior decision in Rubin, a default judgment of the New South Wales Supreme Court for about US$8m in respect of unfair preferences under Australian law was enforced under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (1933 Act) and, alternatively, pursuant to the Insolvency Act. In both appeals the parties against whom the judgments were made were neither present in the foreign country nor had they submitted to the jurisdiction. Since both judgments were in personam, the essential issue was whether the existing principles were applicable or whether the Court should adopt separate rules for judgments in personam in avoidance proceedings, where the judgments were central to the purposes of the insolvency proceedings or part of the mechanism of collective execution. The Supreme Court by a majority of 4:1 (Lord Clarke dissenting) allowed the appeal in Rubin holding that there should not be special rules for avoidance judgments but dismissed the appeal in New Cap on the ground that the Syndicate submitted to the jurisdiction of the Australian Court. Lord Collins gave the leading judgement. Broadly, under both the common law and the 1933 Act, a foreign court has jurisdiction to give a judgment in personam capable of recognition and enforcement against the person whom the judgment was given if the person (i) was present in the foreign court when proceedings were instituted; (ii) was a claimant, or counterclaimed, in the foreign proceedings; (iii) submitted to the jurisdiction of the foreign court by voluntarily appearing in the proceedings; or (iv) agreed to submit to the jurisdiction of the foreign court before the commencement of the proceedings. As a matter of policy, the Court did not agree that, in the interests of the universality of bankruptcy and similar procedures, there should be a more liberal rule for judgments given in foreign insolvency proceedings for the avoidance of transactions. [115] A different rule for avoidance proceedings would mean courts would have to develop two aspects of jurisdiction: a requisite nexus between the insolvency and the foreign court and a requisite nexus between the judgment debtor and the foreign court. [117] Such a change would not be an incremental development of existing principles but a radical departure from substantially settled law, and more suitable for the legislature than judicial innovation. The restricted scope of the existing rules reflects the fact that there is no expectation of reciprocity on the part of foreign countries. [128 29] Expanding the principal would also be detrimental to United Kingdom businesses without any corresponding benefit. [130] Nor would any serious injustice result from adhering to the traditional rule. There were several other avenues open to officeholders. Rubin, for example, could have been founded on proceedings by trustees in England for the benefit of creditors under an express trust, and avoidance claims by the liquidator of an Australian company may be the subject of a request by the Australian court under the Insolvency Act. [131] Lord Collins (with the agreement of Lord Walker and Lord Sumption) held that the earlier Privy Council decision in Cambridge Gas Transportation Corporation v Official Committee of Unsecured Creditors of Navigator Holdings plc [2007] 1 AC 508 was wrongly decided as there was no basis for the recognition of the US Bankruptcy order in the Isle of Mann in that case. [132] Whilst agreeing it was distinguishable, Lord Mance reserved judgment on whether it was wrongly decided. [178] As for enforcement under the Cross Border Insolvency Regulations 2006, there was nothing expressly or by implication in the UNICTRAL Model Law that applied to the recognition or enforcement of foreign judgments against third parties. [142 44] In relation to New Cap, Lord Collins concluded that the Syndicate had submitted to the jurisdiction of Australia having chosen to prove in New Caps Australian insolvency proceedings. It should not be allowed to benefit from the insolvency proceeding in this way without the burden of complying with orders made in that proceeding. [156 167] In these circumstances, the 1933 Act would apply to the Australian judgment and enforcement should be by way of registration under the 1933 Act rather than by the common law. In view of the conclusion that the Syndicate submitted to the Australian jurisdiction, the issue of enforcement under the Insolvency Act did not arise. However, Lord Collins expressed the opinion that the relevant subsections of the Insolvency Act were not concerned with enforcement of judgements having examined their construction and the statutory history. [152 154] Lord Clarke dissented on the Rubin appeal. He relied on the principle that avoidance orders made by a foreign courts in bankruptcy proceedings (personal or corporate), which the court has jurisdiction to entertain, were enforceable if it could fairly be said to have been made in personam or in rem. [193] It was possible to have a rem order incidental to bankruptcy proceedings but which is enforceable at common law, provided that the bankruptcy court has jurisdiction in the bankruptcy [195 6]. Avoidance orders are central to bankruptcy proceedings. To allow for their enforcement was in keeping with the principle of modified universalism requiring English courts, so far as is consistent with justice and UK public policy, to co operate with the courts in the country of the principal liquidation to ensure a companys assets are distributed to the creditors under a single system of distribution [199]. This would be worked out on a case by case basis depending on the facts of the particular case. [200 1]

Helredale playing field (the Field) is situated in Whitby, North Yorkshire, and is owned by Scarborough Borough Council (the Council). The issue raised in this appeal is whether the Field should be registered as a town or village green under section 15 of the Commons Act 2006. The Field is approximately two hectares and was acquired in 1951 by the predecessor local authority of the Council, who maintained the Field as recreation grounds pursuant to section 80(1) of the Housing Act 1936, now section 12(1) of the Housing Act 1985. For at least the last fifty years, the Field has been used extensively and openly by local inhabitants for informal recreation. The Council arranges for the regular mowing of the grass and the marking out of the football pitch. In October 2007 the Helredale Neighbourhood Council applied to the North Yorkshire County Council to register the Field as a town or village green under section 15 of the 2006 Act. Section 15 allows an application to register land as a town or village green where a significant number of inhabitants of the locality have indulged as of right in lawful sports and pastimes on the land for at least 20 years. An inquiry commissioned by North Yorkshire County Council concluded that, although a significant number of the inhabitants had indulged in lawful sports and pastimes on the land for at least 20 years, their use had not been as of right. North Yorkshire County Council accordingly rejected the application to register the Field as a town or village green in October 2010. Christine Barkas, a member of the Neighbourhood Council, applied for judicial review of this decision. Her application was unsuccessful and the Court of Appeal unanimously dismissed her subsequent appeal. Ms Barkas now appeals to this court. The Supreme Court unanimously dismisses the appeal. Lord Neuberger gives the main judgment, and Lord Carnwath gives a full supporting judgment. The other members of the Court agree with both judgments. The court rules that so long as land is held under a provision such as section 12(1) of the 1985 Act, members of the public have a statutory right to use the land for recreational purposes, and therefore use the land by right rather than as of right. The issue Where land is provided and maintained by a local authority pursuant to section 12(1) of the Housing Act 1985 or its statutory predecessors, is the use of that land by the public for recreational purposes as of right within the meaning of section 15(2)(a) of the Commons Act 2006 [12]? The meaning of as of right If a person uses privately owned land of right or by right, the use is rightful because it has been permitted by the landowner. However, if the use of such land is as of right, a number of cases relating to the acquisition of rights of way and other easements by prescription establish that it means that the use is without the permission of the landowner. Accordingly such use is not of right or by right, but is carried on as if it were by right, hence as of right. The significance of the word as is therefore crucial, making the expression as of right effectively the antithesis of of right or by right [14]. Rules of prescription have been created by a combination of statutory and common law under which the de facto enjoyment of land has to have been for twenty years not by force, nor stealth, nor licence of the owner before prescriptive rights are acquired. These three vitiating factors set out the circumstances in which it would have been reasonable to expect the owner to resist the exercise of the right [15]. Was the public use in this case as of right? So long as land is held under a provision such as section 12(1) of the 1985 Act, members of the public have a statutory right to use the land for recreational purposes, and therefore they use the land by right and not as trespassers, so that no question of use as of right can arise. A reasonable local authority in the Councils position would have regarded the presence of members of the public on the Field, walking with or without dogs, taking part in sports, or letting their children play, as being pursuant to their statutory right to be on the land and to use it for these activities [21]. Where the owner of the land is a local, or other public, authority which has lawfully allocated the land for public use, it is impossible to see how, at least in the absence of unusual additional facts, it could be appropriate to infer that members of the public have been using the land as of right simply because the authority has not objected to their using the land. It seems very unlikely that, in such a case, the legislature could have intended that such land would become a village green after the public had used it for twenty years. It would not merely be understandable why the local authority had not objected to the public use: it would be positively inconsistent with their decision to allocate the land for public use if they had done so. The position is very different from that of a private owner, with no legal duty and no statutory power to allocate land for public use, with no ability to allocate land as a village green, and who would be expected to protect his or her legal rights [24]. The proceedings in Beresford The decision in Beresford v Sunderland City Council, in which the House of Lords held that the publics use for more than 20 years of land maintained by the local authority with that authoritys knowledge was as of right, should no longer be relied on. It is clear on the facts in that case that the city council and its predecessors had lawfully allocated the land for the purpose of public recreation for an indefinite period, and that, in those circumstances, there was no basis upon which it could be said that the public use of the land was as of right rather than by right [48 49]. Lord Carnwaths concurring judgment analyses the as of right test in context and explores Beresford in greater detail [51 87].

Under section 5(1) of the British Nationality Act 1948 the general rule was that British citizenship was available to a person by descent if his or her father was a citizen of the United Kingdom and Colonies at the time of the persons birth. But, if the persons father was himself a citizen by descent only, then unless either the person was born in a British controlled territory or the father was in Crown service at the time of the birth, it was normally a condition under section 5(1)(b) that the persons birth should be registered at a British consulate within a year. Citizenship by descent could not be transmitted through the female line. Regulations permitted a British consul to register a birth only if the child was eligible for British citizenship. The Respondent, Shelley Elizabeth Romein, was born in the USA in 1978. The 1948 Act was in force at that time. Ms Romeins father was a US citizen with no personal connection to the UK. Her mother had been born in South Africa and was a citizen of the United Kingdom and Colonies by descent, because her father (Ms Romeins grandfather) had been born in the UK. Ms Romeins mother swore an affidavit in which she said that, while pregnant with her and in South Africa, she contacted the British consulate in Johannesburg to enquire about British citizenship for her unborn child. She was correctly told that the child was ineligible because her only claim by descent was through her mother. The British Nationality Act 1981 removed the restriction to descent through the male line for those born after 1 January 1983 (subject to a five year transitional period). The 1981 Act was amended retrospectively in 2003 and 2009. Section 4C of the amended 1981 Act, as it stood when Ms Romein applied for citizenship and as it now stands, requires applications for citizenship to be dealt with on the assumption that the law had always provided for citizenship by descent from the mother on the same terms as it provided for citizenship by descent from the father. However, in 2013 when Ms Romein sought to take advantage of the change, her application for citizenship was rejected because she was unable to satisfy the condition of registration within a year. The reason why she was unable to do so was that although the law was now deemed at all material times to have allowed claims to citizenship by descent through the female line, at the time of Ms Romeins birth in 1978 the staff of British consulate, acting entirely properly under the law as it actually was, would have refused to register her birth because she was ineligible for citizenship. Ms Romein applied for judicial review of the decision refusing her citizenship application. The Lord Ordinary dismissed that application for judicial review. Ms Romein appealed to the Inner House of the Court of Session which allowed her appeal, quashed the refusal of her citizenship application, and remitted her citizenship application for reconsideration. The Supreme Court unanimously dismisses the appeal, although for reasons other than those given by the Inner House. Lord Sumption gives the judgment, with which Lady Hale, Lord Reed, Lord Hodge and Lady Black agree. The refusal of Ms Romeins citizenship application, notwithstanding the assumption in section 4C, on the ground that the consular staff would have properly refused to register her birth is a paradoxical result, calling for scrutiny [3]. There are logically only three possible solutions to this conundrum [9]. The first approach is that Section 4C requires one to assume not only that the law had always provided for citizenship by descent through the female line, but that consular officials at the time in fact acted on that basis. This is Ms Romeins case, which the Inner House substantially adopted [9(1)]. This involves formidable difficulties. First, the counterfactual assumption that the consular officials would have registered the birth is inconsistent with section 4C(3D), according to which it is not to be assumed that the registration requirement was met. The Court cannot accept the view of the Inner House that section 4C(3D) serves only to cast on the applicant the burden of proving his her of claim without the assistance of any presumption of fact. Subsection (3D) does not say that. Moreover, the applicant would bear the burden of proving his or her claim anyway. Second, there is a conceptual problem about making the operation of section 4C dependent on an enquiry conducted years later into the question of whether a parent would have wished or intended or attempted to take advantage of a then non existent right. Third, if the counterfactual assumption includes an assumption about the steps which the parents would have taken with a view to obtaining British citizenship for their children, then it would be open to an applicant to seek citizenship by descent on the basis that the mother would have moved to a British controlled territory for the birth, or that a parent would have entered or continued in Crown service in time for the birth. It seems extremely unlikely that Parliament expected the operation of section 4C to depend on that practically unanswerable question. Subsection (3D) appears to have been added precisely to rule out such unrealistic enquiries [10]. The second approach is that section 4C requires one to assume only that the law had always provided for citizenship by descent, but not to make any assumption that the facts were other than they actually were. This is the Advocate Generals case, which the Lord Ordinary substantially adopted. This accords with the literal words of section 4C, but its result is that citizenship by descent through the female line would be available under section 5(1)(b) of the 1948 Act only where persons were registered by mistake or in defiance of the regulations. It is difficult to see why Parliament should have intended to help only them. The Court cannot accept the suggestion that the intention behind section 4C was to allow claims to citizenship by descent from a woman only in cases where citizenship followed automatically from certain specified circumstances and was not dependent on a person taking steps, such as registering a birth. Section 4C as drafted would be an extraordinary way of doing that. Parliament is highly unlikely to have had any such intention. It would have significantly undermined the purpose of section 5(1)(b) of the 1948 Act for no discernible reason [9(2) 11]. The solution is to treat the registration condition in section 5(1)(b) as inapplicable in applications for citizenship by descent from the mother. This is the only way to give effect to section 4C(3), given that section 4C(3D) precludes any counterfactual assumption that the birth was registered [9(3) 12]. There are two objections to this solution. The Court accepts neither. The first is that it is said to lead to unacceptable discrimination between those born before and after the 1948 Act came into force. The Court prefers not to decide this point. It does not affect Ms Romeins case. It is enough to point out that, if there is any difference between the treatment of those two categories of people, it arises from the wording of the 1981 Act (as amended) [13 14]. The second objection is that this solution leads to a different form of gender discrimination, because claimants through the female line would be free of the registration condition whereas claimants through the male line under the previous law were not. This is not anomalous either: there is no current discrimination between applicants. There was historic discrimination between their parents. Section 4C simply corrects the remaining consequences [13, 15].

The appellant, Mr Kennedy, is a journalist with The Times. On 8 June 2007 he made a request to the Charity Commission under the Freedom of Information Act 2000 (the FOIA) for disclosure of information concerning three inquiries conducted by the Charity Commission between 2003 and 2005 into the Mariam Appeal, which was launched by Mr George Galloway in connection with the sanctions imposed on Iraq following the first Gulf War. The Charity Commission refused Mr Kennedys request on the ground that the information was subject to an absolute exemption from disclosure contained in section 32(2) of the FOIA. The Court of Appeal, overturning the decision of the Information Tribunal, held that the absolute exemption applied and dismissed Mr Kennedys request. The issues before the Supreme Court on Mr Kennedys appeal are: (a) whether section 32(2) of the FOIA contains, as a matter of ordinary statutory construction, an absolute exemption which continues after the end of an inquiry; and (b) if it does contain such an absolute exemption, whether that is compatible with Mr Kennedys rights under article 10 of the European Convention on Human Rights (the Convention). If section 32(2) were not so compatible, the following further issues would arise: (c) in the light of the duty in section 3 of the Human Rights Act 1998 to interpret primary legislation so far as it is possible to do so in a way which is compatible with the Convention rights, should section 32 be read down so that either: (i) the absolute exemption ceases with the end of the relevant inquiry; or (ii) it contains only a qualified exemption (requiring a general balancing of the competing public interests) rather than an absolute exemption; and (d) if it is not possible to interpret section 32(2) in a manner that is compatible with the Convention, whether the Supreme Court should make a declaration of incompatibility. [9] Lord Mance and Lord Toulson give the leading judgments with which a majority of the court agrees. Lord Sumption gives a concurring judgment. Lord Wilson and Lord Carnwath give dissenting judgments. As a matter of ordinary statutory construction, section 32(2) of the FOIA imposes an absolute exemption from disclosure that lasts until the relevant information is destroyed or for up to 30 (or in future 20) years under the Public Records Act 1958 (Lord Mance at [24 34], Lord Toulson at [102 104]). Mr Kennedy is not assisted by his reliance on the Convention as, in respect of his ability to obtain information, the Charities Act 1993 and the common law put Mr Kennedy in no less favourable position than he would be in if article 10 of the Convention were engaged (Lord Mance at [35 41], Lord Toulson at [105 132]). In any event, article 10 does not impose a freestanding positive duty of disclosure on public authorities (Lord Mance at [57 100]). Ordinary statutory construction The more natural interpretation of section 32(2) is that the absolute exemption continues after the end of the relevant inquiry. The words for the purposes of the inquiry or arbitration qualify the immediately preceding words in 32(2)(a) and (32)(2)(b) and refer to the original purpose for which the relevant documents were placed in the custody of, or were created by, a person conducting an inquiry. They do not refer to the purpose for which a public authority holds the documents at the time of a request for information. (Lord Mance at [24 28], Lord Toulson at [102 103]) The more natural interpretation is also a better fit with the scheme of the FOIA. Under section 62(1), a record becomes a historical record at the end of 30 years. Under section 63(1), information contained in a historical record cannot be exempt information by virtue of section 32. The natural inference is that information falling within section 32 would continue to be exempt for 30 years rather than cease to be exempt at the conclusion of an inquiry. (Lord Mance at [29 30], Lord Toulson at [104]) The relevance of Article 10 of the Convention The effect of section 32 is to take information falling within the absolute exemption outside the scope of the FOIA disclosure regime. The FOIA was never intended to determine whether or not such information should be disclosed. Instead, any question as to its disclosure will be governed by other rules of statute and common law. If the law otherwise entitles Mr Kennedy to disclosure or puts him in a position no less favourable regarding disclosure than that which could be provided under article 10, then there can be no basis for reading down section 32 or concluding it is inconsistent with article 10. (Lord Mance at [6 8, 35 42], Lord Toulson at [106]) Disclosure outside the FOIA In Lord Mances opinion, the Charity Commission has the power to disclose information to the public concerning inquiries on which it has published reports, both in pursuit of its statutory objective under the Charities Act 1993 (since replaced with the Charities Act 2011) of increasing public trust in, and the accountability of, charities, and under general common law duties of openness and transparency on public authorities. The exercise of that power will be subject to judicial review. Given the importance of the principles of openness and transparency, courts will apply a very high standard of review to any decision not to disclose information in answer to questions of real public interest raised by a journalist in relation to inquiries on which the Charity Commission has published reports, and would take into account similar factors and provide a no less favourable standard of protection for a person seeking information, as any review under article 10 of the Convention. [43 56] In Lord Toulsons opinion, open justice is a fundamental principle of common law. Judicial processes should be open to public scrutiny, unless and to the extent, that there are good reasons for secrecy. Letting in the light, is the best way of keeping those exercising the judicial power of the state, up to the mark and for maintaining public confidence. These underlying considerations apply also to any quasi judicial inquiries and hearings, such as an inquiry conducted by the Charity Commission, though the application of such principles will vary according to context. In conducting any judicial review of a decision not to disclose information, the High Court should exercise its own judgment on whether the open justice principle requires disclosure. [109 132] The scope of the right to receive information under article 10 Had it been necessary for the resolution of the appeal, the Supreme Court would have concluded that article 10 did not contain a freestanding right to receive information from public authorities. The recent developments in the case law of the European Court of Human Rights relied on by Mr Kennedy were not sufficient to justify a departure from the principle clearly established in a series of Grand Chamber decisions on article 10. (Lord Mance at [57 100]) Dissenting judgments Lord Wilson [160 201] and Lord Carnwath [202 248] would have allowed the appeal on the basis that Mr Kennedy had a right to receive the requested information under article 10 of the Convention. Lord Wilson and Lord Carnwath would read down s 32(2) such that the absolute exemption expired at the end of the relevant inquiry. This would preserve the FOIA as the mechanism for obtaining information, which they considered would offer a number of advantages to a person seeking information compared with a judicial review procedure.

The Appellant, MS, is a Pakistani national who entered the UK in 2011 at the age of 16 on a visitors visa. During the four preceding years, while still in Pakistan, he had been subjected to forced labour and physical abuse by relatives. One of them, his step grandmother, brought him to the UK by deceiving him into thinking this was for the purpose of his education. On arrival, he was forced to work for no pay, as arranged by his step grandmother for her own financial gain. He then moved from job to job for the next 15 months, under the control and compulsion of adults, as both the First tier Tribunal (FTT) and the Upper Tribunal (UT) later found. In September 2012, the Appellant came to the attention of the police, who referred him to a local authority social services department. They in turn referred him to the National Referral Mechanism (NRM), due to concerns as to his vulnerability and the possibility that he had been trafficked. However, in February 2013, the NRM decided, without meeting or interviewing the Appellant, that there was no reason to believe he was a victim of trafficking. The NRM considered that he was never under the control or influence of traffickers while in the UK and changed jobs freely. The Appellant sought judicial review of this decision in April 2013. In September 2012, the Appellant had also claimed asylum, but that application was rejected in August 2013. The Secretary of State therefore decided to remove the Appellant from the UK. The Appellant appealed this decision on asylum and human rights grounds to the FTT, who found as above that he had been under compulsion and control. The FTT nonetheless dismissed his appeal. The UT granted permission to appeal and re made the decision in view of errors of law by the FTT, finding in favour of the Appellant. In addressing the NRMs decision, the UT observed that that could only be challenged by judicial review proceedings, not through the immigration appeals system. However, the UT also held that if an NRM decision was perverse or otherwise contrary to some public law ground, the UT could make its own decision as to whether an individual was a victim of trafficking. Otherwise, the decision to remove him would be contrary to the European Convention on Action against Trafficking in Human Beings (ECAT) and the European Convention on Human Rights (ECHR). The Respondent appealed to the Court of Appeal, which allowed the appeal for the reason that, in accordance with AS (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 1469; [2014] Imm AR 513, the UT could only go behind the NRMs decision and re determine the factual issues as to trafficking if the decision was perverse or irrational or one which was not open to the NRM. The UT had in effect treated the NRM decision as an immigration decision and had also been wrong to consider that the obligations under ECAT were also positive obligations under article 4 of the ECHR, which prohibits slavery, servitude and forced labour. The Appellant was granted leave to appeal to the Supreme Court. He later wished to withdraw from the proceedings, as his immigration problems had now been resolved. A preliminary issue therefore arose as to whether the Equality and Human Rights Commission (EHRC), which had applied to intervene in the proceedings, could take over the appeal. The Supreme Court unanimously allows the appeal. Lady Hale gives the only judgment, with which Lord Kerr, Lady Black, Lord Lloyd Jones and Lord Briggs agree. As to the preliminary issue, following a hearing in October 2019, the EHRC was permitted to intervene and take over the appeal. An intervener is a party to an appeal (Rules of the Supreme Court, rule 3(1)) and an appeal can only be withdrawn with the consent of all parties or the permission of the Court (rule 34(1)). The appeal therefore remained on foot until the Court permitted otherwise. The Court is permitted to adopt any procedure consistent with the overriding objective, the Constitutional Reform Act 2005 and the Rules (rule 9(7)). The overriding objective is to secure that the Court is accessible, fair and efficient (rule 2(2)). Where an important question of law that may have been decided wrongly below is raised in an appeal, it is open to the Court to permit intervention and allow the intervener to take over the conduct of the appeal [9 10]. On the principal issue, the Secretary of State conceded that, when determining an appeal as to whether a removal decision would infringe rights under the ECHR, a tribunal must determine the relevant factual issues for itself on the evidence before it, albeit giving due weight to a decision making authoritys prior determination. It therefore became common ground that a tribunal is not bound by a decision of the NRM nor must it seek a public law ground for finding such a decision flawed [11]. This is because a tribunal has statutory jurisdiction to hear appeals from immigration decisions. The Nationality, Immigration and Asylum Act 2002 and Immigration Rules indicate that those appeals are plainly intended to involve the hearing of evidence and determination of factual issues. The House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167 had made clear that this was a tribunals role [12 14]. The proper consideration and weight to be given to an authoritys previous decision will depend on the nature of that decision and its relevance to the issue before the tribunal. In the present case, the FTT and the UT were better placed to decide whether the Appellant was a victim of trafficking than the authority. The more difficult question was the relevance of that factual determination to the appeals [15]. This depended upon the relationship between the obligations in ECAT and the obligations in article 4 of the ECHR [17]. Article 4 of ECAT defines trafficking such that a child, recruited and transported for the purpose of exploitation through forced labour or services, may be considered a victim of trafficking [18]. ECAT also imposes other obligations on states, to prevent trafficking and to identify and protect its victims [19]. In Siliadin v France (2006) 43 EHRR 6, the European Court of Human Rights held that states have positive obligations under article 4 of the ECHR to adopt and apply criminal law provisions against slavery, servitude, and forced labour. In Rantsev v Cyprus and Russia (2010) 51 EHRR 1, it held that trafficking within the meaning of article 4 of ECAT fell within the scope of article 4 of the ECHR. The state had a positive obligation to prevent, to investigate, to protect and to punish [23 26]. This was confirmed in Chowdury v Greece (Application No 2184/15) and in J v Austria (Application No 58216/13) [32 33]. The investigative duty arises whether or not there has been a complaint and must be capable of leading to the identification and punishment of the individuals responsible [25]. In the present case, the UT decided that the Appellant was indeed a victim of trafficking. Once brought to the attention of police, the Appellant was removed from the risk of further exploitation, while the UT held that he would not be at risk of re trafficking if returned to Pakistan. However, there had not yet been an effective investigation into the breach of article 4, as the police took no action after referring him to social services. Such an investigation is required and cannot take place if the Appellant is removed to Pakistan. The appeal is therefore allowed and the UTs decision on this ground restored [34 36].

This appeal is about the jurisdiction of the High Court to grant bail. In 1973 Martin Corey was sentenced to life imprisonment for murdering two police officers. The respondent, the Secretary of State for Northern Ireland, released him on licence in 1992. The Secretary of State referred Mr Coreys case to the parole commissioners on 13 April 2010 to ask whether his licence should be revoked. The next day a single parole commissioner recommended that it should be. That recommendation was based on material the Secretary of State supplied, including confidential information from the security services. The Secretary of State accordingly revoked Mr Corys licence on 15 April 2010. Mr Corey was taken into custody the next day and has been in prison since then. Mr Coreys case was then referred, as required, to the commissioners. The Secretary of State provided information including a gist of material he had certified as confidential. The single commissioner who initially considered the case read these and the confidential material itself. In accordance with her recommendation, a full panel of commissioners considered Mr Coreys case at a closed hearing on 25 January 2011. His interests were represented by a special advocate, who, like the panel, was entitled to see a statement of all open and closed material relevant to the case, including anything undermining the Secretary of State's case. Mr Cory and his own legal representatives were allowed to see a similar statement in respect of the open material, but not of the closed material. On 15 August 2011 the panel gave both closed and open judgments. In the open judgment, they stated that Mr Corey had become involved in the Continuity Irish Republican Army from early 2005 and was in a position of leadership in it from 2008 until his recall to prison. Since the panel were satisfied that Mr Corey posed a risk of serious harm to the public, they were required to refuse to direct his release. Mr Cory sought judicial review of the commissioners decision on the grounds (among others) (1) that the gist disclosed inadequate information and (2) that the refusal to direct his release had been based solely or to a decisive degree on the closed material and so breached article 5(4) of the European Convention on Human Rights. Article 5(4) provides, Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Mr Justice Treacy held on 9 July 2012 that the commissioners decision was indeed based solely or decisively on the closed material. He further found that the allegations in the open material were not specific enough to allow Mr Corey, through his lawyers and the special advocate, to refute them. The commissioners hearing therefore breached his right to procedural fairness under article 5(4). Instead of quashing the commissioners decision, however, Mr Justice Treacy directed them to reconsider the case in accordance with his ruling. He also gave Mr Corey bail pending their decision, since his detention would be in the meantime unlawful. The Secretary of State immediately applied for a stay of that order and appealed it. On 11 July 2012 the Court of Appeal decided that the judge did not have power to grant bail, and so stayed that grant. This Court granted Mr Corey permission to appeal on the bail issue. Meanwhile, the Court of Appeal allowed the Secretary of States appeal on the article 5(4) issue, which had been heard separately. The Court of Appeal concluded that the material which had been provided allowed Mr Corey to instruct his advisers effectively, and so article 5(4) was complied with. This Court refused Mr Corey permission to appeal on that issue. Whether the High Court could grant him bail is therefore academic, but important enough that this Court allowed the appeal to proceed on that issue. The Supreme Court unanimously dismisses Mr Coreys appeal. Lord Kerr, with whom the other Justices agree, concludes that the High Court in Northern Ireland has an inherent jurisdiction to grant bail [1819], provided certain conditions are met. The question is whether those conditions are met in this case. They are that it is (a) necessary for the effective disposal of Mr Coreys claim and (b) not contrary to the purpose or spirit of the legislation in question that the court should have power to order his release pending reconsideration of his case by the commissioners [2122]. The judges order that the review of Mr Coreys detention had not been conducted lawfully and that it should be reconsidered was, on its own terms, a full vindication of the right which the appellant had asserted. On that ground alone, the judge did not have power to order Mr Coreys release [27]. It is important to bear in mind that in the present case the lawfulness of Mr Coreys detention on foot of his recall to prison was not directly in issue. The focus of his challenge was to the commissioners failure to direct his immediate release and the manner in which their determination was made [25]. In any event, an inherent jurisdiction to order release in the circumstances of this case would run directly counter to the operation of the legislation in question in this case: the Life Sentences (Northern Ireland) Order 2001. One of the principal philosophies underlying the Order is expressed in article 6(4) which provides that the commissioners shall not direct a prisoners release unless satisfied that his confinement is no longer necessary to protect the public from serious harm. And article 3(2) requires that the commissioners have expertise from a variety of fields: one must hold or have held judicial office; one must be a psychiatrist; one must be a chartered psychologist; one must have experience of working with victims of crime; and must have expertise in the causes of delinquency or the treatment of offenders. This requirement reflects the need to have available a range of specialists who can contribute to what must often be a difficult debate as to whether the rigorous test set out in article 6(4) is satisfied. Put simply, the legislature has placed in the hands of a panel of experts the difficult decision as to when a life sentence prisoner should be released. Their role should not be supplanted by a judge who does not have access to the range of information and skills available to the commissioners [3133]. Lord Kerr notes in passing the European Court of Human Rights recent judgment in James v United Kingdom (2012) 56 EHRR 399, which appeared to suggest that, if a prisoner has not had a chance to take the steps necessary to meet the conditions for release, his detention would breach article 5(1) of the European Convention during those periods. Article 5(1) allows states to imprison people only when justified by law, and requires prisoners not lawfully detained to be released. Since it is unnecessary to decide the question in this case, Lord Kerr would defer decision on it until necessary. Lord Mance, with whom the remaining Justices agree, suggests that James should be interpreted as arising only from a secondary obligation, implied by article 5(1), to progress prisoners through the prison system. Such a breach would not require a prisoner to be released, but would entitle him to damages. These observations do not form part of the reasoning on which the judgment in this case was based.

The Appellant, referred to in these proceedings as JR38, was involved in serious rioting which took place in Derry in July 2010. At the time he was 14 years old. CCTV images taken of him in the course of rioting were later published in two newspapers as part of a police campaign designed identify individuals involved in the riots and also to discourage further sectarian rioting. The Appellant complained that the publication of the images breached his rights under Article 8 of the European Convention on Human Rights. Dismissing the application, the Divisional Court held that the Appellants Article 8 right was engaged because that the published image was of a child, where it was at least possible he was involved in serious public disturbances. This risked stigmatising the child and impairing his rehabilitation and reputation. The interference with Article 8 was justified, however, because it was necessary for the administration of justice and not excessive in the circumstances. The Supreme Court unanimously dismisses the appeal. Lord Kerr, with whom Lord Wilson agrees, holds that Article 8 is engaged but the interference with the right is justified. Lord Toulson, with whom Lord Hodge agrees, holds that Article 8 is not engaged, but if it were engaged the publication would be proportionate. Lord Clarke writes a separate judgment concurring with Lord Toulson. Lord Kerr examines the Strasbourg jurisprudence on engagement of Article 8 and concludes that a nuanced approach is needed to reach a conclusion on this issue [55]. The test is essentially a contextual one, involving not only whether the person asserting the right had a reasonable expectation of privacy but also many other possible factors such as the applicants age, consent, the risk of stigma and the use to which the published material is put. Reasonable expectation of privacy may be a factor of considerable weight but it is not determinative [56]. In the present case Article 8 is engaged because of JR38s age and the effect which the publication of the photographs may have on him. The emphasis under Article 8 should be on the publication of the photographs rather than the activity in which the Appellant was engaged [65]. Lord Kerr concludes, however, that the interference with Article 8 is justified. The police were entitled to disclose the image under the Data Protection Act 1998 as the publication was for the purposes of the prevention and detection of crime and the apprehension and prosecution of offenders [70]. Publication furthered these objectives as well as seeking to divert young people from criminal activity [73]. The polices painstaking approach showed that this was a measure of last resort [76 77]. The publication struck a fair balance between the interests of the Appellant and the community. Appellant stood to benefit from being diverted from criminal activity, as did his community from the prevention of crime and apprehension of offenders [79 80]. Lord Toulson concludes that Article 8 is not engaged. The touchstone for engagement of Article 8 is whether the person seeking to assert their rights had a reasonable expectation of privacy [88]. The fact that the Appellant was a child at the relevant time does not justify using another test but may be relevant to its application [95]. It is an objective test [98]. There was no reasonable expectation of privacy in these circumstances. Article 8 does not exist to protect rioting and the Appellants involvement in the riot was not an aspect of his private life which he was entitled to keep private [100]. Alternatively, if Article 8 were engaged, any interference with the Appellants Article 8 right was justified for the reasons given by Lord Kerr [103]. Lord Clarke holds that Article 8 was not engaged or, alternatively, that any engagement was justified. The relevant test is whether there was a reasonable expectation of privacy [107]. The Appellant could not have had an objectively reasonable expectation that such photographs would not be published [112].

These appeals concern the making of orders for possession of a persons home in favour of a local authority. The issue is whether, in circumstances where the occupier is not a secure tenant, the court that makes the order must consider the proportionality of making it. Most residential occupiers of property owned by local authorities are secure tenants under the Housing Act 1985. This restricts the circumstances in which they can be evicted. Certain types of tenancy, however, are excluded from that regime. The case of London Borough of Hounslow v Powell involved one such type: accommodation provided under the homelessness regime in Part VII of the Housing Act 1996. In order to regain possession of such accommodation, domestic law requires only that the local authority must give notice to quit and obtain a court order. Ms Powell, as a homeless person to whom the local authority owed a duty to provide accommodation, had been given a licence to occupy property under Part VII. Rent arrears of over 3,500 accumulated and the local authority issued a claim for possession of the property. The court hearing the claim made an order requiring Ms Powell to give up possession. The cases of Leeds City Council v Hall and Birmingham City Council v Frisby involved a second type of non secure tenancy: introductory tenancies entered into under Part V of the Housing Act 1996. This type of tenancy is designed to provide an initial period of probation. It remains introductory for a period of one year, after which it becomes secure unless the introductory tenancy has been terminated. If the local authority decides to terminate the introductory tenancy the tenant is entitled to a review of that decision, but once the relevant procedures have been gone through section 127(2) of the 1996 Act provides that the court shall make a possession order. Mr Hall and Mr Frisby had both been granted introductory tenancies, by Leeds and Birmingham City Councils respectively. Allegations were made against them of noise nuisance and anti social behaviour. The local authorities served notices indicating their intention to seek possession, which were upheld on review. In possession proceedings the courts found in favour of the local authorities. The three occupiers appealed to the Court of Appeal. They argued that Article 8 of the European Convention on Human Rights, which provides that Everyone has the right to respect for his home, required that the court hearing the possession proceedings must be able to assess the proportionality of making the orders against them. As the court did not do this, there was a breach of their Article 8 right. The Court of Appeal dismissed the appeals and the occupiers appealed to the Supreme Court. The Supreme Court unanimously holds that a court must have power to consider the proportionality of making possession orders under the homelessness and introductory tenancy schemes. In the cases of Powell and Hall the Court allows the appeals and, having considered the facts in the case of Frisby, it dismisses his appeal. Lord Hope and Lord Phillips give judgments. These cases were a sequel to the case of Manchester City Council v Pinnock [2010] UKSC 45. There the Supreme Court held that Article 8 of the European Convention on Human Rights requires that a court, which is being asked to make a possession order against a person occupying under the demoted tenancy scheme in Part V of the Housing Act 1996, must be able to consider whether it would be proportionate to do so. The present cases raised the question of whether that principle applied to the homelessness and introductory tenancy schemes and, if so, how cases of this kind should be dealt with in practice by the courts. The Court held that the principle from Pinnock applied to the homelessness and introductory tenancy schemes: in all cases where a local authority seeks possession of a property that constitutes a persons home under Article 8, the court must be able to consider the proportionality of making the order. [3] The Court then set out general guidance on meeting this requirement. A court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and has crossed the high threshold of being seriously arguable. The threshold will be crossed in only a small proportion of cases. The question then will be whether making an order for possession is a proportionate means of achieving a legitimate aim. Two legitimate aims should always be taken for granted: the making of the order will (a) vindicate the authoritys ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. The authority is not required to plead in advance any more particularised reasons or to advance a positive case that possession would accord with the requirements of Article 8: such a requirement would collapse the distinction between secure and non secure tenancies. Where the local authority has a particularly strong or unusual reason for seeking possession, however, it is entitled to ask the court to take that reason into account and it should plead the reason if it wishes the court to do so. If a court entertains a proportionality argument, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order sought. [33] [49] On the face of it, section 127(2) of the Housing Act 1996 gives the court no discretion in the case of an introductory tenancy. But this does not prevent the court considering proportionality. Given that lawfulness is an inherent requirement of the procedure for seeking a possession order, it is open to the court to consider whether that procedure has been lawfully followed in respect of the defendants Article 8 rights. [56] Section 89 of the Housing Act 1980, however, does restrict the courts discretion as to the period for which the taking effect of the order can be deferred. The section provides that a court making a possession order cannot postpone the date for possession for more than fourteen days or, in the case of exceptional hardship, six weeks. The Supreme Court held that the mandatory language of the section prevents a court allowing a longer period to comply with the requirements of proportionality. There was, however, no indication that proportionality requires a longer period and therefore no reason to declare section 89 incompatible with Article 8. [64]

The appellant (Mrs Takhar) and the third respondent (Mrs Krishan) are cousins. The second respondent (Dr Krishan) is Mrs Krishans husband. Mrs Takhar and Mrs Krishan became reacquainted in 2004. At this time, Mrs Takhar was suffering from some personal and financial problems, arising mainly from the condition of a number of properties which she owned. In November 2005, it was agreed that the legal title to the properties would be transferred to Gracefield Developments Limited (Gracefield). This was a newly formed company, of which Mrs Takhar and the Krishans were to be the shareholders and directors. Mrs Takhar claims that it was agreed that the properties would be renovated, initially at the cost of the Krishans, and then let. She says that the rent would be used to meet the costs of the renovations but that she was to remain the beneficial owner of the properties. The Krishans case is that Gracefield was set up as a joint venture company and the properties were to be sold after they had been renovated. They say Mrs Takhar was to receive an agreed value for the properties and that any additional profit would be divided equally between Mrs Takhar and the Krishans. On 24 October 2008, Mrs Takhar issued proceedings claiming that the properties had been transferred as a result of undue influence or other unconscionable conduct on the part of the Krishans. At a trial before His Honour Judge Purle QC (HHJ Purle), a significant item of evidence was a scanned copy of a written profit share agreement, apparently signed by Mrs Takhar, which supported the Krishans case. In advance of the trial, Mrs Takhar applied for leave to obtain evidence from a handwriting expert. That application was refused. At the trial, she said that she was unable to assert that the signature was not hers but that she was unable to say how it had come to appear on the document. In the absence of an explanation from Mrs Takhar, HHJ Purle accepted the Krishans evidence and rejected Mrs Takhars claim. Following the trial, Mrs Takhar engaged a handwriting expert, who stated conclusively that the signature on the agreement had been transposed from an earlier document. On receipt of this report, Mrs Takhar sought to have HHJ Purles judgment and order set aside on the ground that it had been obtained by fraud. The respondents claimed that this application was an abuse of process because the documents on which the expert report was based were available to Mrs Takhar before the trial before HHJ Purle. This matter was tried as a preliminary issue. Mr Justice Newey did not agree that the claim was an abuse of process. The Court of Appeal allowed the respondents appeal, holding that a person who seeks to have a judgment set aside on account of fraud had to show that the fraud could not have been discovered by reasonable diligence. Mrs Takhar now appeals to the Supreme Court. The Supreme Court unanimously allows the appeal. It decides that a person who applies to set aside an earlier judgment on the basis of fraud does not have to demonstrate that the evidence of this fraud could not have been obtained with reasonable diligence in advance of the earlier trial. Lord Kerr, Lord Sumption, Lord Briggs and Lady Arden all write judgments. Lord Kerr (with whom Lord Hodge, Lord Lloyd Jones and Lord Kitchin agree): The existence or non existence of fraud had not been decided by HHJ Purle. It is therefore a new issue which does not involve the re litigation of an identical claim [21]. The former House of Lords and Privy Council authorities on which the respondent relied are not authority for the proposition that, in cases where it is alleged that a judgment was obtained by fraud, it may only be set aside where the party who makes that application can demonstrate that the fraud could not have been uncovered with reasonable diligence in advance of the judgment [54]. It is a basic principle that the law does not expect people to arrange their affairs on the basis that others may commit fraud [44]. Australian and Canadian courts have both recognised a special place occupied by fraud in the setting aside of judgments and the reasoning in these cases is compelling [48 52]. It is contrary to justice that a fraudulent individual should profit because their opponent fails to act with reasonable diligence. A person who obtains a judgment through fraud deceives not only their opponent but also the court and the rule of law. It would also seem wrong if a person could be sent to prison for fraudulent conduct and yet remain able to enforce a judgment they obtained because of that fraud [52]. Lord Sumption (with whom Lord Hodge, Lord Lloyd Jones and Lord Kitchin agree): An action to set aside an earlier judgment for fraud is not a procedural application but a cause of action [60]. This cause of action is independent of the cause of action asserted in the earlier proceedings and there can therefore be no question of cause of action estoppel. There is also no question of issue estoppel, because the basis of the action is that the earlier decision is vitiated by fraud and cannot bind the parties [61]. Abuse of process is a concept relating to the courts procedural powers. Previous House of Lords cases have established that where a question could have been but was not raised in earlier proceedings, the courts power to restrain abusive re litigation is subject to a degree of flexibility [62]. Re litigation is abusive not only where the point could have been argued previously but where it should have been. A person is entitled to assume honesty on the part of others, so an application would only be abusive if a claimant deliberately decided not to investigate a suspected fraud or rely on a known one [63]. A more flexible and fact sensitive approach to these cases would introduce an unacceptable element of discretion into the enforcement of a substantive right. The standard of proof for fraud is high but, once it is satisfied, there are no degrees of fraud which can affect the right to have a judgment set aside [64]. Lord Briggs: This case involves a conflict between two important and long established principles of public policy. Firstly, the principle that fraud unravels all and, secondly, the principle that there must come an end to litigation. In this case, the fraud principle should prevail. However, instead of a bright line rule, the court should apply a fact intensive approach to the question of whether a lack of diligence in earlier proceedings really does render a future claim to set aside a judgment on the basis of fraud an abuse of process. This should start from the position that a litigant has a legal right to have set aside a judgment obtained by fraud which is not dependant upon having exercised reasonable diligence in the earlier proceedings. [68]. Lady Arden: There is no reasonable diligence rule barring fresh actions based on fraud [91]. Usually, a judgment obtained by fraud should be set aside. It is wrong in principle that a fraudster should retain the fruits of his fraud but there are some exceptions to this rule [92 93]. If a party suspected a fraud and did not investigate it, any restriction on access to court would have to be compliant with the European Convention on Human Rights, so any restriction on the claimants rights could go no further than necessary [94]. There are factors on both sides. However, the reasonable diligence rule is illogical as it automatically imposes a sanction which could be wholly disproportionate to the lack of diligence [98]. There are already safeguards for the defendant and the Civil Procedure Rules Committee could consider whether further safeguards are needed [99 103].

The Freedom of Information Act 2000 (FOIA 2000) enables members of the public to see documents held by many public bodies, subject to certain exemptions; the Environmental Information Regulations 2004 (EIR 2004) enables members of the public to see documents containing environmental information, again subject to certain exemptions. In April 2005, Mr Evans, a journalist who works for the Guardian newspaper, requested disclosure of communications passing between various government departments and HRH the Prince of Wales (the letters). The requests were made under both FOIA 2000 and EIR 2004. The Departments refused to disclose the letters on the ground that they considered the letters were exempt. Mr Evans complained to the Information Commissioner, who upheld the Departments refusal. Mr Evans then appealed to the Information Tribunal, and the matter was transferred to the Upper Tribunal. The Upper Tribunal conducted a full hearing with six days of evidence and argument. In its determination issued 18 September 2012, the Upper Tribunal decided that many of the letters (referred to as advocacy correspondence) should be disclosed. The Departments did not appeal this decision, but on 16 October 2012 the Attorney General issued a certificate under section 53(2) FOIA 2000 and regulation 18(6) EIR 2004 stating that he had, on reasonable grounds, formed the opinion that the Departments had been entitled to refuse disclosure of the letters, and set out his reasoning. If this Certificate is valid, its effect would be to override a decision of the Upper Tribunal, a judicial body which has the same status as the High Court. Mr Evans issued proceedings to quash the Certificate on the grounds (1) that the reasons given by the Attorney General were not capable of constituting reasonable grounds and/or (2) in so far as the advocacy correspondence was concerned with environmental issues, the Certificate was incompatible with Council Directive 2003/4/EC (the 2003 Directive). The Divisional Court dismissed his claim. However, the Court of Appeal allowed his appeal on both grounds. The Attorney General appealed to the Supreme Court. The issue before the Supreme Court was therefore whether the Certificate is valid, and in particular (i) whether the Attorney General was entitled to issue a certificate under section 53 FOIA 2000 that he had on reasonable grounds formed the opinion that the Departments had been entitled to refuse disclosure; (ii)(a) whether, in any event, regulation 18(6) EIR 2004 complies with the relevant provisions of EU law; and (b) if it does not, whether the Certificate can stand even in relation to the non environmental information. It should be noted that the Supreme Court has not seen the advocacy correspondence, and did not need to do so in order to determine the points of law set out above. The Supreme Court dismisses the Attorney Generals appeal. By a majority of 5:2 the Court considers that the Attorney General was not entitled to issue a certificate under section 53 FOIA 2000 in the manner that he did and therefore that the Certificate was invalid. By a majority of 6:1 the Court holds that reg.18(6) is incompatible with the 2003 Directive and must be treated as invalid, and therefore that the Certificate would in any event have been invalid insofar as it related to environmental information. The appeal based on FOIA 2000 Lord Neuberger (with whom Lord Kerr and Lord Reed agree) concludes that section 53 FOIA 2000 does not permit the Attorney General to override a decision of a judicial tribunal or court by issuing a certificate merely because he, a member of the executive, considering the same facts and arguments, takes a different view from that taken by the tribunal or court. This would be unique in the laws of the United Kingdom and would cut across two constitutional principles which are fundamental components of the rule of law, namely that a decision of a court is binding between the parties and cannot be set aside, and that decisions and actions of the executive are reviewable by the courts, and not vice versa [52]. Clear words must be used if the statute is to have that effect, and section 53 is a very long way from being clear enough [58 59]. Lord Mance (with whom Lady Hale agrees) considers that it would be open to the Attorney General to issue a certificate under section 53 if he disagrees with the decision of the Upper Tribunal. However, disagreement with findings of fact or rulings of law in a fully reasoned decision would require the clearest possible justification (and may only be possible in the circumstances suggested by Lord Neuberger at [71 79]), while disagreement as to the weight to be attached to competing public interests would require properly explained and solid reasons [130 131]. In this case the Attorney General impermissibly undertook his own redetermination of the relevant factual background, including certain constitutional conventions on which the Upper Tribunal had heard detailed evidence, which he was not entitled to do. The Attorney Generals certificate does not engage with the closely reasoned analysis of the Upper Tribunal [142]. The Certificate proceeded on the basis of findings which differed radically from those made by the Upper Tribunal without real or adequate explanation, and cannot be regarded as satisfying the test for issue of a certificate [145]. Lord Wilson and Lord Hughes each give judgments dissenting on this issue. They each consider that the Attorney General was entitled to issue the certificate under section 53 on the ground that he did. Environmental information under the 2003 Directive Lord Neuberger and Lord Mance (with whom Lady Hale, Lord Kerr, Lord Reed and Lord Hughes agree) point out that article 6.1 requires that, following a refusal by a public authority of a request for environmental information, the refusal must be reconsidered or reviewed administratively, article 6.2 requires that thereafter the applicant has access to a review procedure before a court of law or [similar] body] whose decisions may become final, and article 6.3 requires that [f]inal decisions under paragraph 2 shall be binding on the public authority holding the information [100]. In light of these provisions, they consider that it would be impermissible for the executive to have another attempt at preventing disclosure, and therefore regulation 18(6) EAIA 2004 is incompatible with article 6 of the 2003 Directive [103]. However, this conclusion would only apply to the environmental information [111]. Lord Wilson dissenting on this point, would have held that the issue of a section 53 certificate in respect of environmental information whose disclosure was ordered by a court or judicial tribunal was not incompatible with the provisions of the 2003 Directive.

This appeal arises out of the trial of nine men on charges involving organised child sex grooming and child prostitution in the Oxford area as part of Thames Valley Polices Operation Bullfinch. On 14 May 2013 seven of the men were convicted. The appellant is a prominent figure in the Oxford area, who was arrested at about the same time as the nine and was released on bail. The reason for his arrest was that one of the complainants had told the police that she had been abused by a man with the same, very common, first name. She failed, however, to pick him out at an identity parade. He was later told by police that he would be released from arrest without charge, but that the case would be kept under review. That remains the position. The Times and the Oxford Mail wish to publish information identifying the appellant as someone who had been arrested, bailed, his passport impounded and then de arrested in connection with Operation Bullfinch, or as someone suspected by the police of being involved in sexual offences against children. Magistrates originally granted an injunction shortly after the appellants arrest, prohibiting the disclosure of any information which might identify the appellant until such time as he was charged with an offence. At trial the judge made an order which ultimately prohibited the publication of any report which referred to evidence which might identify or tend to identify the appellant until a decision had been made whether or not to charge him. A significant part of the relevant complainants evidence related to a man who shares the appellants first name. The appellant was also referred to a number of times in the course of the trial: in a police officers evidence of his attendance at an identity parade; in the evidence of at least one of the defendants; and in the closing speeches of prosecuting and defence counsel. After the police released the appellant from arrest without charge, the newspapers applied to lift the order on the ground that there were now no pending or imminent proceedings against the appellant which might be prejudiced by publication. The judge circulated a draft ruling stating that he proposed to lift the order, but never formally did so. The matter moved to the High Court where the appellant applied for an interim injunction restraining publication, on the basis that it was necessary to protect him against the misuse of private information and the infringement of his right to private and family life protected by article 8 of the European Convention on Human Rights (ECHR). The judge dismissed the application, and the Court of Appeal dismissed the appellants subsequent appeal. By a majority of 5 to 2, the Supreme Court dismisses the appeal. Lord Sumption gives the judgment, with which Lord Neuberger, Lady Hale, Lord Clarke and Lord Reed agree. Lord Kerr and Lord Wilson write a joint dissenting judgment. With limited exceptions, the English courts administer judgments in public, at hearings which any member of the public may attend and which the press may report [12]. The limits on permissible reporting of public legal proceedings are set by the law of contempt, defamation and the law protecting ECHR rights [17]. The present appeal turns on the last category. In Campbell v MGN Ltd, the House of Lords expanded the scope of the equitable action for breach of confidence by absorbing into it the values underlying articles 8 (right to respect for private and family life) and 10 (freedom of expression) of the ECHR. This effectively recognised a qualified common law right of privacy [21]. The legal basis of the judges analysis was challenged in two respects. Firstly, it was argued that the decision of the Supreme Court in A v British Broadcasting Corporation marked a new approach to the balancing test between competing rights laid out in In re S (Identification: Restrictions on Publication). In A the Court had dismissed the BBCs application to lift an order prohibiting identification of a deportee who had been convicted of child sex offences because it would not only have violated his article 2 and 3 ECHR rights, but would have also subverted the basis of the decision to authorise his deportation. That argument fails in the present case because while A turned on very particular facts, the general approach adopted in Lord Reeds leading judgment was in fact very similar to that of Lord Rodger in In re Guardian News and Media Ltd [28, 33]. The second argument was that in adopting Lord Rodgers observations in In re Guardian News and Media Ltd about the publics ability to distinguish between suspicion and guilt, the judge had applied a legal presumption which was not warranted. This also fails: Lord Rodger was not presenting this as a legal presumption to be applied irrespective of the circumstances. This part of the judges reasoning was doing no more than saying that while some members of the public would equate suspicion with guilt, most would not [33]. The judge committed no error of law, and was entitled to reach the conclusion that he did [34]. The appellant seeks to prohibit the reporting of matters discussed at public trial. These are not matters about which he can have had any reasonable expectation of privacy [34(1)]. The impact on the appellants family life is indirect and incidental: neither he nor his family participated in any capacity at trial, and nothing that was said at trial related to his family. It would be incoherent for the law to refuse an injunction to prevent damage to the appellants reputation directly, while granting it to prevent the collateral impact on his family life in the same circumstances [34(3)]. Lord Sumption would not, however, rule out the possibility of a pre emptive injunction in a case where the information was private or there was no sufficiently substantial public interest in publication. Such cases will be rare in relation to the reporting of public court proceedings [34(4)]. The public interest in allowing the press reporting of court proceedings extends to the appellants identity. The policy which permits media reporting on judicial proceedings depends on (i) the right of the public to be informed about a significant public act of the state, and (ii) the laws recognition that the way in which the story is presented is a matter of editorial judgment. The appellants identity is not an irrelevant feature of this particular story [34(5)]. In their dissenting judgment, Lord Kerr and Lord Wilson consider that the judge had erred in his approach to balancing the strength of the rival considerations [39]. They take the view that Lord Rodger was stating a legal presumption that courts should act on the basis that most people believe that someone charged with an offence is innocent until proven guilty [44 5], but that he had offered no evidence or authority to support such a presumption. Lord Kerr and Lord Wilson conclude that there was no basis for the presumption and, accordingly, the judge erred in dismissing the appellants application because of it. Their Lordships also indicate that, under article 8, it is likely that the appellant would have established his right to an injunction at full trial [59].

These two appeals raise common issues regarding the scope of the Ruiz Zambrano v Office national de lemploi (Case C 34/09) [2012] QB 265 (Zambrano) principle. Zambrano states that a non member state national (TCN) parent of a European Union (EU) citizen child resident within the EU is entitled to reside in the EU. This is solely to avoid the EU citizen child being deprived of the substance of their Union citizenship rights on removal of the TCN parent from the EU [1]. The first appeal is Mr Patels. Mr Patel is an Indian national who has no right to remain in the UK. He cares for his parents, who are British citizens. Mr Patel has been trained to help with his fathers kidney dialysis, and he cares for his immobile mother. Mr Patels parents are reliant on him. The medication required for dialysis may not be available in India. The First tier Tribunal (FTT) found that Mr Patels father would not return to India with Mr Patel; instead, he would continue to receive medical treatment in the UK, although that would not give him the same quality of life as Mr Patels care. Mr Patel was unsuccessful in invoking the Zambrano principle in the FTT, the Upper Tribunal (UT) and Court of Appeal (CA) [5]. Mr Patel appeals. The second appeal is Mr Shahs. Mr Shah is a Pakistani national. He is the primary carer of his British citizen infant son. Mr Shahs wife is also a British national. Mr and Mrs Shah live with their son. Mrs Shah works full time. Whilst Mrs Shah works, Mr Shah cares for their son. The FTT found that if Mr Shah were to return to Pakistan, Mrs Shah would not remain in the UK; she would accompany her husband to Pakistan. Their child would also leave the UK. As a result, the FTT and UT found that Mr Shah was entitled to remain. The CA disagreed and held that Mrs Shah could look after the son in the UK; the requirement for compulsion to leave the UK was therefore not satisfied [6]. Mr Shah appeals. The Supreme Court unanimously allows Mr Shahs appeal and dismisses Mr Patels appeal. Lady Arden writes the sole judgment [33]. Article 20 of the Treaty on the Functioning of the European Union (TFEU) provides for a right to EU citizenship. This lies at the heart of the EU legal architecture [9]. Article 20 alone does not confer any rights on a TCN (see R (Agyarko v Secretary of State for the Home Department [2017] 1 WLR 623) [10]. However, the CJEU in KA v Belgium (Case C 82/16) [2018] 3 CMLR 28 (KA) emphasised the importance of the right to EU citizenship and stated that a TCN might acquire a derived right of residence if their removal could deprive an EU citizen of their citizenship rights (KA, paras 47 50) The TCNs derived right of residence is only provided to ensure that the EU citizens rights are effective. This limits the entitlement of a TCN to reside in the EU. There must be a relationship of dependency between the EU citizen and the TCN [16]. KA draws a distinction between the case of an EU citizen who is an adult and one who is a child (KA, para 76) [13] [14], [23]. A TCN can have a relationship of dependency with an adult EU citizen sufficient to justify a derived right of residence only in exceptional circumstances (quoting KA, para 65) [17]. What lies at the heart of the Zambrano jurisprudence is the requirement that the EU citizen be compelled to leave the EU territory if the TCN, with whom the EU citizen has a relationship of dependency, is removed [22]. With that context, the judgment examines Mr Patel and Mr Shahs respective cases in turn. Regarding Mr Patel, the FTT concluded that Mr Patels father would not accompany him to India. Unless Mr Patel could argue that some case law from the CJEU, including Chavez Vilchez v Raad van Bestuur van de Sociale verzekeringsbank (Case C 133/15) [2018] QB 103 (Chavez Vilchez), relaxes the level of compulsion required in the case of adults, and thus provides assistance to Mr Patel, his appeal must fail. However, any possible qualification Chavez Vilchez makes to the general principle of compulsion does not apply in the case of adults. Chavez Vilchez is about children. KA makes clear that children and adults are treated separately and a TCN will only have a derivative right of residence by reference to a dependant relationship with an adult EU citizen in exceptional circumstances. Chavez Vilchez does not relax the level of compulsion required in the case of adults. It is of no assistance to Mr Patel. His appeal must fail as his parents would not be compelled to leave the UK [27]. Chavez Vilchez does not impact Mr Shahs appeal. That appeal depends on the FTTs findings of fact and whether the CA correctly identified the relevant findings for the purposes of the compulsion test. The FTT found that Mr Shah was the primary carer of his son; as such, the child had the relevant relationship of dependency with Mr Shah. Further, Mrs Shahs evidence was that if Mr Shah were removed from the UK then the family would move out of the EU. This was accepted by the FTT, who held that it was an inescapable conclusion that the son would have to leave with his parents. Therefore, the FTT found the requirement of compulsion was met [28]. The CA used the fact that Mrs Shahs decision to leave the EU was voluntary and she could look after the child without Mr Shah to justify holding that there was no question of compulsion [29]. The Supreme Court disagreed. The overarching question is whether the son would be compelled to leave with his father, who was his primary carer, because of his dependency on his father. In answering that question, the Supreme Court had to take into account the childs bests interests and his relationship with each parent, as explained in Chavez Vilchez, para 71. The compulsion test is practical. It is to be applied to the actual facts. The FTT found the son would be compelled to leave. That is sufficient compulsion for the purposes of Zambrano [30]. Therefore, Mr Shahs appeal was allowed [32] [33].

A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order (CTO). The question arising on this appeal is whether a patients responsible clinician (RC) may impose conditions in a CTO which amount to the deprivation of his liberty within the meaning of article 5 of the European Convention on Human Rights. The appellant, PJ, is 47. He has a mild learning disability and difficulties falling within the autistic spectrum. This has been accompanied by aggressive and irresponsible behaviour consisting of violent and sexual offending. He was convicted in 1999 of assault occasioning actual bodily harm and threats to kill, and the court imposed a hospital order on him under s 37 MHA. He was discharged from a medium secure unit to a unit which later became a hospital, where he remained voluntarily as an informal patient before, in May 2009, he was compulsorily detained for treatment under the civil power in s 3 MHA. In September 2011 he was discharged from hospital subject to a CTO, which required him to reside in a care home subject to close supervision, from which his absences were either escorted or subject to strict limits as to time, purpose and place. Before the Mental Health Review Tribunal (MHRT), PJ argued that the arrangements under the CTO amounted to an unlawful deprivation of his liberty and he should therefore be discharged from it. The MHRT held that they did not but, even if they had, the need for a CTO took precedence over any human rights issues. The Upper Tribunal held that this approach was wrong, but the Court of Appeal concluded that by necessary implication the MHA permitted such conditions in a CTO. It also held that the MHRT had no power to discharge the CTO even if its terms meant that the patient was unlawfully deprived of his liberty. The Supreme Court unanimously allows the appeal and declares that there is no power to impose conditions in a CTO which have the effect of depriving a patient of his liberty. Lady Hale, with whom all the other justices agree, gives the only reasoned judgment. CTOs were introduced into the MHA by amendment in 2007, as a new form of order which permitted patients to be released into the community subject to conditions which would support their continuing treatment [1]. The statutory regime is set out in ss 17A to 17F. The conditions in a CTO are imposed by a patients RC without judicial input. None of the elaborate provisions in the MHA authorising the detention of patients and their recapture if they escape or go absent apply to a community patient. There is no power to impose medical treatment on a community patient who has the capacity to consent to it and does not consent. There are no sanctions for failing to comply with the conditions in a CTO, but a patient may be recalled to hospital if he breaches certain conditions, or if he requires medical treatment and there would otherwise be a risk to his health or safety, or that of others [16]. The Welsh Ministers argued that as any conditions imposed in a CTO cannot be enforced they cannot therefore deprive a patient of his liberty [17]. This is indeed the legal effect of a CTO, but it does not mean that a patient has not in fact been deprived of his liberty. The focus is always on his concrete situation created by the conditions [18]. The fact that the purpose of the deprivation is to enhance rather than curtail the patients freedom does not affect this assessment [20 22]. There is no express power in s 17B(2) to impose conditions which have the effect of depriving a community patient of his liberty. It is a fundamental principle of statutory construction that a power expressed in general words should not be construed to interfere with fundamental rights such as the right to liberty of the person [24]. The test for a necessary implication is a strict one and there is no reason to suppose that Parliament would have included such a power in the MHA had it been thought of [26]. A strong indication to the contrary is the fact that CTO conditions cannot compel a patient to take his medication [27]; and the lack of detailed rules which the MHA would have provided had detention in a place outside hospital been contemplated [28]. If the MHRT finds on the facts that a community patient is being deprived of his liberty, it has no power to revoke or vary the conditions. The question therefore arises as to whether it should exercise its only power under the MHA to discharge the patient, or whether the patient must challenge his unlawful detention in an action for judicial review [30 32]. This problem is more theoretical than real for two reasons. First, although the MHRT has no jurisdiction over the conditions of treatment and detention in hospital, these can be relevant as to whether the statutory criteria for detention are made out; and the patients actual situation may well be relevant to whether the criteria for the CTO are made out. If, however, the patient needs to challenge his unlawful detention under a CTO other than by his right to make periodic applications to the MHRT, his remedy is either habeas corpus or judicial review [33]. Second, a conscientious RC can be expected not to impose conditions which this judgment makes clear are not permitted in a CTO, and this is reinforced by the duties to provide information to a patient and (usually) his nearest relative about the effect of a CTO [34].

This appeal and cross appeal arise from the 2008 collapse of the Lehman Brothers group (the Group). The Groups main trading company in Europe was Lehman Brothers International (Europe) (LBIE), an unlimited company. LB Holdings Intermediate 2 Ltd (LBHI2) holds all LBIEs ordinary and redeemable shares, except one ordinary share which is held by Lehman Brothers Ltd (LBL). LBIE, LBL and LBHI2 have all been in administration since January 2009. LBIE appears to be able to repay its external creditors in full. Under the provisions of the Insolvency Act 1986 as amended (the 1986 Act), an administrator of a company is permitted to make distributions to creditors. Since December 2009, LBIE has been in a distributing administration. The LBIE administrators declared and paid a first interim dividend to its unsecured creditors in November 2012. The LBIE administrators received proofs of debt from unsecured creditors including LBL and LBHI2 and the LBL administrators received proofs from LBHI2 and LBIE. A consolidated set of rules regarding corporate insolvency is set out in the 1986 Act and the Insolvency Rules 1986 as amended (the 1986 Rules) (together, the 1986 legislation). Schedule B1 to the 1986 Act contains provisions dealing with administration. Part 2 of the 1986 Rules is concerned with Administration Procedure and Chapter 10 of that Part, which includes rules 2.68 to 2.105, deals with Distributions to Creditors. The 1986 legislation does not constitute a complete insolvency code and certain established judge made rules may continue to operate. In a distributing administration, as in a liquidation, the duty of the office holder is to gather in and realise the assets of the company and to use them to pay off the companys liabilities. A generalised summary of the distribution priorities in relation to such payments (the waterfall) is set out in In re Nortel GmbH [2014] AC 209 para 39. In February 2013, the administrators of LBIE, LBL and LBHI2 issued proceedings seeking the determination of the court on issues arising in the administrations. In March 2014, Richards J delivered a judgment, and made ten consequential declarations. The Court of Appeal (Moore Bick, Lewison and Briggs LJJ) upheld most, but varied some, of them. The Supreme Court now determines the following issues: Issue 1 concerns the ranking in the waterfall which can be claimed by LBHI2 in its capacity as holder of three subordinated loans made to LBIE, and in particular whether LBHI2s claims rank ahead of statutory interest payable under rule 2.88(7) and/or non provable liabilities. Issue 2 arises from the fact that LBIEs creditors with debts denominated in a foreign currency will be paid under rule 2.86 at the rate of exchange prevailing at the date LBIE went in to administration, and sterling may have depreciated on the foreign exchange markets between that date and the date of payment. The foreign currency creditors claim that they are entitled to receive any contractual shortfall as a non provable claim. Issue 3 concerns whether a creditor of LBIE who had been entitled to, but had not been paid, statutory interest, can claim such interest in a subsequent liquidation. The remaining four issues arise because LBIE is an unlimited company and so its members can be called upon to make contributions under section 74 of the 1986 Act to meet its liabilities if LBIE is in liquidation. Issue 4 is whether such contributions can be sought in respect of liability for statutory interest and for non provable liabilities of LBIE. The other three issues arise because LBHI2 and LBL are creditors of LBIE as well as members of LBIE liable to contribute as such. Issue 5 is whether LBIE can prove in the administrations of LBHI2 and of LBL in respect of their contingent liabilities to make contributions in LBIEs prospective liquidation if they are called on to do so pursuant to section 150 of the 1986 Act. If LBIE cannot do this, issue 6 is whether LBIE can exercise a right of set off. If not, issue 7 is whether LBIE can invoke the so called contributory rule which applies in a liquidation, namely that a person cannot recover as a creditor until his liability as a contributory had been discharged. Lord Neuberger writes the lead judgment, with whom (i) Lord Kerr and Lord Reed agree, (ii) save on an obiter issue on Issue 2, Lord Sumption agrees, and (iii) save on Issue 2 on which he dissents, Lord Clarke agrees. Issue 1: LBHI2s contention, which turns on the interpretation of the Subordinated Loan Agreements, is that its claim as subordinated creditor ranks ahead of statutory interest and non provable liabilities because they are obligations not payable in the insolvency of LBIE or (in the case of statutory interest) it is not payable and owing by [LBIE] within the meaning of the Subordinated Loan Agreements. In agreement with the courts below, the Supreme Court rejects LBHI2s arguments. Statutory interest is plainly an obligation payable in LBIEs insolvency [48 49]. It is also payable and owing by [LBIE], even though LBIE could not be sued for it [51 56]. Secondly, the notion that a liquidator who meets a non provable liability makes a payment in the Insolvency is implied by the provisions of the 1986 Act and by the practical realities [58 61], and the same applies to an administrator [62]. Accordingly, statutory interest and non provable liabilities must be met before any balance can be used for payment of the subordinated loans [64]. In agreement with the judge and disagreeing with the Court of Appeal, LBHI2 cannot prove for the subordinated loans until the non provable liabilities are paid or clearly could be met [70]. Issue 2: Disagreeing with the Judge and the majority of the Court of Appeal, the Supreme Court concludes by a majority of 4 to 1 that rule 2.86, which provides that unsecured debts payable in foreign currencies are to be converted in to sterling at the official rate on the administration date, spells out the full extent of a foreign currency creditors rights [90], and so foreign currency creditors cannot claim as a non provable debt the difference between the sterling value of the debt at the administration date and that at the date the debt was paid [112]. This is consistent with the conclusion reached in reports produced prior to the 1986 legislation [88]. It is also supported by the fact that the contrary conclusion would lead to a one way option in favour of the foreign currency creditors [91] and that, in contrast to proofs for certain other debts, there is no provision in the 1986 Rules for their adjustment [93]. It is dangerous to rely on judicial dicta regarding a previous insolvency code [83]. Lord Clarke dissents on this issue [206 and 211 221]. On the wider issue whether the payment in full of a proved debt satisfies the underlying contractual debt, by a majority of 3 to 2 the Supreme Court inclines to the view that it is inconsistent with Chapter 10 of Part 2 of the 1986 Rules, and the natural meaning of rule 2.72(1), that a debt met in full nonetheless has a component which is capable of resurrection [104 107]. Lord Sumption is inclined to disagree on this issue [195 201] and Lord Clarke agrees with him. Issue 3: Rule 2.88(7) only applies to an existing administration and constitutes a direction to an administrator while in office. Section 189(2) and rule 4.93 exclude rule 2.88(7) interest being proved for or paid once a company previously in administration is put in to liquidation [117]. In agreement with the Judge and disagreeing with the Court of Appeal, the Supreme Court considers that it is impermissible to have recourse to an entirely new judge made rule to fill this gap [120 123]. Disagreeing with the Judge, the Supreme Court concludes that the contractual right to interest for the post administration period does not revive or survive in favour of a creditor who has proved for a debt and been paid on his proof in a distributing administration. Rules 2.88, 4.93 and section 189 provide a complete statutory code for recovery of interest on proved debts [124 5]. Issue 4: Liabilities in section 74 of the 1986 Act is not limited to those capable of being the subject matter of a proof and includes non provable liabilities [136]. However, rule 2.88(7) provides that statutory interest is payable only where there is a surplus after payment of the debts proved, and, in disagreement with the Judge and the Court of Appeal, the Supreme Court holds that section 74 cannot be invoked to create a surplus from which statutory interest can then be paid [139]. Issue 5: section 150 creates a statutory obligation on a member [153] and entitles the liquidator to make the call to fulfil his statutory duties. Contrary to the view of the courts below, the Supreme Court considers that the nature of that obligation is such that it is incapable of being the subject matter of a proof unless the company concerned is in liquidation [154]. Any money paid under section 74 forms a statutory fund which can only come into existence once that company is in liquidation [156]; if that company not in liquidation, there is no existing person to be identified as a potential creditor, merely a possible future liquidator [158]. Further, the alternative would lead to serious difficulties [160 163]. Issue 6: essentially for the same reasons, prospective section 150 liabilities cannot be set off by the LBIE administrators [171]. Issue 7: It is plainly inconsistent with the pari passu principle and with the statutory aim of enabling effective calls to be made in a liquidation to allow LBHI2 and LBL to be paid out on their proofs like any other unsecured creditor, given that they are probably insolvent [172]. The contributory rule which applies in liquidations can properly be, and should be, extended to a distributing administration, with procedural modifications to achieve consistency with the legislative framework [180 182].

The founder of Magmatic Limited (Magmatic), Robert Law, won a prize in 1998 for a design of a ride on suitcase for children. Mr Law subsequently updated the design and applied to register it at the Office for Harmonization in the Internal Market, who published it on 28 October 2003 as Community Registered Design No 43427 0001 (the CRD). The CRD consists of six images prepared by a 3D Computer Assisted Design (CAD). Since May 2004, Magmatic has manufactured and sold ride on suitcases for children under the trade mark Trunki whose shape is very similar to the design shown on the CRD. In February 2013, Magmatic issued proceedings seeking damages and an injunction against PMS International Limited (PMS), alleging that PMS were importing into, and selling in, the United Kingdom and Germany ride on suitcases for children under the name Kiddee Case which infringed the CRD. At first instance, the judge, Arnold J, found, amongst other matters, that the Kiddee Case infringed the CRD. The Court of Appeal allowed PMS appeal. Magmatic now appeal to the Supreme Court. The Supreme Court unanimously dismisses Magmatics appeal. Lord Neuberger gives the only judgment, with which the other Justices agree. Community Design Right is governed by Council Regulation (EC) No 6/2002 (the Principal Regulation), which provides that a design shall be protected to the extent that it is new and has individual character [7]. What matters is the overall impression created by it, and that potential customers will appreciate it on the basis of its distinctiveness [6, 10]. In considering an issue of this nature, an appellate court should not reverse a judges decision unless he has erred in principle [24]. The Court of Appeal decided that issue for itself and came to a different conclusion from the judge on the basis of three criticisms of the judges approach [16 22]. Therefore the essential question in this appeal is whether those criticisms were justified [26]. The first criticism was that the judge failed to give proper weight to the overall impression of the CRD as an animal with horns, which was significantly different from the impression made by the Kiddee Case, which were either an insect with antennae or an animal with ears [21]. The overall impression given by the CRD is indeed that of a horned animal; and the judge did not specifically refer to this when comparing the CRD with the Kiddee Case [37]. A trial judge cannot be expected in every case to refer to all the points which influenced his decision, but when a judge has given a full and careful judgment, conscientiously identifying a significant number of points which weigh with him, an appellate court can properly conclude that his failure to mention an important point means that he has overlooked it. This was the case here [39]. The second criticism was that the judge failed to take into account the effect of the lack of ornamentation to the surface of the CRD [21], i.e. that the absence of decoration reinforced the horned animal impression [40]. This has limited force; unless it simply consisted of items such as eyes and a mouth, any decoration could well detract from the animal impression and even such items could be said to distract attention from the horns [41]. The Court of Appeals second criticism was correct, although it is only a relatively minor point which mildly reinforces the first criticism [49]. The third criticism was that the judge ignored the colour contrast in the CRD between the body of the suitcase and its wheels [21]. He described the CRD as constituting a claim evidently for the shape of the suitcase and decorations on the Kiddee Case were therefore to be ignored [51]. The CRD consisted of CADs of an item whose main body appears as a uniform grey but which had black strips, a black strap and black wheels. The natural inference to be drawn is that the components shown in black are intended to be in a contrasting colour to that of the main body. Accordingly, the Court of Appeal was correct: the CRD claimed not merely a shape, but a shape in two contrasting colours [53] and the judge was wrong in holding that the CRD was simply a claim for shape [53]. Accordingly, the Court of Appeal were right to hold that the judge materially misdirected himself and could properly consider the question of infringement for themselves. As they approached the question of infringement on the correct basis in law, this Court should be very slow indeed to interfere with their conclusion that the Kiddee Case did not infringe the CRD [56]. The Court has sympathy for Magmatic and Mr Law, as the idea of the Trunki case was a clever one, but Design Right is intended to protect designs not ideas [57]. Magmatic contended that the second criticism raised the question whether the absence of ornamentation can as a matter of law be considered a feature of design and if so whether it was a feature of the CRD in this case [42]. Magmatic further argued, with the support of the Comptroller General of Patents Designs and Trademarks, that this question should be referred to the Court of Justice of the European Union as it is neither acte clair nor acte clair [42]. This Court rejects both arguments. The Court of Appeal was not raising a freestanding point that absence of decoration was a feature of the CRD [43]. In any event, it is not arguable that that an absence of ornamentation cannot be a feature of a CRD [44 48, 60]. As to the question of whether absence of ornamentation was a feature of the CRD in the presence case, the Court of Appeal did not resolve this issue and it is unnecessary to do so in the present appeal [50]. Accordingly, no reference to the CJEU needs to be made, and the appeal is dismissed [59 61].

From 2005 to 2009 Mr Mukhtar Ablyazov was the chairman and controlling shareholder of the respondent, a bank incorporated in Kazakhstan. He was removed from office when the bank was nationalised in 2009. He fled to England where he obtained asylum. The bank brought various claims against him in the High Court. The bank alleged that he had embezzled some US$6 billion of its funds. At the outset of the litigation, the bank obtained an order requiring Mr Ablyazov to identify and disclose the whereabouts of his assets and a worldwide freezing order preventing him from dealing with them. In 2010 the High Court appointed receivers over his assets. It later transpired that Mr Ablyazov had failed to disclose large numbers of undisclosed assets, which he had sought to place beyond the reach of the claimants through a network of undisclosed companies. In 2011 the bank consequently obtained an order committing Mr Ablyazov for contempt of court. He was sentenced to 22 months imprisonment. By the time the judgment had been handed down, however, Mr Ablyazov had fled the country. His whereabouts are unknown. Default judgments in the sum of US$4.6 billion have been obtained against him, but very little has been recovered. In 2015 the bank brought the present claim against Mr Ablyazov and his son in law, Mr Khrapunov, who lives in Switzerland. The bank alleged that Mr Khrapunov, being aware of the freezing and receivership orders, entered into a combination or understanding with Mr Ablyazov to help dissipate and conceal his assets. The judge found that it was sufficiently established for the purposes of this application that they entered into it in England. Mr Khrapunov is said to have been instrumental in the dealings of assets held by foreign companies and in concealing what became of those assets. His actions are said to constitute the tort of conspiracy to cause financial loss to the bank by unlawful means, namely serial breaches of the freezing and receivership orders in contempt of court. This appeal concerns only the position of Mr Khrapunov, who unsuccessfully applied to contest the jurisdiction of the High Court. The Court of Appeal dismissed his appeal. The Supreme Court unanimously dismisses the appeal. Lord Sumption and Lord Lloyd Jones give the lead judgment, with which Lord Mance, Lord Hodge and Lord Briggs agree. Mr Khrapunovs first argument was that contempt of court cannot constitute the required unlawful means for the tort of conspiracy to cause loss by unlawful means, because contempt is not a wrong which by itself entitles a claimant to sue the contemnor: it is not actionable. Therefore, he argued, there was no good, arguable case against him on which to found jurisdiction [5]. The tort of conspiracy can be divided into lawful means conspiracy and unlawful means conspiracy, although that terminology is inexact. A person has a right to advance his own interests by lawful means, even if the foreseeable consequence is damage to the interests of others. Where he seeks to do so by unlawful means, he has no such right. The same is true where the means are lawful but the predominant intention of the defendant is to injure the claimant, rather than to further some legitimate interest of his own. In either case, there is no just cause or excuse for the combination with others. Conspiracy being a tort of primary liability, rather than simply a form of joint liability, the question what constitutes unlawful means cannot depend on whether their use would give rise to a different cause of action independent of conspiracy. The correct test is whether there is a just cause or excuse for the defendants combining with each other to use unlawful means. That depends on (i) the nature of the unlawfulness; and (ii) its relationship with the resultant damage to the claimant [8 11]. Unlike various other legal duties, compliance with the criminal law is a universal obligation. The unlawful means relied on in this case are contempt of court, which is a criminal offence. For that purpose, the defendant must have intended to damage the bank. The damage to the bank need not have been the predominant purpose, but it must be more than incidental. The defendants predominant purpose in this case was to further Mr Ablyazovs financial interests as they conceived them to be. But the damage to the bank was necessarily intended. Their aim was to prevent the bank from enforcing its claims against Mr Ablyazov, and both defendants must have appreciated that the benefit to him was exactly concomitant with the detriment to the bank. The damage was not just incidental [15 16]. It was argued on behalf of Mr Khrapunov that the existence of a claim for conspiracy to commit contempt of court would be inconsistent with public policy because it would substitute a remedy as of right for one which depended on the discretion of the court. The Court is satisfied that there is no such public policy [18 23]. The matters alleged by the bank, if proved, would amount to the tort of conspiracy to injure by unlawful means [24]. Mr Khrapunovs second argument was that the English courts lacked jurisdiction by reason of the general rule, in article 2 of the Lugano Convention to which both the UK and Switzerland are parties, that a person should be sued in the Convention state in which he or she is domiciled. The sole currently relevant exception to that rule is article 5(3), which allows a claim in tort in the Convention state where the harmful event occurred or may occur. Article 5(3) is substantially identical to article 5(3) of the Brussels Regulation (Council Regulation (EC) No 44/2001). The Court of Justice of the European Union (CJEU) has interpreted the latter to cover both: (a) the place where the damage occurred and (b) the place of the event giving rise to it [26 28]. As an exception to the general rule, article 5(3) must be interpreted strictly. Although there is no basis for interpreting it by reference to national rules of non contractual liability, those national rules are relevant. They define the legally relevant conduct and whether an event is harmful. The CJEU has repeatedly focused on the relevant harmful event which sets the tort in motion. This gives effect to an important policy of the Brussels/Lugano scheme by promoting a connecting factor with the jurisdiction of a court which is particularly close to the cause of the damage. In Cartel Damage Claims (CDC) Hydrogen Peroxide SA v Akzo Nobel NV (Case C 352/13) [2015] QB 906 the CJEU identified the formation of a cartel, not its implementation, as the event giving rise to the damage [31 40]. The Court of Appeal correctly identified the place where the conspiratorial agreement was made as the place of the event which gives rise to and is at the origin of the damage. In entering into the agreement, Mr Khrapunov would have encouraged and procured the commission of unlawful acts by agreeing to help Mr Ablyazov to carry the scheme into effect. Thereafter, Mr Khrapunovs alleged dealing with the assets the subject of the court order would have been undertaken pursuant to and in implementation of that agreement. The making of the agreement should be regarded as the harmful event which set the tort in motion [41].

In May 2010 Mr Mark Irvine made requests under the Freedom of Information (Scotland) Act 2002 (FOISA) to the appellant, South Lanarkshire Council (the Council), for information about the number (but not the identity) of its employees in a particular post at particular points on the Councils pay scales. His purpose was to investigate whether the appellants pay gradings favoured work traditionally done by men. The Council refused his request on the ground that to comply with it would contravene the Data Protection Act 1998 (DPA). Information is exempt from disclosure under the FOISA if it constitutes personal data under the DPA and disclosure would contravene any of the data protection principles in that act. The DPA provides that personal data should not be processed unless at least one of the conditions set out in Schedule 2 is met. The relevant condition, condition 6, would be satisfied if disclosure were necessary for the purposes of legitimate interests pursued by Mr Irvine, except where it would be unwarranted by reason of prejudice to the rights and freedoms of the data subjects. Mr Irvine complained to the respondent, the Scottish Information Commissioner (the Commissioner), who investigated and then held that the Council should disclose the information Mr Irvine sought. The Council appealed against this ruling to the Inner House of the Court of Session, alleging in addition that the Commissioner acted in breach of natural justice by failing to disclose to the Council certain communications sought and received by him in the course of his investigation. The appeal was dismissed and the Council pursued a further appeal on both issues to the Supreme Court. The Supreme Court unanimously dismisses the appeal. It holds that the Commissioner was entitled to reach his conclusion that disclosure of the information should be given by the Council to Mr Irvine, and that there had been no breach of the rules of natural justice when the Commissioner did not copy the correspondence to the Council. Lady Hale gives the only judgment. The right to the disclosure of information under the FOISA did not trump the provisions of the DPA, which continued to protect the right to privacy with respect to the processing of personal data [6 7]. The conditions in Schedule 2 of the DPA applied to any kind of operation performed on personal The word necessary was used in several of the conditions and likely to have the same meaning throughout. Interpretation of this word had to be capable of applying equally well with each of the situations envisaged in the conditions, some of which involved compliance with legal obligations [8]. Condition 6 required three questions to be answered in relation to Mr Irvines request [18]: (i) Was Mr Irvine pursuing a legitimate interest or interests? (ii) Was the processing of the personal data necessary for the purposes of those interests? (iii) Was the processing unwarranted in this case by reason of prejudice to the rights and freedoms or legitimate interests of the employees? The European Court of Justice (ECJ) had confirmed that Council Directive 95/46/EC (to which the DPA gives effect in the United Kingdom), insofar as it governs the processing of personal data which is likely to infringe fundamental freedoms, in particular the right to privacy, should be interpreted in the light of fundamental rights. National legislation which was incompatible with the right to privacy secured by Article 8 of the European Convention on Human Rights would not satisfy the requirements of the Directive [20 22]. The concept of necessity had its own independent meaning, although the ECJ had not supplied a definition. The Council argued on the appeal that there was a strict test of necessity and that questions of proportionality only came into other aspects of the conditions [23]. The Supreme Court agreed that the word necessary had to be considered in relation to the processing to which it relates, but condition 6 had a counterbalance with the rights and interests of the data subjects built into it and it might not matter where the proportionality requirements of Article 8(2) were considered as long as the overall result was compliant with them [25]. In this case, where the identity of the employees would not be revealed, it was difficult to see how there would be any interference with their rights to privacy and it was enough to apply condition 6 in its own terms [26]. It was well established in community law that, in the context of justification, necessary meant reasonably rather than absolutely or strictly necessary. It formed part of the proportionality test and any measure which interfered with a right protected by community law must be the least restrictive for the achievement of a legitimate aim [27]. The Commissioner, in applying a proportionality approach to the meaning of necessary in condition 6, had adopted a test which was probably more favourable to the Council than was required and certainly no less favourable. It was quite clear that he was entitled to reach the conclusion that he did [28]. On the second aspect of the appeal, it was common ground that the Commissioner had a duty to act fairly, especially as the sole finder of facts. He was entitled to make his own inquiries and obliged to give notice to the public authority from which disclosure of information was being sought under the FOISA of any new material elicited by his inquiries which was adverse to its interests [29 31]. In this case the material contained in the correspondence generated by the Commissioners enquiries was already known to the Council and it was not a breach of the rules of natural justice for the Commissioner to refrain from copying it to the Council [32 33].

The Appellant was one of Kazakhstans four systemic banks. The Respondent, Mr Ablyazov, was its chairman and majority shareholder between 2005 and early 2009. In February, Mr Ablyazov fled to England following the Banks nationalisation. The Bank claimed that he had presided over the misappropriation of US$10 billion of the Banks monies for his own personal benefit, and commenced 11 sets of proceedings. It successfully obtained judgments against Mr Ablyazov in four cases, in an aggregate sum of $4.4 billion, and a Freezing Order on 12 November 2009. Mr Ablyazov had entered into four Loan Agreements in 2009 2010. He exercised his right to draw down fully under those Agreements, and directed various payments for legal and corporate services and in relation to a property. The Bank applied for declarations that (on the assumption that the Loan Agreements were valid) Mr Ablyazovs rights to draw down under them were assets for the purposes of the Freezing Order and drawings under them could only be made pursuant to the exceptions at paragraph 9 of the Order. The first instance judge dismissed the application, and the Court of Appeal dismissed the Banks appeal. The issues before the Supreme Court were (1) whether Mr Ablyazovs right to draw down under the Loan Agreements is an asset within the meaning of the Freezing Order, (2) whether the exercise of that right by directing the lender to pay the sum to a third party constitutes disposing of, dealing with or diminishing the value of the assets, and (3) whether the proceeds of the Loan Agreements were assets within the meaning of the extended definition in paragraph 5 of the Freezing Order, because the Respondent had the power directly or indirectly to dispose of, or deal with [the proceeds] as if they were his own. The Supreme Court unanimously allows the Banks appeal on issue 3, on the basis that the proceeds of the Loan Agreements were assets within the meaning of the extended definition in paragraph 5 of the Freezing Order. Lord Clarke gives the judgment. The only real question is what the Freezing Order in fact made means [16 17]. The Court of Appeal was wrong to have regard to the flexibility principle, which has no role in the exercise of the construction of the Freezing Order as an order of the court. The correct approach to construction is restrictive, not expansive [18 19], and involves consideration of the particular context of the order, including the development of the relevant clauses in freezing injunctions [21 26]. Paragraph 5 of the Order in this case is very similar to paragraph 6 of the Order in JSC BTA Bank v Solodchenko [2010] EWCA Civ 1436. Both differ from the pre 2002 form of Freezing Order, in that they include an extended description of assets in the last two sentences and the words whether the respondent is (or respondents are) interested in them legally, beneficially or otherwise [27]. The courts have approached the language of the forms of Order cautiously, but the scope of Freezing Orders has been gradually extended. In Federal Bank of the Middle East v Hadkinson [2000] 1 WLR 1695, the Court of Appeal recognised that it might in exceptional circumstances be possible to frame an Order so that it froze trust assets, and in Solodchenko the Court of Appeal concluded that this was the effect of the amendments to the first part of paragraph 6 of that Order. The standard form of wording does not prevent the Respondent from borrowing money and spending it [28 30]. In ordinary legal parlance, the choses in action representing the rights under the Loan Agreements would be regarded as assets [31 33]. Context is of particular importance. The Court of Appeal considered Hadkinson and Solodchenko, concluding that the enforcement principle is not absolute and that the right to draw down under the Loan Agreements undoubtedly belonged to the Respondent [35]. These are considerations arising from the wording added to the standard form of Freezing Order. So far as the standard form is concerned, the authorities do not support the proposition that the Respondents right to draw down under the Loan Agreements is an asset within the meaning of Freezing Orders as originally drafted. It is inappropriate to reverse those decisions. The right is not an asset within the meaning of the Freezing Order and the Respondent did not dispose of, deal with or diminish the value of the assets, if the Freezing Order is construed without reference to the extended definition in the second sentence of paragraph 5 [38]. The Banks appeal on issues 1 and 2 is dismissed. But the wording of the Order is different in the more recent forms, used in this case and in Solodchenko. The proceeds of the Loan Agreements are assets within the meaning of the extended definition in paragraph 5 of the Freezing Order in this case [39]. Mr Ablyazovs instruction to the lender to pay the lenders money to a third party was dealing with the lenders assets as if they were his own. It was wrong to dismiss the argument that the Respondent had a power to direct the lender what to do with the funds it was contractually obliged to make available to him. The Loan Agreements contain a binding legal obligation that the proceeds of the facility would be used at the Respondents sole discretion, and a power to direct the lender to transfer the proceeds to any third party [40 42]. The extended definition is not primarily designed to catch assets which the defendant claimed he held on trust. That was the effect of the additional words at the beginning of the clause [43 44]. The last two sentences of paragraph 5 are designed to catch assets over which the Respondent has control, not assets which he owns legally or beneficially. The Respondent had the power to, and did, deal with the assets as if they were his own under clause 1.12 of each agreement [45 50]. The Banks appeal on issue 3 is allowed.

In August 2007 B Atlantic (the Vessel), owned by the Appellant, was used by unknown third parties in an unsuccessful attempt to export cocaine from Venezuela by strapping a parcel of drugs to the vessel underwater. The Vessel was detained by Venezuelan authorities. After a period of more than six months, the Appellant treated the Vessel as a constructive total loss. The issue raised by the present case is whether the owners are entitled to recover the Vessels insured value from the Respondents, the Vessels war risk insurers. This turns on the terms of the insurance policy. The cover afforded was on the terms of the Institute War Strikes Clauses Hulls Time (the Institute Clauses). The key provisions were: Clause 1: PERILS Subject always to the exclusions hereinafter referred to, this insurance covers loss of or damage to the Vessel caused by 1.2 capture seizure arrest restraint or detainment, and consequences thereof or any attempt thereat 1.5 any terrorist or any person acting maliciously or from a political motive 1.6 confiscation or expropriation. Clause 3: DETAINMENT In the event the Vessel shall have been the subject of capture seizure arrest detainment confiscation or expropriation, and the Assured shall thereby have lost the free use and disposal of the Vessel for a continuous period of [6] months then for the purpose of ascertaining whether the Vessel is a constructive total loss the Assured shall be deemed to have been deprived of the possession of the Vessel without any likelihood of recovery. Clause 4.1.5: EXCLUSIONS This insurance excludesarrest restraint detainment confiscation or expropriationby reason of infringement of any customs or trading regulations On a trial of preliminary issues Hamblen J held that Clause 4.1.5 was not confined to Clause 1.2 and 1.6, but left open whether it applied to Clause 1.5. At trial, Flaux J held that the owners were entitled to recover, because Clause 4.1.5 did not apply to an infringement of customs regulations occurring due to malicious acts of third parties falling within Clause 1.5, such as the attempted smugglers act in attaching the drugs to the hull. The Court of Appeal disagreed, holding that the Appellants claim was excluded under Clause 4.1.5 even if it fell within Clause 1.5. The owners appealed on the basis of common ground that the attempted smugglers were acting maliciously within the meaning of Clause 1.5. During the course of the hearing the Supreme Court considered that it was necessary to re examine that common ground. The parties made further written submissions on this point [6]. The Supreme Court unanimously upholds the Court of Appeals decision and dismisses the appeal. First, the Vessels loss was not caused by any person acting maliciously within the meaning of Clause 1.5 of the Institute Clauses. Second, even assuming that there was loss caused by a person acting maliciously, it was still excluded by Clause 4.1.5. Lord Mance writes the judgment. Acting Maliciously The attempted smugglers were not acting maliciously within Clause 1.5 [30]. An element of spite, ill will or the like is required, although this is not limited to conduct directed towards the insured interest. An act directed with the relevant mental element towards causing the loss of or damage or injury to other property or towards a person could lead to consequential loss of or damage to an insured interest within Clause 1.5 [28]. The attempted smuggling cannot here be regarded as aimed at the detention of or any loss or damage to the Vessel or any property or person [29]. Clause 1.5 must be read in its immediate context and in the light of the recent marine insurance authorities which would have been in the minds of the drafters of the Institute Clauses [28]. With regard to context, what the drafters appear to have had in mind are persons whose actions are aimed at causing loss of or damage to the vessel or other property or persons as a by product of which the vessel is lost or damaged. Detection of the smuggled drugs and any consequent loss or damage to the Vessel were the exact opposite of the unknown smugglers aim [14]. The Institute Clauses were issued on 1 October 1983 [15]. They were drafted to bring fresh order and clarity to many of the concepts used in the market. Prior authority on the concept of persons acting maliciously is therefore relevant [16]. The Mandarin Star [1968] 2 Lloyds Law Rep 47 and The Salem [1982] 1 QB 946 establish that for a person to be acting maliciously an element of spite or ill will towards someone is required. The (earlier) Institute Clauses were held to be obviously intended to deal with damage effected in the course of some civil disturbance [17]. Whether the malice had to be directed to the cargo owner as opposed to the goods themselves was left unclear [17 and 20]. Authorities dealing with malice in a tortious context and Victorian criminal law statutes from 1861 do not provide helpful guidance to the meaning of any person acting maliciously in Clause 1.5 [25 28]. The Operation of Clause 4.1.5 Even if the attempted smugglers had been acting maliciously within Clause 1.5, the Appellants claim was still excluded under Clause 4.1.5 as arising, at least concurrently, from detainment by reason of infringement of customs regulations [55]. First, Clause 4.1.5 is applicable to circumstances falling within Clause 1.5. It would be surprising if an insured could improve its position by invoking one particular sub clause of Clause 1, such as Clause 1.5, as opposed to Clauses 1.2 or 1.6. Further, the owners are relying on Clause 3 to establish constructive total loss which is exactly the subject matter of Clause 4.1.5 [32]. Second, neither as a matter of causation nor as a matter of construction, is it possible to treat Clause 4.1.5 as inapplicable by drawing some distinction between the malicious act and the infringement of customs regulations as the proximate, real or effective cause of the loss [39]. The two are here effectively the same. Even if some meaningful distinction could be drawn between them, it does not follow that there is a binary choice between two competing proximate, real or effective causes of the insured loss. What is required is a construction of the particular wording, giving effect at each stage to the natural meaning of the words in their context [40]. The general aim in insurance law is to identify a single real, effective or proximate cause of any loss, but in some cases there may be two concurrent causes of loss, particularly where an exception takes certain perils out of the prima facie cover [43]. Where an insured loss arises from the combination of two causes, one insured, the other excluded, the exclusion prevents recovery [49]. Here two potential causes can be identified viz the malicious act and the subsequent seizure and detainment. It was the combination of the two that was fatal. As the seizure and detainment arose from the excluded peril of infringement of customs regulations, the Appellants claim fails [49].

In October 2010 Hassan Barakat, a Lebanese resident, wished to gamble at the London Playboy Club and applied at the club for a cheque cashing facility for up to 800,000. Playboy Clubs policy for gamblers like Mr Barakat was to require a credit reference from his bankers for twice the amount. To avoid disclosing the purpose of the credit facility, Playboy Clubs practice was to arrange for an associated company, Burlington Street Services Ltd (Burlington), to ask the customers bank for the reference. Mr Barakat gave as his bankers Banca Nazionale del Lavoro (BNL) in Reggio Emilia, Italy. Burlington sent a Status Entry Request on Burlingtons headed paper to BNL. BNL stated that Mr Barakat had an account with them and that he was trustworthy up to 1,600,000 in any one week. Playboy Club granted the cheque cashing facility and increased it to 1.25m. Mr Barakat drew two cheques totalling 1.25m, made net winnings of 427,400 which were paid out to him by Playboy Club, returned to Lebanon, and was not seen again at the club. Both cheques were returned, and the club suffered a total net loss of 802,940 (including gaming duty). It was common ground between the parties that BNL had no reasonable basis for their reference. BNL held no account for Mr Barakat until two days after the reference was sent and that account had a nil balance until its closure on 14 December 2010. In the High Court, the trial judge held that BNL owed a duty of care to Playboy Club in relation to its reference. The Court of Appeal disagreed holding that the only duty BNL owed was to Burlington, to whom the reference was addressed. The Supreme Court unanimously dismisses the appeal. Lord Sumption gives the lead judgment with which Lady Hale and Lords Reed and Briggs agree. Lord Mance gives a concurring judgment. The principle espoused in Hedley Byrne & Co Ltd v Heller & Partners Ltd, which permits recovery of pure economic loss for a negligent misstatement where a special relationship exists, is capable of further development. However, voluntary assumption of responsibility remains the foundation of this area of law [7]. The defendants knowledge of the transaction, in respect of which the statement is made, is potentially relevant for several reasons. It identifies by name or description the person or group of persons to whom the defendant can be said to assume responsibility [10]. The representor must not only know that the statement is likely to be communicated to and relied upon by someone, it must also be part of the statements known purpose that it should be communicated and relied upon by that person if the representor is to be taken to assume responsibility to them [11]. Playboy Club argued that the relationship between BNL and the Club was equivalent to contract due to Playboy Clubs status as Burlingtons undisclosed principal. The rule of English law that an undisclosed principal may declare himself and enter upon a contract is an anomaly that survives in modern law due to its antiquity rather than its coherence [12]. It does not follow that simply because a relationship is treated in law as a contractual relationship that it is legally the same as a contractual relationship or involves all the same legal incidents [13]. Whether a relationship is sufficiently proximate to create a duty of care is a question of fact from which the law draws certain conclusions. The liability of a contracting party to an undisclosed principal is a legal, as opposed to factual, construct. It creates contractual relations between parties who do not have a factual relationship with each other. Such a relationship is not necessarily proximate and lacks the element of mutual consent required to give rise to an assumption of responsibility [14]. The majority of the principles governing undisclosed principals are entirely inapposite to the law of tort. In particular, while the relationship between a contracting party and an undisclosed principal may be mutual in a contractual sense it lacks mutuality in tort [15]. BNL had no reason to suppose that Burlington was acting for someone else, and they knew nothing of the Playboy Club. It is plain that they did not voluntarily assume any responsibility to the Club [16]. Lord Mance writes a concurring judgment. There are passages in some authorities which suggest that there are two requirements for a duty of care to arise in respect of a representation: (a) the claimant must be a specific person or group to whom the responsibility may be said to have been undertaken, and (b) the representation must be made specifically in connection with a particular transaction or transactions of a particular kind made known to the representor [20]. Lord Mance does not consider that this claim should fail for want of communication of the purpose or kind of purpose for which an assessment of trustworthiness was required [22]. The claim fails in this case because BNLs representation was directed simply and solely to Burlington, who alone objectively requested the representation, and not to Playboy Club [24].

This appeal concerns a challenge by the Appellant to the validity of schemes and orders made by the Scottish Ministers under the Roads (Scotland) Act 1984 (the 1984 Act) to allow the construction of a road network bypassing Aberdeen to the west of the city. In March 2003, a partnership comprising local public and private bodies produced a regional transport strategy (the MTS), describing and costing numerous proposals, including the western peripheral route (the WPR), intended primarily to reduce congestion in Aberdeen. The Ministers agreed to undertake the implementation of the WPR. Following a campaign against part of the proposed route, the Ministers decided in December 2005 to revise the scheme so as to include a road connecting Stonehaven to the WPR (the Fastlink). It was intended that the Fastlink would reduce congestion on the A90 between Stonehaven and Aberdeen. The Ministers subsequently published Environmental Impact Assessments under s.20A of the 1984 Act, on the basis that the scheme fell within the scope of the Environmental Assessment Directive (the EIA Directive). The Appellant is the chairman of Road Sense, a local organisation opposing the WPR whose members reside along or close to the proposed route. Following objections from him and others, a public inquiry was held to consider environmental and technical issues associated with the WPR, but not whether to proceed with it at all. Following detailed modifications, the Scottish Parliament approved the relevant orders and schemes on 3rd March 2010. The Appellant challenged the validity of WPR in the Scottish courts, under paragraph 2 of schedule 2 to the 1984 Act, on a variety of grounds under EU and domestic law. The Inner House rejected those submissions. It also held that the Appellant was not in any event entitled to bring a challenge as he was not a person aggrieved, and that he had not shown his interests to have been substantially prejudiced so as to entitle him to a remedy, as required respectively by paragraphs 2 and 3 of Schedule 2 to the 1984 Act. Before the Supreme Court, the Appellant argued that the Fastlink had been adopted without the consultation required by the Strategic Environmental Assessment Directive (the SEA Directive), and that that the scope of the public inquiry should have included the question whether the Fastlink was required, under common law principles of procedural fairness. The Supreme Court unanimously dismisses the appeal. The trunk road network on the periphery of Aberdeen is urgently in need of improvement. As such, Mr Waltons determination to pursue his challenge has been the subject of vigorous criticism and suggestions that he has acted irresponsibly. However, his challenge raised a difficult question of law which it was proper for the Court to consider [148 149]. The Court notes that the SEA and EIA Directives require environmental assessments to be carried out in different but mutually complementary circumstances. The SEA Directive is concerned with the environmental effects of plans and programmes which set the framework for future development consent of projects. The EIA Directive is concerned with the environmental impact of specific projects [11 14, 24]. With that distinction in mind, and assuming for the purposes of analysis that the MTS qualified as a plan or programme under the SEA Directive [62, 100, 150], the Court holds that the Fastlink was not a modification to that plan or programme, and therefore did not trigger the consultation requirements of the SEA Directive. The WPR was a specific project undertaken following the MTS, and the Fastlink was a modification of that project, rendering it subject to the EIA Directives requirements instead [64 69, 99, 102, 150]. With regard to the fairness of the public inquiry, it was not argued that the Ministers were obliged by statute to assess the economic, policy or strategic justifications for the Fastlink. Nor was it argued that the Appellant had a legitimate expectation that the scope of the inquiry would include that assessment. In those circumstances, there was nothing to suggest that its remit was unfair to the Appellant [72 73, 101 102]. Those conclusions determined the Appellants challenge. However, due to observations made by the Inner House [1, 74 76], the Supreme Court also clarifies elements of the law on standing to raise such a challenge, and on the availability of a remedy where that challenge is well founded in law . The Court notes that, when considering whether an individual is a person aggrieved, as he must be in order to raise a challenge under paragraph 2 of schedule 2 to the 1984 Act, the legislative and factual context will be important [85]. Given the extent of the Appellants participation in the consultative procedures under the 1984 Act, he was indubitably a person aggrieved under that Act [86 89]. It would be inconsistent with the purpose of environmental law to require that a persons private interests must necessarily be affected for him to be a such a person, as environmental law proceeds on the basis that the environment is of legitimate concern to everyone. If an individual or organisation has a genuine interest in and sufficient knowledge of an environmental issue to qualify them to raise issues in the public interest, they should be regarded as a person aggrieved [152 155]. The Court also concludes that the Appellant would have had standing, as a party with sufficient interest in the WPR, to raise common law proceedings for judicial review. However, such proceedings would have failed on their merits [90 97]. In AXA General Insurance Ltd and others v HM Advocate and others [2011] UKSC 46, the Court had clarified that the function of such proceedings was not only to redress individual grievances [91]. While distinguishing between a busybody and someone with a legitimate concern is context specific, it is not always necessary for someone raising an action to demonstrate a personal interest where the challenged act affects the public generally [92 94]. The rule of law would not be maintained if no one could challenge an unlawful act because everyone was equally affected by it [95]. The Court considers that the nature of a persons interest will have a bearing on the courts exercise of discretion as to the remedy, if any, which should be granted where a challenge such as the Appellants is successful [96, 104]. The Appellant would not have been entitled to a remedy in any event. The exercise of discretion to grant a remedy depends on the factual and statutory context, and there would be such prejudice to countervailing public and private interests that it would be extraordinary if it could not be taken into account in deciding whether the orders creating the Fastlink were to be quashed [132]. Nothing argued before the court suggested that this position is not in line with European legal principles on environmental assessment [135 141]. brackets are to paragraphs in the judgment

Mr Martin Fowler is a qualified diver who is resident in the Republic of South Africa. During the 2011/12 and 2012/13 tax years he undertook diving engagements in the waters of the UKs continental shelf. HMRC says Mr Fowler is liable to pay UK income tax for this period. Whether he is liable depends on the application of a Double Taxation Treaty between the UK and South Africa. Article 7 of the Treaty provides that self employed persons are taxed only where they are resident (i.e. South Africa), whereas article 14 provides that employees may be taxed where they work (i.e. the UK). For the purposes of this appeal, the parties have assumed that Mr Fowler was an employee. Mr Fowler claims he is nevertheless not liable to pay tax in the UK. His case centres on a deeming provision in section 15 of the UKs Income Tax (Trading and Other Income) Act 2005 (ITTOIA). This provides that an employed seabed diver is treated as self employed for the purposes of UK income tax. A previous provision of this kind was originally enacted in the 1970s in order to allow employed seabed divers, who commonly paid for their own expenses, to access the more generous regime tax deductible expenses which was available to the self employed. Mr Fowler argues that, since he is treated as self employed for income tax purposes, he must be treated as self employed under the Treaty and is therefore only taxable in South Africa. HMRC, on the other hand, says ITTOIA does not affect whether someone is an employee, but only regulates the manner in which an employee is taxed. The issue has divided the courts below. The First tier Tribunal (Tax Chamber) was persuaded by Mr Fowlers arguments but the Upper Tribunal (Tax and Chancery Chamber) allowed HMRCs appeal. The Court of Appeal was divided on the question, with the majority agreeing with Mr Fowler. HMRC now appeals to the Supreme Court. The Supreme Court unanimously allows HMRCs appeal, holding that (if the parties factual assumptions are correct) Mr Fowler should be treated as an employee and is subject to UK income tax. Lord Briggs gives the only judgment. Expressions in the Treaty such as salaries, wages and other remuneration, employment and enterprise should be given their ordinary meaning unless domestic legislation alters the meaning which they would otherwise have [18; 30]. Section 15 of ITTOIA provides that a person who would otherwise be taxed as an employee is instead treated as self employed for the purposes of domestic income tax. Deeming provisions of this kind create a statutory fiction which should be followed as far as required for the purposes for which the fiction was created. The courts will recognise the consequences of that fiction being real, but not where this will produce unjust, absurd or anomalous results [27]. Although section 15 uses the expressions income, employment and trade, it does not alter the meaning of those terms but takes their ordinary meaning as the starting point for a statutory fiction [31 32]. Properly understood, it taxes the income of an employed diver in a particular manner which includes the fiction that the diver is carrying on a trade. That fiction is not created for the purpose of rendering a qualifying diver immune from tax in the UK, or for adjudicating between the UK and South Africa as potential recipients of tax, but to adjust the basis of a continuing UK income tax liability [33]. Since the Treaty is not concerned with the manner in which taxes are levied, it would be contrary to the purposes of the Treaty to redefine its scope by reference to ITTOIA. It would also be contrary to the purpose of ITTOIA and would produce an anomalous result [33 34].

The issues raised in this appeal are: (1) the correct approach to the relevance of lies told by an asylum seeker in the assessment of real risk of persecution on return to his or her country of origin; and (2) how far it is legitimate for an appeal court to interfere with the assessment of facts made by a specialist tribunal on the grounds of error of law. MA is a citizen of Somalia. He is a member of the Isaaq clan. He entered the UK illegally on 24 May 1995. He claimed asylum which was refused but he was granted exceptional leave to remain. In 1998 he was convicted of rape and indecency with a child and was sentenced to eight years imprisonment. On 21 May 2002, the Secretary of State for the Home Department served him with notice of intention to make a deportation order. Following a series of failed appeals and fresh submissions, the Secretary of State made a deportation order on 5 April 2004 and removal directions were set. MAs further submissions were accepted by the Secretary of State as a fresh claim to asylum. The Asylum and Immigration Tribunal (AIT) on 19 April 2007 accepted this claim but reconsideration was ordered on 26 February 2008, directed to the issue whether MA as a member of the Isaaq clan would be able to arrange protection against a real risk of physical violence if returned to Mogadishu. After hearing MA give evidence, the AIT concluded that MA had not told the truth about his links and circumstances in Mogadishu, and could not say that he had shown he would be at risk there contrary to Article 3 of the European Convention on Human Rights. The Court of Appeal allowed MAs appeal on the grounds that the AIT seemed to be throwing up their hands in despair and saying that since [MA] has concealed the truth, they cannot make any relevant findings, and that had the AIT made an assessment, they must have concluded that there was a real risk that he would not obtain the relevant protection, having regard to the lengthy period he had been in the UK, including 12 years in prison. The Supreme Court allows the Secretary of States appeal. The AIT did not err in their assessment of MAs lies and there was no error of law which warranted interference by the Court of Appeal. The Court recognises the difficulties facing the AIT in distinguishing truth from lies. A particular problem arises where, as in MAs case, the AIT has disbelieved the majority of the claimants evidence, but there is objective evidence indicating that the majority of individuals with the characteristics of, or alleged by, the claimant would be at risk if returned to the home state: [21]. The Court of Appeal were faced with this problem in GM (Eritrea) [2008] EWCA Civ 833. The Court endorses the approach in GM (Eritrea), the substance of which was not challenged in this appeal. Where the claimants account is rejected as incredible, he or she will only succeed where there is undisputed objective evidence which goes a long way to making good the shortcomings in the claimants own evidence. This, in essence, is what Laws LJ meant in para 54 of his judgment GM (Eritrea): [30]. The weight a lie has in each case is fact sensitive. In some cases, the AIT may conclude that the lie is of no great significance. In others, where, for example, the appellant tells lies on a central issue in the case, the AIT may conclude that it is of great significance. The AIT in this case was rightly alive to the danger of falling into the trap of dismissing the case merely because the appellant has told lies. As recognised by the Lucas direction in the criminal context, people lie for many reasons: [32] [33]. In MAs case, the central issue was whether MA had connections with powerful actors in Mogadishu. The AIT found that he had not told the truth about his links in Mogadishu. Accordingly, in MAs case, the AIT concluded that his lie was of great significance: [33]. The AITs determination records the conflicts in the evidence given by MA about his connections with Mogadishu. The AIT then directed itself on the basis of GM (Eritrea) as to the significance of MAs lies. This direction was accepted by the Court of Appeal to be impeccable. However, the Court of Appeal found that having so directed itself, the AIT then proceeded to misapply it: [34] [41]. The Supreme Court finds that the AIT did not misapply the direction. The AIT did not dismiss the appeal because MAs account was incredible. It is possible to interpret the AITs judgment consistently with the correct self direction: [42], [46] [48]. The Supreme Court also finds that the AIT had not overlooked the fact that MA had spent the last 12 years in prison and administrative detention in the UK. There is no explicit reference to his imprisonment, however, it is clear from the AITs judgment that they were well aware of it: [49]. The AITs conclusion that MA did not satisfy them that he did not have the necessary protective links in Mogadishu was one which was open to them to make: [50]. The Court also makes some general observations about the proper role of the Court of Appeal in relation to appeals from specialist tribunals on grounds of error of law. The appellate court should not characterise as an error of law what is, in reality, no more than a disagreement with the AITs assessment of the facts. Furthermore, where a relevant point is not expressly mentioned in the judgment of the AIT, the court should be slow to infer that it has not been considered and taken into account: [43] [45]. Whilst expressing no view on the issue, the Court also comments on the question of standard of proof, in particular the correct test to apply to past and present facts: [12] [20]. The Court indicates the desirability for the point to be decided authoritatively in another case: [20].

This appeal raises a question of contractual interpretation that is of significance because the condition in question forms part of the Loan Market Association (LMA) standard terms for par trade transactions. It concerns payment by a borrower to a lender of a lump sum at the time when a loan is repaid, sometimes known as a payment premium. The appellant, Tael One Partners Limited (Tael), was one of a number of lenders under an agreement concluded in 2009 by which US $100m was advanced to the borrower. From 30 November 2009, Taels contribution to the loan was US $32m (known as its participation). During the currency of the loan, it assigned its rights in respect of US $11m of its participation to the respondent, Morgan Stanley, under a contract incorporating the LMA terms. Morgan Stanley in turn sold its participation in the loan agreement to a third party. The loan was subsequently repaid by the borrower, together with the payment premium. Tael claims that, under the terms of the transfer to Morgan Stanley, it is entitled to be paid the part of the payment premium which relates to the amount transferred, to the extent that (as Tael argues) it pertains to the period prior to the date of the transfer. The purchase price letter did not provide expressly for any payment to be made by Morgan Stanley in respect of the payment premium. Condition 11 of the LMA terms deals with interest and fees. Conditions 11.2, 11.3, 11.5 and 11.6 deal with the payment of interest or fees by the buyer to the seller, and with each of the four bases on which the parties can agree that the transfer should be settled. In the present case, the agreed basis was paid on settlement date, addressed in condition 11.3. Tael relied on Condition 11.9(a) of the LMA terms. Condition 11.9, Allocation of interest and fees states: Unless these Conditions otherwise provide (a) Any interest or fees (other than PIK Interest) which are payable under the Credit Agreement in respect of the Purchased Assets and which are expressed to accrue by reference to the lapse of time shall, to the extent they accrue in respect of the period before (and not including) the Settlement Date, be for the account of the Seller and, to the extent they accrue in respect of the period after (and including) the Settlement Date, be for the account of the Buyer (b) All other fees shall, to the extent attributable to the Purchased Assets and payable after the Trade Date, be for the account of the Buyer. Tael applied for summary judgment against Morgan Stanley, who responded by also applying for summary judgment. Popplewell J granted Taels application and dismissed Morgan Stanleys. An appeal against that decision was allowed by the Court of Appeal. Tael appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Reed gives a judgment with which Lord Neuberger, Lord Kerr, Lord Toulson and Lord Hodge agree. The starting point is the words the parties used in condition 11.9(a). There is room for argument as to whether the payment premium would be interest or fees or whether it might fall within the definition of PIK interest. It is clear, however, that it is not expressed to accrue by reference to the lapse of time. It is true that a period of time is one of the elements that enter into the calculation of the amount of the premium, but condition 11.9(a) does not say, calculated by reference to the lapse of time and that is not its natural meaning. [41] The word accrue is generally used to describe the coming into being of a right or an obligation. The amount to which there is an entitlement may not be payable until a future date, but an entitlement may nevertheless have accrued. Situations can readily be envisaged in which interest or fees might accrue, in that sense, by reference to the lapse of time. This is not however such a situation. An entitlement to a payment premium under the loan agreement accrues on a defined event. [42] The payment premium is expressed as an amount equal to the difference between the total of several other amounts, on the one hand, and an amount equal to interest calculated at a given rate, on the other hand, so it might be said that part of the premium relates to the period before the settlement date. That does not however mean that the premium can be regarded, retrospectively, as having notionally accrued over that period. The method of calculation of the premium should not be confused with the accrual of the right to it. [43] The textual conclusion is reinforced by the commercial context. The LMA terms are intended for use in a market in which loans are traded: a loan may be traded many times, between many parties, over a number of years. One would not readily infer that a contract for the sale of a loan in a market of that nature was intended to create continuing rights and obligations between the parties to that contract. Further, the LMA terms do not make provision for any mechanism enabling the holder of the putative right to a payment premium, following the sale of his interest in the loan, to know when his right has vested or in what amount. Unless he happened to have retained some participation in the loan, as in the present case, he would not normally know when he had become entitled to payment, or how much he was entitled to be paid. Therefore, it would be more natural to expect the potential value of the right to receive the premium to be reflected in the consideration for which the loan was transferred. [44] Though that conclusion is sufficient to dispose of the appeal it leaves open two related questions. First, does this construction of condition 11.9(a) render it redundant? It does not: condition 11.9(a) can be seen to have a purpose if read together with the provision made as to the payment of interest and fees in conditions 11.2, 11.3 and 11.9(b). [45] Second, does condition 11.9(a) provide a right to payment additional to that conferred by the other provisions of condition 11? It does not. The language used elsewhere in condition 11.9 suggests that it is not intended to confer an additional right to payment. Rather it allocates interest and fees as being for the account of one party or the other, and other conditions then impose an obligation to pay in accordance with that account. [45, 50]

Bilta (UK) Ltd was compulsorily wound up in November 2009 pursuant to a petition presented by HMRC. Biltas liquidators then brought proceedings against its two former directors (the directors) and against Jetivia SA, (a Swiss company) together with Jetivias chief executive (the appellants). The claim alleges that the appellants and the directors were parties to an unlawful means conspiracy to injure Bilta by a fraudulent scheme, which involved the directors breaching their fiduciary duties as directors, and the appellants dishonestly assisting them in doing so. The conspiracy alleged is that between April and July 2009, the directors caused Bilta to enter into a series of transactions relating to European Emissions Trading Scheme Allowances (commonly known as carbon credits) with various parties, including Jetivia, and that those transactions constituted what is known as a carousel fraud, a species of VAT fraud. The liquidators now claim (i) through Bilta, (a) damages in tort from each of the four defendants, (b) compensation based on constructive trust from the appellants, and (ii) directly from each of the four defendants, a contribution under section 213 of the Insolvency Act 1986. The appellants applied to strike out Biltas claim on the basis (i) that the appellants were bound to defeat the claims against them on the basis of a defence of illegality and, (ii) in relation to the section 213 claim, that it could not be invoked against the appellants as section 213 does not have extra territorial effect. In essence, the appellants argument on illegality was that Biltas claims against its directors are barred by reason of the criminal nature of Biltas conduct while under their control. Allegedly, Biltas function was to serve as a vehicle for defrauding HMRC, and the appellants argued that the doctrine of illegality bars Bilta from suing the directors as a means of recovering the companys loss for the benefit of the companys creditors. This raises the issues of (i) the purpose of the illegality defence and its application in relation to Biltas claims and (ii) the circumstances in which the knowledge of directors and other persons is attributed to a legal person such as a registered company. The Supreme Court unanimously dismisses the appeal both in relation to the illegality defence and in relation to section 213. On the first ground, the Court unanimously holds that the illegality defence cannot bar Biltas claims against the appellants on the basis that the conduct of the directors cannot be attributed to the company in the context of a claim against the directors for a breach of their duties. On the second ground, the Supreme Court holds that section 213 of the Insolvency Act 1986 has extra territorial effect, and therefore can be invoked against the appellants. Attribution A company has separate legal personality, but it can act only through its directors and agents. In most circumstances the acts and state of mind of a companys directors and agents can be attributed to the company by applying the rules of the law of agency; however, whether an act or state of mind is attributed to a company depends upon the context in which the question arises [41, 92, 181]. When the question of attribution arises in the context of an agency relationship, the nature of the principals or other partys claim is highly material [87 91, 202]. In an action like the present for breach of duty against directors for using the company to commit a fraud on a third party in a way alleged to have caused the company loss, it is inappropriate to attribute to the company the fraud to which the alleged breach of duty relates, even if it is being practised by a person whose acts and state of mind would be attributable to it in other contexts [7 9, 71, 181]. As between the company and a defrauded third party, the company should be treated as a perpetrator of the fraud but in the different context of a claim between the company and the directors, the defaulting directors should not be able to rely on their own breach of duty to defeat the operation of the provisions of the Companies Act in cases where those provisions were intended to protect the company [42 43, 208]. A claim by a company against its directors could be said to be the paradigm case where attribution is inappropriate [89]. For these reasons all of the members of the Supreme Court would dismiss the appeal on the illegality defence. The purpose and scope of the illegality defence Lord Neuberger (Lord Clarke and Lord Carnwath agreeing) and Lord Mance all consider that this is an inappropriate case in which to decide, on a general basis, the proper approach to the defence of illegality, though they (together with Lord Toulson and Lord Hodge) emphasise the need for a review of the law of illegality by the Supreme Court in an appropriate case [15 17, 34, 174]. Lord Toulson and Lord Hodge express the view that the defence of illegality is a rule of public policy which depends on the nature of the particular claim brought by the claimant and the relationship between the parties [122]. In this case, the fiduciary duties of a director of a company which is insolvent requires the director to have proper regard for the interests of its creditors [123 126]. Such protection would be empty if it could not be enforced [127]. The doctrine of illegality has been developed on the ground of public policy and in the circumstances of this case, to allow the directors to escape liability for breach of their fiduciary duty on the ground that they were in control of the company would undermine the duty in the very circumstances in which it is required [129 130]. Lord Sumption, by contrast, regards the defence of illegality as a rule of law, independent of any judicial value judgment about the balance of the equities in each case [62]. Lord Sumption expressly disagrees with the statutory policy argument put forward by Lord Toulson and Lord Hodge. Does Section 213 of the Insolvency Act 1986 have extra territorial effect? The Supreme Court unanimously holds that section 213 does have extra territorial effect. Section 213 provides a remedy against any person who has knowingly become a party to the carrying on of that companys business with a fraudulent purpose. The provision is directed against (a) parties to a fraud and (b) persons involved in the carrying on of the now insolvent companys business. The context of section 213 is the winding up of a company registered in Great Britain; however, the effect of such a winding up order is worldwide. It would seriously handicap the efficient winding up of a British company in an increasingly globalised economy if the jurisdiction of the court responsible for the winding up of an insolvent company did not extend to people and corporate bodies resident overseas who had been involved in the carrying on of the companys business [108, 213]. Moreover Section 238, a provision in similar terms to section 213, has previously been held by the Court of Appeal to apply without territorial limitations [110, 214].

These appeals concern the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points based system of immigration control. Tier 4 deals with the grant of leave to enter or remain in the United Kingdom to migrants to the UK from outside the European Economic Area for the purpose of study. The essential requirement of the Tier 4 scheme was that the migrant should have been sponsored by an educational institution holding a sponsors licence. This requirement was laid down in Part 6A of the Immigration Rules, which dealt with the requirements to be satisfied by migrants applying for leave to enter or remain for the purpose of study. The criteria for licensing sponsors and the duties of sponsors once licensed were not prescribed in the Immigration Rules, but only in the Tier 4 Sponsor Guidance issued by the Secretary of State. Section 3(2) of the Immigration Act 1971 (the Act) provides that the Secretary of State shall lay before Parliament rules as to the practice to be followed in regulating the entry and stay in the UK of persons required under the Act to have leave to enter. Part 6A of the Immigration Rules was laid before Parliament under section 3(2) of the Act, but the Sponsor Guidance was not. New College London was a licensed Tier 4 sponsor until December 2009 when its licence was suspended by the Secretary of State on the ground that it was in breach of its duties as sponsor as set out in the Sponsor Guidance. Its licence was subsequently revoked. West London Vocational Training College applied for Highly Trusted Sponsor status in accordance with the Sponsor Guidance and was refused in August 2012. The effect of that refusal under the terms of the then current Sponsor Guidance was that it could not be a licensed Tier 4 sponsor. Both applicants sought to challenge these decisions by way of judicial review. Both failed in the High Court and in the Court of Appeal. Their case was that, so far as the Sponsor Guidance contained mandatory requirements for sponsors, it had to be laid before Parliament, and that in making decisions by reference to it without having done this, the Secretary of State acted unlawfully. The Supreme Court unanimously dismisses the appeals. Lord Sumption (with whom Lords Hope, Clarke and Reed agree) gives the lead judgment. Lord Carnwath adds a concurring judgment agreeing with the result but differing as to some of the reasoning. The criteria for sponsor licensing contained in the Sponsor Guidance were properly to be described as rules, but they were not required to be laid before Parliament under section 3(2) of the Act because that requirement related only to rules regulating the grant of leave to enter or remain in the UK have to be satisfied by the migrant. The Guidance is directed only to the licensing of sponsoring institutions [23, 26]. If the provisions of the Act do not apply, it does not follow that there is no power to have such a system at all [23, 27]. The statutory power of the Secretary of State to administer the system of immigration control must necessarily extend to a range of ancillary and incidental administrative powers not expressly spelt out in the Act, including the vetting of sponsors [28]. The Act does not prescribe the method of immigration control to be adopted. It cannot have been Parliaments intention that the Secretary of State should be limited to those methods of immigration control which required no other administrative measures apart from the grant or refusal of leave to enter or remain in the UK. Since the Secretary of State is entitled to prescribe and lay before Parliament rules for grant of leave to enter or remain in the UK which depend upon the migrant having a suitable sponsor, then she must also be entitled to take administrative measure for identifying sponsors who are and remain suitable, even if these measures do not themselves fall within section 3(2) of the Act [29]. This right is not unlimited: the Secretary of State cannot adopt measures which are inconsistent with the Act or Immigration Rules or adopt measures which are coercive, infringe legal rights or contravene the general constraints on administrative action imposed by public law. However, the Tier 4 sponsor system was not coercive but voluntary. The rules contained in the Sponsor Guidance were, in reality, conditions of participation and sponsors seeking the advantages of licences could not complaint if they were required to adhere to them. [CA29] Lord Carnwath agreed with the result, but held that the sponsor licensing scheme was an adjunct, not of the immigrant control system in general, but of the specific function of providing entry under section 1(4) of the Act. This provides for the admission of persons not having the right of abode for the purpose of study subject to such restrictions as may be provided by the rules. This leads back to section 3(2) of the Act which prescribes the procedure for making the rules [37]. Lord Carnwath differed as to the practical effect of the decision in respect to New College. The decision did not confer a status which they did not have but revoked an existing licensing, and an order setting aside that decision would have left the existing licence in place. No party had sought to challenge the validity of that original licence [44 6].

This appeal concerns a challenge to the sale by an insolvent Scottish company, Grampian MacLennans Distribution Services Ltd (Grampian), of its principal asset and place of business (the Property) at a value lower than could have been achieved on the open market. The parties dispute the proper interpretation of adequate consideration in section 242(4)(b) of the Insolvency Act 1986 (the 1986 Act) and whether the court has any discretion as to the remedy it may give under that section. In March 2013, chartered surveyors valued the Property at 1.2m on the open market and at 800,000 on a restricted marketing period of 180 days. The following year, Grampian fell into financial difficulty and was sold to Mr Quinn. At this time, Grampian owed more than 500,000 to each of National Westminster Bank plc (NatWest), which held a standard security over the Property, and HM Revenue and Customs (HMRC). Shortly after Mr Quinns takeover, Grampians cash flow collapsed and its monthly loan repayments to NatWest fell into arrears. Mr Quinn sold off Grampians trucks and entered into discussions to sell the Property with a businessman he had known for over 30 years, Mr Gaffney. Mr Gaffney negotiated on behalf of his family company, Carnbroe Estates Ltd (Carnbroe), to acquire the Property at a reduced price, citing the risk of repossession by NatWest and the fact that the buildings needed repairs and refurbishment. Mr Quinn and Mr Gaffney eventually agreed that Carnbroe would buy the Property for 550,000 in a quick, off market sale. Grampian transferred the Property to Carnbroe on 24 July 2014. However, instead of paying the agreed consideration to Grampian, Carnbroe repaid the NatWest loan directly to obtain a discharge of the standard security. Carnbroe then obtained a loan from the Bank of Scotland plc, which was secured against the Property. The sale of the Property and repayment of NatWests loan left Grampians other principal creditor, HMRC, unpaid. HMRC wrote to Grampian requiring payment of tax that was due. On Grampians failure to pay, HMRC presented a petition for winding up Grampian. The Respondents (Mr MacDonald and Ms Coyne) were appointed as joint liquidators of Grampian and commenced proceedings to challenge the sale. At first instance, the Lord Ordinary held that the sale of the Property was made for adequate consideration. However, on appeal, the Inner House (the Lord President, Lord Drummond Young and Lord Malcolm) reduced (annulled) the transaction and ordered Carnbroe to transfer the property to the Respondents. Carnbroe appealed to the Supreme Court. The Supreme Court unanimously allows the appeal only to the extent of remitting the case to the First Division of the Inner House to consider what is the appropriate remedy under section 242(4) of the 1986 Act. Lord Hodge gives the sole judgment with which the other Justices agree. The Supreme Court holds that the meaning of adequate consideration is to be determined according to an objective test, having regard to the commercial justification of the transaction in all the circumstances and assuming that the parties would be acting in good faith and at arms length [30 32]. As to the circumstances that would be relevant to this assessment, the Court considers that, unless the insolvent partys financial embarrassment is known in the relevant market, the hypothetical purchaser will not be assumed to have knowledge of it [32]. Accordingly, it is not relevant that Mr Quinn advised Mr Gaffney of Grampians financial difficulties. However, the fact of Grampians insolvency is, itself, a relevant circumstance, in that an insolvent vendor would be expected to manage its assets in such a way as to protect the interests of its creditors [33]. The objective purpose of the sale is also a relevant circumstance. Whilst an off market sale poses the obvious risk of obtaining an inadequate price, the Court recognises that a quick sale may sometimes be in the interest of the creditors, such as when the insolvent party faces liquidity issues and the sale would enable it to trade out of insolvency [34]. Where there is no prospect that the sale would enable the insolvent company to remain in business, the adequacy of the consideration will depend on whether there is prejudice to the insolvent companys creditors [37]. This involves comparing the outcomes which would have been available in the circumstances of the insolvency. In cases where a full marketing exercise would not have been possible, or where the asset was being sold as part of an informal winding up, the consideration achieved in the sale should not be measured against the open market price but against the price, net of expenses, that would have been obtained by a liquidator of the company, or else by the holder of any security over the asset, assuming their compliance with applicable legal duties [37 39]. In the present case, the sale of the Property was part of an informal winding up of Grampian. As such, the Court considers that there could be no justification for an off market sale at a price so far below market value on the ground of urgency [40]. Carnbroe has not established that there was adequate consideration as it has not led any evidence to support the view that a sale by NatWest (as the holder of a standard security over the Property), or else by the liquidators, would have been likely to achieve a comparable or lower net price than that which Grampian accepted [42]. As such, the Inner House was entitled to interfere with the Lord Ordinarys assessment of the adequacy of the consideration. As to the appropriate remedy, the liquidators argue that section 242(4) of the 1986 Act requires the courts to annul any transaction with an insolvent company for less than adequate consideration, save where such annulment is impossible. However, the Supreme Court considers that such a rule could produce harsh and disproportionate effects, since section 242(b) would capture sales to good faith, arms length purchasers for substantial (if not adequate) consideration [45]. If such a transaction were reversed, the good faith purchaser would be forced to compete as an unsecured creditor to recover the consideration it had paid, with the insolvent vendors general creditors receiving a windfall [51]. In a departure from previous decisions of the Inner House, the Supreme Court concludes that the statutory words of section 242(4) are broad enough to allow the courts, in appropriate cases, to devise a remedy to protect the good faith purchaser [53, 63, 65]. In the absence of agreed facts as to the impact of reversing the present transaction, the Court remits the case to the Inner House to determine whether it is appropriate to qualify the remedy it has given to take account of all or part of the consideration paid by Carnbroe for the purchase [69].

This appeal concerns whether the First tier Tribunal (Ft T) was entitled to make an order debarring the Commissioners for HM Revenue and Customs (HMRC) from defending an appeal concerning liability for VAT brought by three companies in the BPP Group of companies (BPP). Between 1999 and 2006, BPP Holdings Ltd supplied education and books to students. Following a corporate rearrangement in 2006, one company, BPP Learning Media Ltd, supplied books and another, BPP University College of Professional Studies Ltd, supplied education. BPP considered that this involved separate supplies by separate companies, one of education (which is standard rated for VAT purposes) and the other of books (which is zero rated). Accordingly, BPP did not account for VAT on the supplies of books. In November 2012, HMRC issued two VAT assessments, prepared on the basis that BPP should have accounted for VAT at the standard rate on the supplies of books from 2006. HMRC also issued a decision to that effect in December 2012. In May 2013, BPP appealed against the two assessments and the decision to the Tax Chamber of the Ft T. HMRC served its statement of case on 21st October 2013, 14 days late, and subsequently provided disclosure, which was also late. On 11th November 2013, BPP requested that HMRC provide further information of their case, and subsequently applied to the Ft T for an order that HMRC supply the information within 14 days of making the order, failing which BPPs substantive appeals should be allowed. On 9th January 2014, Judge Hellier made an order in terms that: if the respondents fail to provide replies to each of the questions identified in the appellants request for Further Information by 31st January 2014, the respondents may be barred from taking further part in the proceedings. On 31st January 2014, HMRC served a response to BPPs request. On 14th March, BPP issued an application for an order barring HMRC from taking further part in the proceedings (a debarring order) as the response did not reply to each of the questions identified in [BPPs] request for further information. HMRC have since withdrawn the two assessments and conceded those appeals, but BPPs third appeal against HMRCs decision has proceeded. Meanwhile, HMRC supplied a defective disclosure statement and list of documents some eight days late on 8th May, and did not apply for an extension of time until four weeks later. BPP maintained its claim for a debarring order in the surviving appeal. On 23rd June 2014, Judge Mosedale granted BPPs application and made a debarring order. On 25 September 2014, Judge Herrington refused HMRCs application to lift the debarring order but gave HMRC permission to appeal against Judge Mosedales decision. Judge Bishopp in the Tax and Chancery Chamber of the Upper Tribunal (UT) allowed HMRCs appeal on 3rd October 2014. The Court of Appeal (Moore Bick V P, Richards and Ryder LJJ) allowed BPPs appeal and restored Judge Mosedales debarring order for reasons given by Ryder LJ. The Supreme Court unanimously dismisses the appeal, but does not approve all the reasoning of the Court of Appeal. It would be appropriate for an appellate court to interfere with Judge Mosedales full and carefully considered judgment if it could be shown that irrelevant material was taken in to account, relevant material was ignored (unless the appellate court was satisfied that this made no difference), or the decision was one which no reasonable tribunal court have reached [21]. The order made by Judge Hellier reflects the terms of rule 8(3)(a) of Rule 8 of the Tribunal Procedure (First tier Tribunal) (Tax Chamber) Rules 2009 (SI 2009/273), which provides that: the Tribunal may strike out the whole or a part of the proceedings if (a) the appellant has failed to comply with a direction which stated that a failure by the appellant to comply with the direction could lead to the striking out of the proceedings or part of them [10 11]. Judge Mosedale had correctly approached the issue on the basis that the order reflected rule 8(3), rather than rule 8(1) as HMRC had contended [22]. Case law concerning time limits and sanctions relevant to the Civil Procedure Rules does not apply directly to the tribunals: the jurisdiction of many of the tribunals extends to the whole of the United Kingdom rather than being limited to England and Wales, and they have different rules from the courts and sometimes require a different approach to a particular procedural issue. However, in general, a similar approach should be followed [23 26]. Judge Mosedale had made clear that her consideration of the Civil Procedure Rules and related authorities was limited to whether the guidance contained in them was relevant by analogy to the application of the overriding objective in the Tax Tribunal rules. She had distinguished the guidance before applying a nuanced version of it [26 27]. Further, in considering the reasoning in Mitchell v Newsgroup Limited [2014] 1 WLR 795, Judge Mosedale had correctly considered that whilst the case was not strictly relevant, it contained some useful guidance when considering the overriding objective of dealing with cases fairly and justly [28], [15]. There is no basis for concluding that she had misunderstood the guidance given in Mitchell, nor that any developments in the subsequent case of Denton v TH White Ltd [2014] 1 WLR 3926 justified upsetting her decision [28]. In reaching her conclusion, Judge Mosedale had carefully considered all the relevant factors, including the disadvantage to HMRC and the arguably disproportionate benefit to BPP [29], [12 20]. The fact that HMRC was discharging a public duty in this case did not justify the application of a special rule or approach [30]. It was not disproportionate for BPP to have sought a debarring order rather than proceeding to a hearing [31]. The argument that the result of the debarring order would result in an unjustified windfall for BPP by improving its prospects of success in the substantive appeal could be made by any party facing a debarring order, and would, if accepted, save in exceptional circumstances, undermine the utility of the sanction of a debarring order [32]. The decision to make a debarring order against HMRC was tough and some Ft T judges may not have made it. However, HMRC cannot cross the high hurdle of demonstrating that the decision was unjustifiable, given the combination of the nature and extent of HMRCs failure to reply to BPPs request, the length of the delay in rectifying the failure and the length of the consequential delay to the proceedings, the absence of any remedy to compensate BPP for the delay and the absence of any explanation or excuse for the failure, coupled with the existence of other failures by HMRC to comply with directions [33 34].

This appeal arises out of applications by the Financial Services Authority for orders to wind up the appellants in the public interest under s.367(1)(c) of the Financial Services and Markets Act 2000 (FSMA), on the ground that each of them is carrying on or has carried on a regulated activity in contravention of the general prohibition. The general prohibition is that at s.19 of FSMA, which provides that no person may carry on a regulated activity unless he is either an authorised or exempt person. Regulated activities include a wide range of general insurance business, including effecting or carrying out any of the 18 classes of contracts of general insurance listed in Schedule 1, Part I to the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001. Class 16 is the class most relevant to the present appeal (Miscellaneous Financial Loss). This includes contracts insuring against risk of loss to the insured attributable to their incurring unforeseen expense, as well as any other kind of risk (not covered by other provisions). The classes substantially replicate the classes in the Annex to the First Council Non Life Insurance Directive 73/239/EEC as amended by Council Directive 84/641/EEC (the First Directive). The appellants sold and performed extended warranty contracts under which, in consideration of a periodic payment, they contracted to repair or replace satellite television dishes, satellite boxes and associated equipment. It was agreed that the contracts were contracts of insurance and that the appellants were not authorised under FSMA to carry on any kind of insurance business. Nonetheless, the appellants case is that the contracts were not of a kind which required their business to be authorised under FSMA because the classes of regulated activities did not extend to contracts which only provided benefits in kind, i.e. repair services and replacement goods. Warren J [2011] Bus LR 981 rejected this argument and ordered the appellants to be wound up, and the Court of Appeal dismissed their appeal. The Supreme Court unanimously dismisses the appeal. Lord Sumption gives the judgment of the Court. The appellants case depends on the proposition that in specifying certain categories of direct non life insurance business which member states must regulate in accordance with EC law, the First Directive precluded member states from regulating further or wider categories under their national law. However, the Court concludes that the First Directive is concerned only to prescribe what kinds of business national law must regulate and not what other kinds of business it may regulate. Even if Classes 1 to 17 in the First Directive are confined to insurance providing pecuniary benefit, there is nothing to prevent the UK from legislating to regulate insurance of those descriptions irrespective of whether they provide benefits in cash or kind or both [4]. The First Directive was never intended to impose a comprehensive scheme of authorisation. Nor can the 18 classes of business listed in the Annex to the First Directive have been intended to limit the freedom of member states to regulate in other categories of business [12]. The partial character of the scheme of authorisation in the First Directive is recognised by the recitals. These show that it was appreciated that significant differences between national schemes of authorisation would persist, and that these would continue to operate as partial barriers to the exercise of the right of establishment. The object of the First Directive as a whole is to impose certain uniform principles of regulation on insurance businesses in the standard classes, but not on any falling outside those classes. This is why Article 1 to the First Directive is concerned with the conduct of businesses in the classes of insurances defined in the Annex to this Directive [13]. Member states deal with each others authorisations by reference to the standard classes in the First Directive. As far as they are concerned, any difference between the content of those classes and that of the corresponding categories of business in national law is irrelevant [14]. If the First Directive could be read so as to preclude national regulation of insurance not within the First Directive, it would allow it to be carried on without any regulatory protection for consumers [15]. The Court agrees with the decision of the courts below that, on the facts, the appellants businesses fell within the risks identified in Class 16 [16, 19]. A contract which brings about the result an insured would otherwise have to pay to achieve (i.e. having functioning equipment) was a contract that protects him from financial loss irrespective of whether the insurer or the insured is obliged to pay in the first instance [18]. The only argument against this could be that the common law position (that insurance contracts are payments of sums of money or some corresponding benefit) is displaced by the requirement to construe domestic legislation so as to conform to EU law. However, there is no prohibition in the First Directive against regulating any insurance business falling outside the 18 classes in the Annex. Nor does the Directive throw any light on the meaning of the language of Class 16 (Miscellaneous Financial Loss) which was derived, not from the First Directive, but from the statutory definition of business covered by the previous, wholly domestic, scheme of statutory regulation [19 21].

These proceedings relate to applications made by two foreign nationals, Ms Agyarko and Ms Ikuga, residing unlawfully in the UK, for leave to remain in the UK as partners of British citizens with whom they have formed relationships during the period of their unlawful residence. The Secretary of States decision in each case was that the applicant did not qualify for leave to remain under Immigration Rules (the Rules). Paragraph EX.1(b) of Appendix FM of the Rules required applicants to have a genuine subsisting relationship with a partner who is in the UK and is a British citizen, and for there to be insurmountable obstacles to family life with that partner continuing outside the UK. The Secretary of State found that no evidence had been provided of insurmountable obstacles in either case, and that in the case of Ms Ikuga she had not provided evidence of a shared address in order to show she that had a partner within the meaning of the Rules. The Immigration Directorate Instructions (the Instructions) state that where an applicant does not meet the requirement of the Rules, leave can be granted outside the Rules where exceptional circumstances apply, in order to ensure compatibility with the applicants rights under article 8 of the European Convention on Human Rights. The Secretary of State found that there were no exceptional circumstances in the case of either applicant to warrant consideration of a grant of leave outside the Rules. Both Ms Agyarko and Ms Ikuga sought permission to apply for judicial review of the Secretary of States decisions. In each case permission was refused by the Upper Tribunal, and the Court of Appeal upheld that refusal. The Supreme Court unanimously dismisses the appeals. Lord Reed gives the judgment, with which the rest of the Court agrees. The Secretary of States decisions on the facts were lawful. The ultimate question in article 8 cases is whether a fair balance has been struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions do not depart from that position, and are compatible with article 8. It is within the margin of appreciation for the Secretary of State to adopt policies which set out the weight to be attached to the competing considerations in striking a fair balance, including that family life established while the applicants stay in the UK is known to be unlawful or precarious should be given less weight, when balanced against the factors weighing in favour of removal, than family life formed by a person lawfully present in the UK [46 53]. Although the requirement of insurmountable obstacles to a continuing relationship is a stringent test to be met, rather than one relevant factor to be taken in account, this does not make it incompatible with article 8. The phrase insurmountable obstacles was not defined by the Rules when the present cases were considered, but it is reasonable to infer that it was intended to have the same meaning as in the jurisprudence of the European Court of Human Rights. It imposed a stringent test and was to be interpreted in a sensible and practical way rather than as referring solely to obstacles which make it literally impossible for the family to live together in the applicants country of origin. This is consistent with the guidance on assessing insurmountable obstacles contained in the Instructions, and the definition of that phrase introduced subsequently in the Rules, effective from 28 July 2014 [42 48]. The exceptional circumstances question is also one that the Secretary of State may legitimately ask. Appendix FM is said to reflect how the balance will be struck under article 8 between the right to respect for private and family life, and the legitimate aims listed in article 8(2), so that if an applicant fails to meet the requirements of the Rules it should only be in genuinely exceptional circumstances that refusing them leave and removing them from the UK would breach article 8. The Instructions state that exceptional does not mean unusual or unique, but means circumstances in which refusal would result in unjustifiably harsh consequences for the individual such that refusal of the application would not be proportionate. This is an application of a test of proportionality, consistent with the references to exceptional circumstances in European case law and cannot be regarded as incompatible with article 8 [54 60]. On the facts of each case, there was no basis to challenge the conclusions of the Upper Tribunal judge, that no evidence was placed before the Secretary of State from which the conclusion could be reached that there were insurmountable obstacles to each applicants relationship continuing in their countries of origin. Although in the case of Ms Ikuga the case was considered on an erroneous basis of fact that she was not in a genuine relationship, the insurmountable obstacles test was bound to fail in any event. Further, neither applicant had put forward anything which might constitute exceptional circumstances as defined in the Instructions. There was also an argument, advanced for the first time on appeal, that refusal of leave to remain served no good purpose because the applicants were otherwise certain to be granted leave to enter if the application was made from outside the UK. There was nothing to suggest that this would be the case for either appellant. [69 74]. The effect of refusal of leave in the applicants cases was not a breach of EU law. The Secretary of States decisions in these cases did not compel an EU citizen to reside outside the EU. These cases fell outside the situations of dependency to which the Zambrano principle of EU law applies [61 68].

The Rugby Football Union (RFU) is the governing body for Rugby Union in England. It also owns the Twickenham stadium and alone is responsible for issuing tickets for all international and other matches played at the stadium. It is the RFUs deliberate policy to allocate tickets so as to develop the sport of rugby and enhance its popularity. Most tickets are distributed via affiliated rugby clubs, referee societies, schools and other bodies. The distribution thereafter is subject to different rules depending on the nature of the body in question. Member clubs are permitted to sell some or all of their ticket allocation (up to a combined maximum of 4,837 tickets per match across all member clubs) to official licensed operators for use in corporate hospitality packages. The RFUs terms and conditions stipulate that any resale of a ticket or any advertisement of a ticket for sale at above face value will constitute a breach of contract rendering the ticket null and void. This condition is printed on the tickets and applicants are warned of it on ticket application forms. A further term stipulates that the tickets are property of the RFU at all times. Viagogo (now in liquidation) operated a website which provided the opportunity for visitors to the site to buy tickets online for a number of sporting and other events. Sellers would register their tickets with Viagogo and a price would be suggested based on current market data. Viagogo received a percentage of the sale. The RFU monitors ticket re sale websites in an attempt to discover whether and by whom tickets were being sold above face value. This effort was frustrated, however, in many instances by the anonymity offered by websites including Viagogo. In the run up to the international rugby matches in autumn 2010 and the six nations tournament, the RFU discovered that Viagogo had been used to advertise thousands of tickets for the matches at Twickenham. Tickets with a face value of 20 to 55 were being advertised for sale at up to 1300. After a request for information about the identity of those selling the tickets was refused, the RFU issued proceedings against Viagogo seeking information which it required in order to take action to protect its policy in relation to tickets. The High Court granted the RFU a Norwich Pharmacal order requiring Viagogo to disclose the identities of those involved in the sales. The order was made on the grounds that the RFU had a good arguable case that those selling and purchasing the tickets had been guilty of breach of contract and that it was appropriate to grant the order for them to obtain redress. Before the Court of Appeal, Viagogo introduced a new ground of appeal to the effect that granting the order represented a disproportionate interference with the rights of the potential wrongdoers under article 8 of the Charter of Fundamental Rights of the European Union. Article 8 guarantees the protection of personal data. The Court of Appeal upheld the decision of the High Court and decided that the RFU had no readily alternative means of pursuing the wrongdoers. On the new ground the Court of Appeal held that interference with the personal data rights of the individuals was proportionate in light of the RFUs legitimate objective in obtaining redress for arguable wrongs. The issue before the Supreme Court was whether the grant of the order involved a breach of article 8 of the Charter. The Supreme Court unanimously dismisses the appeal. Lord Kerr gives the judgment of the court. Lord Kerr considered the principles involved when making a Norwich Pharmacal order [14 18]. The need for an order for disclosure will only be found to exist if it is necessary and proportionate in all the circumstances [16]. The essential purpose of an order was to do justice in the case. This involved a careful weighing of all the relevant factors including the strength of the cause of action, whether those who have committed the alleged wrong knew or would have been likely to know that what they were doing was unlawful and the privacy rights of those whose identities were to be revealed [16 17]. Many of the factors involved in deciding whether to make a Norwich Pharmacal order are relevant to an assessment of whether disclosure is proportionate in the context of article 8 of the Charter [18]. Article 8 of the Charter was applicable as the order of the High Court involved disclosure of private data and thus was in the material scope of European Law [32]. Lord Kerr held that the appropriate test of proportionality under article 8 of the Charter involved weighing the benefit of the information being sought by the RFU against the impact that disclosure was likely to have on the individual concerned [33 36]. The appellant was wrong to suggest, however, that the assessment had to be carried out solely by reference to the particular benefit that obtaining information in relation to an individual might bring [36 37]. It was artificial and unrealistic to suggest that the RFUs aim of discouraging others in the future from flouting its rules should not be considered [37]. The facts of each case must be considered individually but there was nothing in the European cases cited or otherwise which supported the notion that the wider context for which the RFU wished to have the information should be left out of account.[40]. While there should be an intense focus on the rights claimed by the individuals concerned, this was not a case where disclosure would result in oppressive or unfair treatment. The only information sought was the names and addresses of individuals who had bought and sold tickets in clear breach of the RFUs ticket policy [43 45]. The particular circumstances affecting a person whose data were sought may in some limited cases displace the interests of the applicant for disclosure even where there was no feasible alternative way of getting the information. This was not such a case, however. [46].

The primary question in this appeal is when a person should be considered to be a de facto director of a company so that he can be held responsible for the payment of unlawful dividends as if he had been formally appointed as a director. When a company is wound up, section 212 of the Insolvency Act 1986, as amended, allows a creditor to request a court to compel an officer of the company to pay sums in respect of misuse of a power or breach of fiduciary duty. It was accepted that the definition of officer includes a director, whether he is formally appointed or not. Mr and Mrs Holland ran a business administering the business and tax affairs of contractors, especially those working in the IT sector, who did not want to go to the trouble of setting up and running their own companies. In February 1999 a complicated corporate structure was established to run the business. Under the new structure, 42 trading companies were created, referred to in these proceedings as the composite companies. Two further companies called Paycheck (Directors Services) Ltd and Paycheck (Secretarial Services) Ltd were created to act respectively as the sole director and secretary of each composite company. Mr and Mrs Holland were the directors of Paycheck Directors and Paycheck Services and owned each company via another company. The business model involved the composite companies contracting out the services of the contractors to their clients. The contractors became both employees and (non voting) shareholders of the composite companies. The aim of the structure was to seek to ensure that the annual taxable profits of each composite company did not exceed 300,000, in order to get the benefit of the small companies rate of corporation tax. From the income the composite companies received from the contractors clients, they paid a salary to each employee/shareholder and also declared dividends to each shareholder/employee (after making provision for the payment of corporation tax at the small companies rate). Dividends were paid regularly on the basis of timesheets submitted by shareholders/ employees for the work they performed as contractors. Paycheck Services used a software programme which calculated the dividends due and generated a document purporting to be a minute of a directors meeting of the relevant composite company. The programme generated onto the minute a copy of Mr Hollands signature authorising the dividend, beneath which appeared the words for and on behalf of Paycheck (Director Services) Ltd. Paycheck Services received a fee for its administrative services. No allegation was made that this structure was a sham and there was never any pleading of dishonesty against Mr or Mrs Holland. However, HMRC did challenge the structure. The structure failed because Mr Holland was the settlor of the one voting share in each composite company, with the result that the composite companies were treated as associated for tax purposes thus exceeding the 300,000 threshold. The resultant increased tax liability meant that the composite companies were insolvent, with HMRC being the only creditor. HMRC alleged that Mr and Mrs Holland were de facto directors of the insolvent companies and responsible under section 212 for causing the payment of dividends to the companies shareholders (the contractors) when the companies had insufficient distributable reserves. HMRC sought orders requiring Mr and Mrs Holland to pay amounts in excess of 13m to compensate the insolvent companies. The High Court dismissed the claims against Mrs Holland and that decision was not appealed. However, the High Court held that Mr Holland was a de facto director of each composite company and so in principle answerable to HMRCs claims. The Court of Appeal unanimously allowed Mr Hollands appeal and held that he was not a de facto director of the composite companies. The Supreme Court (by a majority of 3 to 2) dismisses the appeal. Lords Hope, Collins and Saville gave the majority judgments. Lords Walker and Clarke gave dissenting judgments. Lord Hope considered that the question of whether Mr Holland was acting as a de facto director of the composite companies must be approached on the basis that Paycheck Directors (the sole corporate director of each of the composite companies) and Mr Holland were in law separate persons, each with their own separate legal personality: [25]. The mere fact of acting as a director of a corporate director will not be enough for an individual to become a de facto director of the subject company: [29]. One must look at what a person actually did to see whether he assumed the responsibilities of the office of director: [39]. Everything Mr Holland did was under the umbrella of being the director of a sole corporate director: [40]. Until Parliament provides otherwise, if acts are entirely within the ambit of the duties and responsibilities of a director of the corporate director, it is to that capacity that acts are attributed: [42]. Lord Collins agreed with Lord Hope. Lord Collins held that whether a person is a de facto director is not simply a question of fact: the question was whether all of his acts can be attributed in law solely to the activities of the corporate director: [95]. It did not follow from the fact that Mr Holland took all the relevant decisions that he was a de facto director of the composite companies; if that were so, the guiding mind of every sole corporate director would find themselves the de facto director of another company: [96]. The basis of liability for a de facto director is an assumption of responsibility and being part of the governing structure. Parliament has already intervened in the Companies Act 2006 to ensure that there is a natural person to whom responsibility is attributed. The further extension of the concept of de facto director contended for by HMRC is a matter for the legislature and not for the Supreme Court: [96] Lord Saville agreed with Lord Hope and Lord Collins. Lord Walker considered that if a person takes all the important decisions affecting a company and sees that they are carried out, then he is acting as a director of that company. Lord Walker considered that to attribute acts on the basis of capacity in a corporate structure was the most arid formalism: [115]. Lord Clarke agreed with Lord Walker and held that capacity should be irrelevant to the question of whether an individual is a de facto director: [132]. Lord Clarke thought it artificial and wrong to hold that Mr Holland was doing no more than merely discharging his duties as a de jure director of Paycheck Directors: [142].

On or about 1 April 2010 the appellant and her husband (Mr and Mrs X) entered into a contract with the respondent tour operator (Kuoni) under which Kuoni agreed to provide a package holiday in Sri Lanka. In the early hours of 17 July 2010, the appellant was making her way through the grounds of the hotel to the reception. She came upon a hotel employee, N, who was employed by the hotel as an electrician and (on the facts found by the judge) known to her as such. N was on duty and wearing the uniform of a member of the maintenance staff. N offered to show her a shortcut to reception, an offer which she accepted. N lured her into the engineering room where he raped and assaulted her. In these proceedings Mrs X claims damages against Kuoni by reason of the rape and the assault. The claim is brought for breach of contract and/or under the Package Travel, Package Holidays and Package Tours Regulations 1992 (the 1992 Regulations) which implement in the United Kingdom Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (the Directive). In the High Court, HHJ McKenna concluded that the contractual undertaking that holiday arrangements would be of a reasonable standard did not include a member of the maintenance team conducting a guest to reception. He further held that Kuoni would in any event have been able to rely on the statutory defence under regulation 15(2)(c)(ii) because the assault was an event which could not have been foreseen or forestalled (by inference by the hotel) even with all due care. The Court of Appeal (Sir Terence Etherton MR, Longmore and Asplin LJJ) dismissed the appeal by a majority (Longmore LJ dissenting). In a joint judgment, the majority held that the holiday arrangements did not include N conducting Mrs X to reception. The majority further held that Kuoni was not liable under either the express terms of clause 5.10(b) or regulation 15 since N was not a supplier within the meaning of those provisions. On appeal to the Supreme Court there were two main issues: (1) Did the rape and assault of Mrs X constitute improper performance of the obligations of Kuoni under the contract? (2) If so, is any liability of Kuoni in respect of Ns conduct excluded by clause 5.10(b) of the contract and/or regulation 15(2)(c) of the 1992 Regulations? The Supreme Court unanimously decides to refer two questions to the Court of Justice of the European Union. The terms of the reference are set out by Lord Lloyd Jones. For the purposes of this reference, the Court of Justice of the European Union is asked to assume that guidance by a member of the hotels staff of Mrs X to the reception was a service within the holiday arrangements which Kuoni had contracted to provide and that the rape and assault constituted improper performance of the contract [22]. In order to determine this appeal, specifically in relation to the second issue identified above, the Supreme Court refers the following questions to the Court of Justice of the European Union [23]: (1) Where there has been a failure to perform or an improper performance of the obligations arising under the contract of an organizer or retailer with a consumer to provide a package holiday to which the Directive applies, and that failure to perform or improper performance is the result of the actions of an employee of a hotel company which is a provider of services to which that contract relates: (a) is there scope for the application of the defence set out in the second part of the third alinea to article 5(2); and, if so, (b) by which criteria is the national court to assess whether that defence applies? (2) Where an organizer or retailer enters into a contract with a consumer to provide a package holiday to which the Directive applies, and where a hotel company provides services to which that contract relates, is an employee of that hotel company himself to be considered a supplier of services for the purposes of the defence under article 5(2), third alinea of the Directive?

This case concerns the scope of indirect discrimination on the ground of age. It was heard alongside the case of Seldon v Clarkson Wright and Jakes [2012] UKSC 16 which concerned the scope for justification of direct discrimination on the ground of age. Mr Homer began working for the Police National Legal Database (PNLD) as a legal advisor in 1995 at the age of 51. When he was appointed the role did not require a law degree or equivalent if the post holder had exceptional experience or skills in criminal law combined with a lesser qualification in law. Mr Homer fell within this latter category. PNLD began to experience problems in attracting suitable people for the role of legal advisor. In 2005 the organisation introduced a new grading structure to improve career progression and offer more competitive salaries. The new structure provided for three promotion thresholds above the starting grade, the third and final of which requiring a law degree. In 2006 Mr Homer was graded under the new system as reaching the first and second thresholds but not the third. Because of his previous skills and experience he was, under the old grading structure, effectively at the top grade. In order to reach the third and highest threshold under the new structure Mr Homer would have been required to study for a law degree part time alongside his work. This would take four years to complete. At this time Mr Homer was 62 years old and, being due to retire at 65, would have been unable to reach or benefit from being at the third threshold before leaving the employment. His various internal appeals and grievances were dismissed and, in April 2007, he issued proceedings under the Employment Equality (Age) Regulations 2006, SI 2006/1031 (the Age Regulations) which came into force in October 2006. Regulation 7 of the Age Regulations (which have since been repealed but substantially re enacted under the Equality Act 2010) makes it unlawful for an employer to discriminate against employees such as Mr Homer in respect of, amongst other things, opportunities for promotion or receiving of other benefits. Regulation 3 provides that indirect discrimination occurs when a person (A) applies to another person (B) a provision, criterion or practice which he applies to persons not of the same age group as B, but which puts persons of the same age group as B at a particular disadvantage when compared with other persons, and which puts B at that disadvantage and A cannot show the . provision, criterion or practice to be a proportionate means of achieving a legitimate aim. In contrast to the Seldon case, it was accepted that regulation 3 had properly transposed article 2(2)(b) of Council Directive 2000/78/EC on equal treatment in employment and occupation into UK law in cases of indirect age discrimination. In January 2008 the Employment Tribunal found that the appropriate age group was employees aged between 60 and 65 as these persons would have been unable to obtain any real benefit from obtaining a law degree before retiring. It went on to hold that Mr Homer had been indirectly discriminated against on the ground of age and that this was not objectively justifiable on the facts. The Employment Appeal Tribunal held that there had been no indirect discrimination, but that if there had been then it would not be objectively justified. The Court of Appeal dismissed Mr Homers appeal against the first finding, and dismissed the Respondents cross appeal against the second finding. Both findings were then appealed to the Supreme Court. The Supreme Court unanimously allows Mr Homers appeal on the first issue, finding that he was indirectly discriminated against by the Respondent. The Court remits the case to the Employment Tribunal to reconsider the issue of justification. Lady Hale gives the lead judgment with which all other members of the Court agree. Lord Hope and Lord Mance add some comments of their own. The Employment Appeal Tribunal and the Court of Appeal had been persuaded by the argument that Mr Homer was put at a disadvantage, not by his age but by his impending retirement [12]. It was accepted that his retirement was what prevented him from gaining any real benefit from acquiring a law degree. What put B at a particular disadvantage was not his age as such but the fact that he was due to leave employment within four years, his position being comparable with any other employees nearing the end of their employment for whatever reason. The Supreme Court disagrees with that analysis. Its flaw is to ignore the fact that persons in the position of Mr Homer were disadvantaged because of a reason (retirement) that directly related to their age. Persons similarly disadvantaged for reasons not related to their age would not fall within the scope of the Age Regulations and were not the intended recipients of its protection [13]. The form of words used under the Age Regulations was intended to make it more straightforward to establish claims of indirect discrimination with claimants simply having to establish that they in particular, and persons of their age group in general, were, in fact, disadvantaged when compared with other persons [14]. In any event, there are material differences between leaving work because of impending retirement and other reasons for doing so [15]. The law on indirect discrimination is an attempt to level the playing field by subjecting to scrutiny requirements which look neutral on their face but in reality work to the comparative disadvantage of people with a particular protected characteristic. [17]. As to justification, the issue is to be remitted to the Employment Tribunal for consideration in the light of the Supreme Courts findings. The range of aims capable of justifying indirect discrimination is greater that those available in the context of direct discrimination (see Seldon v Clarkson Wright and Jakes [2012] UKSC 16) [19]. In particular, a real business need on the part of the employer alone may be sufficient. In addition to pursuing a legitimate aim, the treatment must be proportionate which means it is both an appropriate means of achieving the legitimate aim and (reasonably) necessary in order to do so. [22]. It is the criterion itself that must be justified as opposed to its discriminatory effects on the individual [23]; however part of that assessment includes comparing the likely impact of the criterion on the affected group as against the importance of the aim to the employer [24]. It is noted that Mr Homer was not dismissed or downgraded for not having a law degree, but was simply denied the additional benefits attaching to the newly introduced third threshold. The question was whether it was reasonably necessary in order to achieve the legitimate aims of the scheme to deny those benefits to people in his position [24]. It was not clear whether the Employment Tribunal had been suggesting a specific exception for Mr Homer alone: that was not an appropriate response to a discrimination claim. There has to be some way of modifying the criterion for everyone adversely affected but without introducing discrimination against another group [16, 25]. Lord Hope addresses the argument made that exempting Mr Homer from the third threshold requirements would unfairly advantage persons of Mr Homers age group. He does not accept that discrimination on grounds of age can be regarded as justified simply because eliminating it would put others at a disadvantage which is not related to their age [30]. Lord Mance however expresses some concern about the possibility of making an exemption for Mr Homer personally or for all those persons in the same age group as him, on the basis that it might unjustifiably discriminate against younger employees on the ground of their age [36].

On 6 September 2004 the Appellant, having been arrested the day before and taken to Perth police station, was driven by car to a police station in Glasgow by two officers of Strathclyde Police. He alleges that he was abused, threatened with violence and assaulted by the Strathclyde police officers before, during and after that journey. He applied for legal aid in order to take proceedings against the Chief Constable of Strathclyde Police (the Chief Constable). Strathclyde Police treated the intimation of the legal aid application in November 2004 as a complaint and remitted the matter to its Complaints and Discipline Branch (the Complaints Branch). The Complaints Branch reported receipt of the complaint to the Procurator Fiscal for Glasgow. In January 2005, the Procurator Fiscal instructed the Complaints Branch to carry out an investigation into the complaint. An officer of the Complaints Branch carried out the investigation and submitted his report to the Procurator Fiscal in March 2005. The Procurator Fiscal took a statement from the Appellant and considered the Complaints Branch report and a medical report submitted by the Appellant. On 6 June 2005, the Procurator Fiscal informed the Appellant that she was satisfied that the available evidence did not justify criminal proceedings against any police officer. The Complaints Branch then reviewed the complaint and informed the Appellant on 22 June 2005 that Strathclyde Police did not consider it necessary to take any proceedings for misconduct against the police officers. The Appellant raised an action in Glasgow Sheriff Court in August 2005. The first claim in the action was in relation to the alleged assault and was made against the Chief Constable. The Appellant sought damages at common law and under section 8(3) of the Human Rights Act 1998 for a breach of the substantive obligation under article 3 of the Convention (which prohibits torture and inhuman or degrading treatment or punishment). The second claim was in relation to an alleged failure to carry out an effective investigation into the Appellants complaint, in breach of the procedural obligation under article 3 of the Convention. The Appellant sought damages under section 8(3) of the Human Rights Act 1998 and section 100(3) of the Scotland Act 1998 against the Chief Constable and the Lord Advocate jointly and severally for this breach. The Chief Constable and the Lord Advocate argued that the Appellants second claim was irrelevant. After a debate, the Sheriff agreed. The Appellants appeal to the Sheriff Principal was unsuccessful. The Appellant then appealed to the Inner House of the Court of Session. At the start of the first day of a three day appeal hearing, the Court informed counsel that it seemed to it that there were fundamental questions about the competency of the action. The suggestion was that the second claim was distinct and separate and raised questions of administrative law that would require to be made the subject of judicial review in the Court of Session. Proceedings were adjourned until 2.00 pm that afternoon to allow counsel to consider this issue. Having heard argument on the point, it discharged the remainder of the hearing and took time to consider its judgment [1 5]. The Court then issued an opinion which dealt with the point raised at the appeal hearing and set out its reasons for holding on another ground, before hearing the parties on the point, that the action as a whole was incompetent. The parties were given an opportunity to make submissions at a procedural hearing, but no submissions were made. The Court then dismissed the action. The Appellant appealed to the Supreme Court. The issues in the appeal were: (1) whether it was competent for the Appellant to bring his two article 3 claims, or either of them, by way of action; and (2) whether it was competent for the Appellant to raise the first claim against the Chief Constable and the second claim against the Chief Constable and the Lord Advocate together in the same action [6, 7 10 and 12]. The Supreme Court unanimously allows the appeal. The Appellants action is competent. The case will be returned to the Inner House for a hearing of the appeal against the decision of the Sheriff Principal. The judgment is given by Lord Hope with whom all the other Justices agree. As the Court of Session is to a large extent the master of its own procedure, the Supreme Court will always be reluctant to interfere with the judgment of the Inner House on a question of competency unless the judgment is wrong in principle. Regrettably, however, that test is satisfied in this case [13]. The objections to the competency of the two article 3 claims are unsound in principle. The Appellant is not seeking an exercise of the supervisory jurisdiction of the Court of Session in order to have decisions of the Chief Constable or the Lord Advocate reviewed or set aside. His case in relation to both article 3 claims is based on allegations of acts or omissions. He is not seeking, and does not need, to have them corrected in order to provide a foundation for his claims. He seeks just satisfaction for the fact that, as he argues, his Convention rights have been breached. The claims are in essence simply those of damages. Judicial review for their determination would be inept [15 and 18 21]. The well established principle that one pursuer cannot sue two or more defenders for separate causes of action and conclude for a lump sum against them jointly and severally has not been breached in this case. It is clear that the wrongs which are the subject of the Appellants claims are separate and were committed at different times by different people. But the Appellant is not asking for a decree for the Respondents to be found liable in a single lump sum. The objection to the competency of the action on this basis is misconceived [22 and 24 25]. It is possible to imagine cases where an objection to competency could be taken on the ground that the pleadings defeat the ends of avoiding undue complexity and keeping good order in litigation. The guiding principle when such an objection is taken is whether the way the action is framed is likely to lead to manifest inconvenience and injustice. There is no absolute rule one way or the other, so long as the rule which says that it is incompetent for a pursuer to ask for a decree in a lump sum for separate wrongs is not broken. In this case the Appellants two claims, although separate, are interconnected in law and in fact, and it would be in the interests of justice and more convenient for them not to be separated. The pleadings are not unduly complex and good order in litigation favours the two claims being heard together. The objection to the competency of the action on this basis is also misconceived [27 28 and 32 33].

Provisions in the Landlord and Tenant Act 1985 (the 1985 Act) and the Service Charges (Consultation requirements) (England) Regulations 2003 (SI 2003/1987) impose statutory requirements and restrictions on a landlord, which impinge on its ability to recover service charges from tenants, typically of flats in a block of flats. Unless certain consultation requirements (the Requirements), which can be conveniently divided into four stages, are complied with by the landlord, or dispensed with by the Leasehold Valuation Tribunal (the LVT), the landlord cannot recover more than 250 from each tenant in respect of works for which the service charge would otherwise be greater. Section 20ZA(1) of the 1985 Act provides that the LVT may dispense with the Requirements if satisfied that it is reasonable to do so. The issue on this appeal concerns the width and flexibility of the LVTs jurisdiction to dispense with the Requirements, and the principles upon which that jurisdiction should be exercised. Daejan Investments Limited (Daejan) is the owner of the freehold of Queens Mansions (the Building). The Building is managed by Highdorn Co Ltd, which carries on business under the name of Freshwater Property Management (FPM). Five of the seven flats in the building are held under long leases, each of which is held by a respondent to this appeal (collectively the respondents). Each lease includes an obligation on the tenant to pay a specified fixed proportion of the cost of providing, among other things, the services which the landlord is obliged to provide, which include the repair of the structure, exterior and common parts of the building. The respondents were, at all material times, members of the Queens Mansions Residents Association (QMRA). In 2005, FPM sent QMRA a specification in respect of proposed works to the building (the Works), and appointed Robert Edward Associates (REA) as contract administrator. REA sent to QMRA and the respondents a notice of intention to carry out the Works, and provided estimates for them, thereby complying with stages 1 and 2 of the Requirements. REA informed the respondents and QMRA that two tenders appeared to be the most competitive: one from Rosewood Building Contractors (Rosewood); the other from Mitre Construction Ltd (Mitre). The respondents and QMRA were only provided with the priced specification submitted by Mitre. Daejan contracted for the Works with Mitre, but in so doing failed to comply with the third of the four stages of the Requirements, which required, among other things, Daejan to issue a statement to QMRA with a summary of observations on the estimates, its responses to them, and notice of where they would be available for inspection. Daejan requested the LVT to grant it dispensation from the Requirements, so that Daejan would be entitled to recover just under 280,000 in total from the respondents, as opposed to 1,250 in the absence of dispensation. During the course of the proceedings, Daejan proposed a 50,000 deduction to the 280,000. The LVT regarded Daejans failure as a serious breach of the Requirements, which amounted to serious prejudice to the respondents. Accordingly, the LVT refused dispensation. The Upper Tribunal and the Court of Appeal agreed with this refusal. The Supreme Court, by a majority of three to two (Lord Hope and Lord Wilson dissenting), allows the appeal, granting Daejan dispensation from the Requirements on terms that (i) the respondents aggregate liability to pay for the works be reduced by 50,000, and (ii) Daejan pay the reasonable costs of the respondents in relation to the proceedings before the LVT. Lord Neuberger gives the majority judgment. The correct question in this case was whether, if dispensation was granted, the respondents would suffer any relevant prejudice, and, if so, what relevant prejudice, as a result of Daejans failure to comply with the Requirements. It is highly questionable whether any such prejudice would have been suffered. The only specific prejudice was a matter of speculation, namely that the respondents lost the opportunity of making out the case for using Rosewood to carry out the Works, rather than Mitre [77]. Although there was a partial failure by Daejan to comply with the third stage of the Requirements, the relevant prejudice to the respondents could not be higher than the 50,000 effectively offered by Daejan [84]. It would be pointless to remit to the LVT the issue as to whether the 50,000 was sufficient compensation [80]. The purpose of the Requirements is to ensure that tenants are protected from paying for inappropriate works, or paying more than would be appropriate. In considering dispensation requests, the LVT should focus on whether the tenants were prejudiced in either respect by the failure of the landlord to comply with the Requirements [44]. The Requirements are a means to the end of the protection of tenants in relation to service charges [46]. There is no justification for treating consultation and transparency as appropriate ends in themselves [52]. The right to be consulted is not a free standing right [78]. As regards compliance with the Requirements, it is neither convenient nor sensible to distinguish between a serious failing, and a minor oversight, save in relation to the prejudice it causes. Such a distinction could lead to uncertainty, and to inappropriate and unpredictable outcomes [47] [49]. The LVT has power to grant dispensation on appropriate terms [54], and can impose conditions on the grant of dispensation [58], including a condition as to costs that the landlord pays the tenants reasonable costs incurred in connection with the dispensation application [59] [61]. Where a landlord has failed to comply with the Requirements, there may often be a dispute as to whether the tenants would relevantly suffer if an unconditional dispensation was granted [65]. While the legal burden is on the landlord throughout, the factual burden of identifying some relevant prejudice is on the tenants [67]. They have an obligation to identify what they would have said, given that their complaint is that they have been deprived of the opportunity to say it [69]. Once the tenants have shown a credible case for prejudice, the LVT should look to the landlord to rebut it and should be sympathetic to the tenants case [68]. Insofar as the tenants will suffer relevant prejudice, the LVT should, in the absence of some good reason to the contrary, effectively require the landlord to reduce the amount claimed to compensate the tenants fully for that prejudice. This is a fair outcome, as the tenants will be in the same position as if the Requirements have been satisfied [71]. This conclusion does not enable a landlord to buy its way out of having failed to comply with the Requirements, because a landlord faces significant disadvantages for non compliance [73]. This conclusion achieves a fair balance between ensuring that tenants do not receive a windfall, and that landlords are not cavalier about observing the Requirements strictly [74]. The minority considers that the LVT should weigh the gravity of the non compliance with the Requirements in determining whether to grant dispensation [111]. This includes distinguishing between breaches or departures according to their level of seriousness, without having first to consider the amount of prejudice they may cause or may have caused [92]. The legislative history of the Requirements suggests that the gravity of non compliance is relevant [103] [109]. Substantial non compliance with the Requirements entitles the LVT to refuse to grant dispensation [91],[110]. Daejans termination of the consultation process represented serious non compliance with the Requirements [99]. Questions as to the gravity of non compliance are questions of fact and degree best left to the judgment of the LVT [88]. Judicial restraint should be exercised by an appellate court where it is prescribing limits on the way an expert tribunal is to perform its functions [89]. The LVTs decision to reject the 50,000 proposal was not based on an error of law that would entitle the Supreme Court to interfere with it [94],[117].

The appellant was assaulted in 2010, while serving as a police officer, and subsequently suffered post traumatic stress disorder (PTSD). In 2011, she was involved in an incident which led to her arrest. She asserted that her behaviour on that occasion was related to her PTSD. After investigation, she was made the subject of a disciplinary charge before a police misconduct panel (the panel). She accepted that she had been guilty of the alleged misconduct. In mitigation, she relied on her good record as a police officer and her PTSD. On 12 November 2012, the panel conducting the hearing decided that she should be dismissed without notice. The appellant appealed against her dismissal to the Employment Tribunal, where she claimed that the dismissal decision constituted disability discrimination and disability related harassment, and was consequent on a failure to make reasonable adjustments. She brought a separate appeal against her dismissal to the Police Appeals Tribunal under the separate statutory scheme. In June 2013, the Employment Tribunal struck out her claim and, in March 2014, the Employment Appeal Tribunal dismissed her appeal. The basis of both decisions was that the panel was a judicial body, and so the claim was barred by the principle of judicial immunity. The Court of Appeal dismissed the further appeal. The appellant appealed to the Supreme Court. The Supreme Court unanimously allows the appeal, finding that EU law requires police officers to be able to bring claims in the Employment Tribunal in respect of dismissals following proceedings before a police misconduct panel. Such claims cannot be barred by judicial immunity. Lord Reed, with whom the other Justices agree, gives the lead judgment. Lord Hughes gives a concurring judgment. Directly effective EU rights: where directly effective EU rights are in issue, EU law must be both the starting point and the finishing point of the analysis, since EU law takes priority over domestic law. EU Council Directive 2000/78/EC (the directive) confers on all persons, including police officers, a directly effective right to be treated in accordance with the principle of equal treatment in relation to employment and working conditions, including dismissals. The UK is obliged to ensure that appropriate judicial and/or administrative procedures are available, and that effective, proportionate and dissuasive sanctions are applied. The procedures under national law must comply with the general principles of effectiveness and equivalence, and with the right to an effective remedy under article 47 of the Charter of Fundamental Rights of the European Union [27 28]. Principles of equivalence and effectiveness: The principle of equivalence requires that police officers must have the right to bring claims of treatment contrary to the directive before Employment Tribunals. This is because comparable discrimination claims can be brought before those tribunals in domestic law. On that basis, leaving police officers with a claim only to the Police Appeals Tribunal would not comply with the principle of equivalence [29]. Allowing police officers to bring claims to Employment Tribunals also fulfils the principle of effectiveness, because Employment Tribunals have the power to award a range of remedies, including compensation. The remedies available before the Police Appeal Tribunal are more limited than those available before the Employment Tribunals [29]. The UK is not entitled to deny police officers an effective and equivalent remedy. The right not to be discriminated against is a fundamental right in EU law. The creation of a statutory process, which entrusts disciplinary functions to persons who might benefit from judicial immunity, cannot bar complaints to an Employment Tribunal by police officers who claim that they have been treated contrary to the directive. National rules in relation to judicial immunity can be applied in accordance with EU law only in so far as they are consistent with EU law [30]. Interpretation of the legislation: The Equality Act 2010 plainly confers on police constables the right to bring proceedings before Employment Tribunals in order to challenge discrimination by chief officers and responsible officers. This is plain from section 42(1), which provides that a police constable is deemed to be the employee of the chief officer or of the responsible authority in relation to acts done by those persons in relation to the constable. It was presumably envisaged by Parliament that the exercise of disciplinary functions in relation to police officers would fall under those provisions [31]. Read literally, however, the Act does not cover the exercise of disciplinary functions in relation to police officers who have completed their period of probation, other than senior officers, when those disciplinary functions are entrusted to a misconduct panel. This is because the exercise of disciplinary functions by a panel is not an act done by either the chief officer or the responsible authority within the meaning of section 42(1). This reading fails to fully implement the directive [32]. The problem can be resolved by interpreting section 42(1) of the 2010 Act as applying to the exercise of disciplinary functions by misconduct panels in relation to police constables, by reading words into section 42(1)(a) to that effect. Such an interpretation runs with the grain of the legislation and is warranted under the EU principle of conforming interpretation. This does not mean the court is amending the legislation and is merely a way of interpreting the legislation to conform with EU law in a case such as the present [33 34]. Conclusion: The appeal is allowed. The reasoning of the Court of Appeal in the case of Heath v Commissioner of Police of the Metropolis [2004] EWCA Civ 943 (which held that EU law could not displace the common law rule of judicial immunity), was unsound. The present case should be remitted to the Employment Tribunal [35]. Lord Hughes gives a judgment, agreeing with the judgment of Lord Reed, and adding that the principle of judicial immunity generally serves a legitimate, proportionate and useful role. He considers that the scope for parallel or collateral proceedings in both the Employment Tribunals and the Police Appeals Tribunal, which exists under the present legislation, might be considered in any future review of the legislation [37 39].

The appellant, Nadine Montgomery, gave birth on 1 October 1999 at Bellshill Maternity Hospital, Lanarkshire. As a result of complications during delivery, her baby was born with serious disabilities. Mrs Montgomery sought damages on behalf of her son alleging negligence of the respondent Boards employee, Dr McLellan, who was responsible for her care during her pregnancy and labour. Mrs Montgomery has diabetes. Women with diabetes are more likely to have large babies and there is a 9 10% risk of shoulder dystocia during vaginal delivery (the babys shoulders being too wide to pass through the mothers pelvis). Though this may be resolved by emergency procedures during labour, shoulder dystocia poses various health risks to the woman and baby. Mrs Montgomery had raised concerns about vaginal delivery but Dr McLellans policy was not routinely to advise diabetic women about shoulder dystocia as, in her view, the risk of a grave problem for the baby was very small, but if advised of the risks of shoulder dystocia women would opt for a caesarean section, which was not in the maternal interest. Following the decision of the House of Lords in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985], the Lord Ordinary held that whether a doctors omission to warn a patient of risks of treatment was a breach of her duty of care was normally to be determined by the application of the Bolam test (Bolam v Frierm Hospital Management Committee [1957] i.e., whether the omission was accepted as proper by a responsible body of medical opinion, which could not be rejected as irrational. Given the expert medical evidence for the Board, the Bolam test was not met. The Lord Ordinary accepted that where treatment involves a substantial risk of grave adverse consequences, in some cases a judge could conclude that a patients right to decide whether to consent to that treatment was so obvious that no prudent doctor could fail to warn of the risk. In the Lord Ordinarys view, the risk of shoulder dystocia, though significant, did not in itself require a warning since in most cases shoulder dystocia was dealt with by simple procedures and the chance of a severe injury to the baby was tiny. Following Sidaway, he also noted that if a patient asks about specific risks, the doctor must answer, but did not accept that Mrs Montgomery asked such questions. The Inner House of Session refused Mrs Montgomerys reclaiming motion and upheld the Lord Ordinarys conclusion. Since both courts held that no duty owed was to her, the issue of causation did not arise. Both nonetheless held that Mrs Montgomery had not shown that, had she been advised of the risk, she would have elected to undergo a caesarean, thus avoiding the risks to the baby. The Supreme Court unanimously allows the appeal. Lord Kerr and Lord Reed give the lead judgment with which Lord Neuberger, Lady Hale, Lord Clarke, Lord Wilson and Lord Hodge agree. Lady Hale gives a concurring judgment. Lord Kerr and Lord Reed find that since Sidaway, it has become clear that the paradigm of the doctor patient relationship implicit in the speeches in that case has ceased to reflect reality. It would be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent on information from doctors. This is reflected in the General Medical Councils guidance. Courts are also increasingly conscious of fundamental values such as self determination. [74 80] Societal and legal changes point towards an approach to the law which treats patients so far as possible as adults capable of understanding that medical treatment is uncertain of success and may involve risks, of accepting responsibility for risks affecting their lives, and of living with the consequences of their choices. This entails a duty on doctors to take reasonable care to ensure that a patient is aware of material risks inherent in treatment. Further, because the extent to which a doctor may be inclined to discuss risks with patients is not determined by medical learning or experience, applying the Bolam test to this question is liable to result in the sanctioning of differences in practice attributable not to divergent schools of thought in medicine, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients. [81 85] Lord Kerr and Lord Reed reason that an adult of sound mind is entitled to decide which, if any, of the available treatments to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken. The doctor is under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in proposed treatment, and of reasonable alternatives. A risk is material if a reasonable person in the patients position would be likely to attach significance to it, or if the doctor is or should reasonably be aware that their patient would be likely to attach significance to it. Three further points emerge: first, assessing the significance of a risk is fact sensitive and cannot be reduced to percentages. Second, in order to advise, the doctor must engage in dialogue with her patient. Third, the therapeutic exception is limited, and should not be abused. [86 91] In the present case, Dr McLellan ought to have advised Mrs Montgomery of the substantial risk of shoulder dystocia. The Court of Session focused on the relatively small consequent risk of grave injury to the baby. However, shoulder dystocia itself is a major obstetric emergency; the contrast with the tiny risks to the woman and baby involved in an elective caesarean is stark. [94] On causation, the courts below had in mind the supposed reaction of Mrs Montgomery if advised of the minimal risk to the baby of a grave injury consequent on shoulder dystocia. The lower courts should have focused on her likely reaction if advised of the risk of shoulder dystocia itself. Dr McLellans unequivocal view was that Mrs Montgomery would choose a caesarean if so advised; indeed that is precisely why she withheld that information. [101, 103] The Lord Ordinary considered the doctor to be an impressive witness. The only reasonable conclusion is that had Dr McLellan discussed dispassionately with Mrs Montgomery the risk of shoulder dystocia, the potential consequences, and the alternatives, she probably would have elected for a caesarean section. [104] Lady Hale reasons that it is impossible to consider a particular procedure in isolation from its alternatives. Pregnancy is a powerful illustration. Where either mother or child is at heightened risk from vaginal delivery, doctors should volunteer the pros and cons of that option compared to a caesarean. We are concerned not only with risks to the baby, but also risks to the mother. [109 114] Dr McLellans view that caesareans are not in maternal interests is a value judgment; once the argument departs from purely medical considerations, the Bolam test is inapposite. A patient is entitled to take into account her own values and her choices must be respected, unless she lacks capacity. She is at least entitled to information enabling her to take part in the decision. [114 115]

The Respondents were each detained as suspects for questioning at a police station under sections 14 and 15 of the Criminal Procedure (Scotland) Act 1995. Their detentions took place prior to the decision of this Court in Cadder v HM Advocate [2010] UKSC 43, and they did not have access to legal advice either before or during their police interviews. In the course of their interviews, they each made statements which were later relied on by the Crown at their trials. They were convicted and sentenced to various periods of imprisonment. They appealed, and their appeals were still current when the judgment in Cadder was delivered on 26 October 2010. The Respondents argued, on the basis of Cadder, that the leading of evidence of the statements they made during their police interviews was a breach of their rights under Articles 6(3)(c) and 6(1) of the European Convention on Human Rights, and that, in terms of section 57(2) of the Scotland Act 1998, the Lord Advocate had no power to lead that evidence. For Birnie, it was also submitted that the reliance by the Crown upon his admissions in these circumstances deprived him of a fair trial, to which he was entitled under Article 6(1) and at common law. The Crowns objections to the devolution issue were repelled by the Appeal Court, and the Crown appealed to the Supreme Court. On the question whether the Respondents had waived their right to legal assistance, the Lord Advocates position before the Court was that the important point in these appeals was that raised in the case of Birnie. Unlike the other two Respondents, Birnie made an unsolicited statement following his police interview, having declined the opportunity to have access to a lawyer prior to and while making it. The outstanding matters before the Court were therefore: (i) Whether the time bar referred to in section 100(3B) of the Scotland Act 1998, as amended, applies (ii) Whether Birnie waived his right of access to a lawyer when he made his unsolicited statement (iii) Whether the reliance by the Crown upon the appellants admissions in these circumstances The Supreme Court unanimously dismisses the Crowns appeal on the question whether section 100(3B) of the Scotland Act 1998 applies in this case. It unanimously dismisses its appeals on the issue as to waiver in regard to the police interviews of Jude and Hodgson. By a majority of 4 1, it allows the appeal on the question whether it was incompatible with Birnies right to a fair trial for the Crown to lead and rely on the evidence of the statement which he made following his police interview and remits that matter for determination by the High Court of Justiciary. Lord Hope gives the leading judgment. Lord Kerr gives a partly dissenting judgment. (1) Time Bar: Section 100(3B) of the Scotland Act 1998, as amended, provides that any proceedings brought on the ground that an act of a member of the Scottish Executive is incompatible with the Convention rights must be brought before the end of the period of one year beginning with the date on which the act complained of to Judes appeal; following his police interview; and deprived him of his right to a fair trial under Article 6(1) of the Convention. took place. The question is whether that section applies to proceedings brought by way of an appeal under the 1995 Act [6]. A criminal appeal under section 57(2) of the Scotland Act falls plainly into the category of a proceeding that is by virtue of the Scotland Act. The fact that the procedure under which the complaint is made is provided by the 1995 Act is irrelevant as far as this point is concerned, and does not render section 100(3B) inapplicable[13]. The opening subsection of section 100 makes the same distinction as that found in section 7(1) of the Human Rights Act 1998 between bringing proceedings on the basis of Convention rights, and relying on Convention rights in any such proceedings. The wording is not exactly the same in the two Acts, but the assumption is that they have the same effect. The time bar under section 7(5) of the Human Rights Act refers only to proceedings under section (1)(a) and not those under (1)(b) [15]. The time bar in section 100(3B) has the same effect, so it does not apply to proceedings of the kind referred to in section 100(1)(b). The point is that proceedings under that section are proceedings that have been brought by someone other than the person who maintains that the act in question is incompatible with the Convention rights [16]. An appeal against conviction or sentence is still part of the prosecution process that has been brought by the Lord Advocate [17]. Further, the 1995 Act contains its own system of time limits for the bringing of appeals. It would be very odd if an appeal were subject to two different time limits under two different Acts [18]. (2) Waiver. Birnie was offered rights of access to a solicitor before he made his statement and was also asked whether he wished to have a solicitor present while he was making it. He expressly declined both offers [26]. There is no absolute rule that the accused must have been given legal advice on the question whether or not he should exercise his right of access to a lawyer before he can be held to have waived it: see McGowan (Procurator Fiscal, Edinburgh) v B [2011] UKSC 54 [28]. It was not suggested in the course of argument that an absolute rule requiring reasons for the accuseds decision to waive his right to legal assistance is to be found in the jurisprudence of the Strasbourg court. The only question for this Court is whether the absence of such an inquiry amounted in itself to a breach of a Convention right. It is not for the Supreme Court to say how the law and practice respecting crimes should be developed by the common law in Scotland. The fact that the waiver was made without legal advice and without reasons being requested may be taken into account in the assessment as to whether Birnie understood the right that was being waived. But Strasbourg does not require the Court to hold that it would necessarily be incompatible with Article 6 to rely on statements made to police just because it was not ascertained why the suspect did not want to speak to a lawyer. The Strasbourg court has been careful, in general, to leave the national authorities to devise a more Convention compliant system without itself imposing specific requirements on the State. The Supreme Court should be no less careful in the way that it deals with Scottish criminal law and procedure [29]. There is room for argument as to whether Birnies statement was truly voluntary and in any event whether, taking all the circumstances into account, it was fair to admit this evidence. The question of overall fairness for the purposes of Article 6(1) must be examined in the light of all the facts and circumstances, and is therefore a matter for determination by the High Court of Justiciary [33]. For Lord Kerr, it is an indispensable prerequisite that there must be some means of ascertaining the reason that the right to legal assistance has been waived [53]. On the available evidence, it has not been established that there was an effective waiver by Birnie of his right to legal assistance [57].

Oxwich Leisure Park contains ninety one chalets, each of which is let for a period of 99 years from 25 December 1974 on very similar terms. The Appellants are the current tenants under 25 of the leases. 21 of these leases were granted between 1978 and 1991. Clause 3(2) of each lease contains a covenant to pay a service charge. Each lease also contains covenants by the lessor. One such covenant is to provide services to the Park, such as maintaining roads, paths, fences, a recreation ground and drains, mowing lawns, and removing refuse. The lessor also covenants in clause 4(8) that leases of other chalets shall contain covenants on the part of the lessees thereof to observe the like obligations as are contained herein or obligations as similar thereto as the circumstances permit. The Respondent, the current landlord, argues that the service charge provision in clause 3(2) requires the lessee to pay an initial annual service charge of 90, which increases at a compound rate of 10% for the first 70 chalets to be let, every three years, but for the last 21 chalets to be let, every year. The service charge provisions in four of the 70 leases were subsequently varied so that the increases were yearly rather than every three years. The language of the clause 3(2) differs in small respects between the leases, but a typical example is a covenant to To pay to the Lessor without any deduction in addition to the said rent a proportionate part of the expenses and outgoings incurred by the Lessor in the repair maintenance renewal and the provision of services hereinafter set out the yearly sum of Ninety Pounds and value added tax (if any) for [the first three years OR the first year] of the term hereby granted increasing thereafter by Ten Pounds per Hundred for every subsequent [three year period OR year] or part thereof. The issue on this appeal is whether the Respondents interpretation of clause 3(2) in those 25 leases, where the increase is to be every year, is correct. The Supreme Court holds that the Respondent is correct and therefore dismisses the tenants appeal by a majority of 4 1 (Lord Carnwath dissenting). Lord Neuberger (with whom Lord Sumption and Lord Hughes agree) gives the lead judgment and Lord Hodge gives a concurring judgment. When interpreting a written contract, the court must identify the intention of the parties by reference to what a reasonable person having all the background knowledge which would have been available to the parties would have understood them to be using the language in the contract to mean, focussing on the meaning of relevant words in their documentary, factual and commercial context. However, subjective evidence of any partys intentions must be disregarded [14 15]. In the present case, while reliance must be place on commercial common sense, this should not undervalue the importance of the language of the provision [17]. Commercial common sense cannot be invoked by reference to facts which arose after the contract was made; it is only relevant to ascertaining how matters would or could have been perceived as at the date of the contract. The fact that an arrangement has worked out badly or even disastrously is not a reason for departing from the natural meaning of the language; neither is the fact that a certain term appears to be very imprudent. It is not the function of the court interpreting a contract to relieve a party from the consequences of imprudence or poor advice [19 20]. Moreover, there exists no special principle of interpretation that service charge clauses are to be construed restrictively [23]. The natural meaning of clause 3(2) is clear; the first half of the clause provides that the lessee is to pay an annual charge to reimburse the lessor for the costs of providing the services which he covenants to provide, and the second half of the clause identifies how that service charge is to be calculated, namely as a fixed sum, with a fixed annual increase. This choice is readily explicable; the parties assumed that the cost of providing the services would increase, and they wished to avoid arguments as to the cost of the service and the apportionment between the tenants. The reasonable reader of the clause would see the first half of the clause as descriptive of the purpose of clause 3(2), namely to provide for an annual service charge, and the second half as a quantification of that service charge [24 27]. In the case of the 21 (now 25) leases which provide for an annual increase in the service, it is true that this has an alarming consequence; if one assumes a lease granted in 1980, the service charge would be over 2,500 this year, 2015, and over 550,000 by 2072. However, despite such consequences, this is not a convincing argument for departing from the natural meaning of clause 3(2) [30 32]. Although there are one or two small errors in the drafting, nothing has gone significantly wrong with the wording of the clause in any of the 25 leases [34]. Moreover, during the 1970s and much of the 1980s, annual inflation had been running at a higher annual rate than 10% for a number of years; the clause could be viewed as a gamble on inflation for both parties [35 36]. In relation to the leases which were varied between 1998 and 2002, it is extraordinary that a lessee under a lease which provided for an increase in a fixed service charge at the rate of 10% over three years should have agreed to vary the lease so that the increase was to be at the rate of 10% per annum, at a time when inflation was running at around 3% per annum. However, this does not justify reaching a different result [39 40]. The purpose of clause 4(8) and the opening words of clause 3 may well have been to create a letting scheme such that properties within a given area are intended to be let on identical or similar terms, normally by the same lessor, so that the terms are to be enforceable not only by the lessor against any lessee, but as between the various lessees [47 49]. The Appellants case is that there is an implied term in each of the 21 leases granted between 1977 and 1991 such that the lessor is not asking anything of the lessee which had not been required of lessees of other chalets, whether their leases were in the past or future. Even assuming that there is such a scheme, this would not be a correct term to imply. A term that the already existing 70 leases have services charges which increase at the compound rate of 10% p.a. as in the existing 21 leases would be inconsistent with an express term of the appellants leases [50 56]. Accordingly, the appeal should be dismissed [60 65]. In his dissenting judgment, Lord Carnwath considers that the commercial purpose of clause 3(2) was to enable the lessor to recover from the lessees the costs of maintaining the estate on their behalf, the payment by each lessee being intended to represent a proportionate part of the expenses incurred. He is of the view that the clause contained an inherent ambiguity between the two halves of the clause. [125 126]. There are only two realistic possibilities for the meaning of the second part of the clause; either it is a fixed amount which supplants any test of proportionality under the first part or it is no more than an upper limit to the assessment of a proportionate amount [128]. Lord Carnwath considers the consequences of the lessors interpretation to be so commercially improbable that only the clearest words would justify adopting it. For this reason he would have allowed the appeal [158 159].

On 12 May 2008, Mr Konecny (the appellant), a Czech national, was convicted in his absence by the District Court in Brno Venkov, Czech Republic (the District Court) of three offences of fraud, committed between November 2004 and March 2005, and was sentenced to eight years imprisonment. The extradition of the appellant was requested by the District Court by a European Arrest Warrant (EAW) dated 17 April 2013 pursuant to the European Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between member states (2002/584/JHA) (the Framework Decision). The Framework Decision is implemented in the United Kingdom by Part 1 of the Extradition Act 2003 (the 2003 Act). The EAW states that it is based on an enforceable judgment, namely the judgment of the District Court dated 12 May 2008. The EAW also specifies that the appellant will be afforded an unqualified right to be re tried upon return in the event that he makes an application to be re tried. On 2 March 2017, the EAW was certified by the National Crime Agency (NCA) and the appellant was arrested. The extradition hearing took place on 10 April 2017. In reliance on section 14(a) of the 2003 Act, the appellant argued that he was an accused person facing a prospective trial and that it would be unjust and oppressive to order his extradition taking into account the delay since 2004. The appellant also maintained that his extradition would infringe his rights under article 8 of the European Convention on Human Rights (ECHR). District Judge Ashworth ruled that it was the conviction provisions in section 14(b) of the 2003 Act which were the operative provisions and that, as a result, the passage of time to be considered under section 11(1)(c) and section 14 was restricted to the period from 12 May 2008 (the date of conviction by the District Court) onwards. He concluded that the circumstances of the delay did not justify a finding that it would be unjust or oppressive to return the appellant to the Czech Republic. He also considered that the public interest factors in favour of extradition outweighed the considerations relating to the appellants family and private life under article 8 of the ECHR. In this context he took account of the passage of time since 2004. On 27 September 2017, the High Court dismissed the appeal. On 7 November 2017, the High Court certified the following point of law of general public importance: In circumstances where an individual has been convicted, but that conviction is not final because he has an unequivocal right to a retrial after surrender, is he accused pursuant to section 14(a) of the 2003 Act, or unlawfully at large pursuant to section 14(b) for the purposes of considering the passage of time bar to surrender?. The appellant sought and obtained permission to appeal to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Lloyd Jones gives the sole judgment with which the other Justices agree. At the heart of the present appeal lies the issue of the characterisation of the appellant as an accused person or a convicted person. The EAW system is founded on the high level of mutual trust and confidence between member states and, as a result, in seeking to give effect to this distinction when applying implementing legislation, a national court will usually attach considerable weight to the description by the requesting judicial authority in the EAW of the position in its own national law. The view of the requesting judicial authority will not always be conclusive, but it will normally be influential and, in the absence of evidence to the contrary, it is likely to be followed [18]. The Court considers that the appellants case founded on EU law is not made out [28]. It also considers that the appellants case is inconsistent with the EAW scheme and the express provisions of the 2003 Act [34]. The express provisions in their natural meaning provide a coherent structure within which to address all cases of trial in absentia [37]. The Court considers that the following principles should be applied by a court in this jurisdiction when seeking to characterise a case as an accusation case or a conviction case [50]: (1) The dichotomy drawn by the Framework Decision between accusation warrants and conviction warrants is a matter of EU law. The Framework Decision does not have direct effect but national implementing legislation should, so far as possible, be interpreted consistently with its terms. (2) The court should seek to categorise the relevant facts by reference to their status and effects in the law and procedure of the member state of the requesting judicial authority. (3) Ordinarily, statements made by the requesting judicial authority in the EAW or in supplementary communications will be taken to be an accurate account of its law and procedure but evidence may be admitted to contradict them. (4) A person may properly be regarded as convicted for this purpose if the conviction is binding and enforceable under the law and procedure of the member state of the requesting authority. (5) For this purpose, it is not a requirement that a conviction should be final in the sense of being irrevocable. In particular, a convicted person who has a right to a retrial may, nevertheless, be properly considered a convicted person for this purpose, provided that the conviction is binding and enforceable in the law and procedure of the member state of the requesting authority. (6) While the view of the requesting judicial authority on the issue of characterisation cannot be determinative, the question whether a conviction is binding and enforceable will depend on the law of that member state. The Court accepts that where a person with a right to a retrial is correctly classified as a convicted person for the purposes of the 2003 Act it could work to his disadvantage in the operation of section 14 because the passage of time prior to his conviction is excluded from consideration. This is a deficiency in the drafting of the statute which requires consideration by the legislature at an early opportunity [54]. However, until such time as section 14 can be amended by Parliament, article 8 of the ECHR provides an appropriate and effective alternative means of addressing passage of time resulting in injustice or oppression in cases where the defendant has been convicted in absentia [58]. In this case, District Judge Ashworth correctly characterised the EAW as a conviction warrant. The EAW indicated there was an enforceable judgment and a legally effective conviction which would remain such until revoked. The Court was satisfied that full and appropriate account was taken of the passage of time since the offences were allegedly committed, and the appellant has not been disadvantaged in any way as a result [70]. For these reasons, the Court dismisses the appeal [72].

Lukaszewski (L), Pomiechowski (P) and Rozanski (R) are Polish citizens who are each the subject of a European Arrest Warrant (EAW) issued by the Polish court. Each is wanted in order to serve an existing sentence. L is wanted, in addition, to stand trial on ten charges of fraud. The fourth appellant, Halligen (H), is a British citizen whose extradition is sought to the USA under Part 2 of the Extradition Act 2003 (the Act) to face allegations of wire fraud and money laundering. All four appellants were arrested and brought before Westminster Magistrates Court. L, P and Rs extradition were ordered on (respectively) 28th January 2011, 2nd March 2011 and 4th March 2011. Hs case was sent to the Secretary of State for her to decide whether H should be extradited. On 22nd December 2010, Hs extradition was ordered by the Secretary of State, and the order and a letter setting out the Secretary of States reasons were sent by post and fax (at either 15.48 or 16.48) to Hs solicitors on that same day. All four appellants were remanded in custody at HMP Wandsworth pending extradition. The permitted time period for giving notice of appeal against an extradition order was 7 days in the case of L, P and R, and 14 days in the case of H. L, P and R were each assisted by a prison officer working in the legal services department at HMP Wandsworth to complete a notice of appeal. The legal services department faxed the notices of appeal to the Administrative Court for filing and stamping, which faxed back a copy of the sealed front page to the legal services department. The legal services department then faxed to the Crown Prosecution Services (CPS), as legal representatives of the judicial authority of the state requesting surrender, a copy of the sealed front page together with a cover sheet. In the case of each of L, P and R, all this occurred within the 7 day permitted period. However, in each case, the CPS was not served with a full copy of the notice of appeal, sealed or unsealed, until after the 7 day time limit had expired. The High Court held it had no jurisdiction to hear the appeals. A notice of appeal had to be both filed and served within the non extendable permitted period, and must (a) identify the appellant, (b) identify the decision against which he seeks to appeal, and (c) set out at least the gist of the basis on which the appeal is sought to be presented. Accordingly, the purported notices of appeal were invalidly constituted and served out of time. Hs solicitors prepared a notice of appeal, attaching grounds of appeal, on 23rd December 2010. The notice of appeal was filed and stamped on 29th December 2011, well within the 14 day permitted period which expired at midnight on 4th January 2011. However, only on 5th January 2011 did Hs solicitors send the notice of appeal to the CPS by fax and to the Home Office by post (reaching the latter on 6th January 2011). H himself had written from prison by fax to the Home Office on 29th December 2010 asking them to accept the letter as notice & service of my intent to appeal that decision and stating that he had instructed solicitors for that purpose. The High Court held it had no jurisdiction to hear Hs appeal, that Hs letter of 29th December 2011 did not constitute a valid notice of appeal, and the Secretary of State should be treated as having informed H of her decision on 22nd December, not 23rd December, 2011, so that the purported notice of appeal was in any event served out of time. All four appellants appealed the decisions of the High Court to the Supreme Court. The Supreme Court allows all four appeals unanimously. Lord Mance gives the leading judgment of the Court. Lady Hale gives a separate concurring judgment. The requirement under the Act that a notice of an appeal be given within the relevant permitted period meant that it had to be filed in the High Court and served on all respondents to the appeal within such period (following the decision of the House of Lords in Mucelli v Government of Albania [2009] UKHL 2) [5], [17]. However, a generous view should be taken of this requirement, bearing in mind the shortness of the permitted periods under the Act and that what really matters is that an appeal should have been filed and that all respondents be on notice of this, sufficient to warn them that they should not proceed with extradition pending an appeal [18]. In the cases of L, P and R, the irregularity involved in the absence of pages following the sealed front page of their notices of appeal was capable of cure. The CPS, having received in time the sealed front page of each notice of appeal, can have had no difficulty in identifying the decisions being appealed. It would be disproportionate if the practice followed by the court and the prison legal services department should lead to the appellants losing their right of appeal [19]. The Court regards Hs letter as notice to the Secretary of State of an appeal within the Act, albeit that the letter was highly irregular in its form [20]. However, even if it is accepted that Hs solicitors only received the relevant fax from the Secretary of State at 16.48, there was no basis for deeming the fax to have been received the following day. It follows that no notice of an appeal was given to the CPS within the permitted period, and Hs appeal is on its face impermissible as against both respondents [21]. In these circumstances, the question for the Court is whether the apparently inflexible time limits for appeals within the Act are subject to any qualification or exception [22]. Under Article 6(1) of the Human Rights Convention, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law in the determination of his civil rights and obligations or of any criminal charge against him. The Court is satisfied that extradition does not involve the determination of a criminal charge [31]. However, H, as a UK citizen, enjoyed a civil right to enter and remain in the UK as and when he pleased [32]. Proceedings under the Act, in that they may affect Hs freedom to remain in the UK, at least for the duration of foreign extradition proceedings, involve the determination of that civil right [32]. It follows that the extradition proceedings against H fall within Article 6(1) [33]. In the case of a UK citizen, the statutory provisions concerning appeals can and should be read (pursuant to the obligation of conforming interpretation under section 3(1) of the Human Rights Act 1998) as being subject to the qualification that the court must have a discretion in exceptional circumstances to extend time for both filing and service, where such statutory provisions would otherwise operate to prevent an appeal in a manner conflicting with the right of access to an appeal process under Article 6(1). Accordingly, the Court allows all four appeals and remits each appeal against extradition to the High Court to be heard there [19], [41].

The respondent, Mr Sevilleja, owned and controlled two companies (the Companies) incorporated in the British Virgin Islands (BVI). The appellant, Marex Financial Ltd (Marex), brought proceedings against the Companies for sums due under contract. After a trial in the Commercial Court before Field J, Marex obtained judgment for over US$5.5 million, plus costs of1.65 million. On 19 July 2013, Field J gave the parties a confidential draft of his judgment, due to be handed down six days later. From 19 July 2013, Mr Sevilleja allegedly procured the offshore transfer of over US$9.5 million from the Companies London accounts into his personal control. By the end of August 2013, the Companies assets were just US$4,329.48, such that Marex could not receive payment of its judgment debt and costs. In December 2013, Mr Sevilleja placed the Companies into liquidation in the BVI, their alleged debts exceeding US$30 million. Marex is the only creditor not connected to Mr Sevilleja. According to Marex, the liquidation process is effectively on hold, with the liquidator failing to investigate claims submitted to him, to locate Marexs missing funds, or to issue proceedings against Mr Sevilleja. In the present proceedings, Marex seeks damages from Mr Sevilleja in tort for (1) inducing or procuring the violation of its rights under Field Js judgment and orders, and (2) intentionally causing it to suffer loss by unlawful means. The sums claimed are (1) the judgment debt, interest and costs awarded by Field J, less an amount Marex recovered in US proceedings, and (2) costs incurred by Marex in its attempts to obtain payment. Mr Sevilleja contends that Marexs claim in respect of (1) is barred by the reflective loss principle. That contention was upheld by the Court of Appeal. The Supreme Court unanimously allows the appeal. The leading judgment is given by Lord Reed, with whom Lady Black and Lord Lloyd Jones agree. Lord Hodge gives a separate judgment agreeing with the reasoning of Lord Reed. Lord Sales delivers a separate judgment, with which Lady Hale and Lord Kitchin agree, allowing the appeal on a wider basis. After explaining relevant general principles of law [2 13], and the background to the appeal [14 22], Lord Reed examines the decisions which are said to have established the reflective loss principle, namely Prudential Assurance Co Ltd v Newman Industries Ltd (No 2) [1982] Ch 204 [23 39] and Johnson v Gore Wood & Co [2002] 2 AC 1 [40 67]. He concludes that Prudential laid down a rule of company law: a diminution in the value of a shareholding or in distributions to shareholders, which is merely the result of a loss suffered by the company in consequence of a wrong done to it by the defendant, is not in the eyes of the law damage which is separate and distinct from the damage suffered by the company, and is therefore not recoverable. The rule is based on the rule in Foss v Harbottle (1843) 2 Hare 461, which would be subverted if the shareholder could pursue a personal action in those circumstances [35 39]. That understanding of the rule is consistent with the speech of Lord Bingham in Johnson. Lord Milletts speech, however, treated the reflective loss principle as a wider principle of the law of damages, based on the avoidance of double recovery [61 63]. Lord Reed then reviews subsequent cases in which the reflective loss principle as explained by Lord Millett has developed, including Giles v Rhind [2002] EWCA Civ 1428, Perry v Day [2004] EWHC 3372 (Ch), and Gardner v Parker [2004] EWCA Civ 781 [68 77]. This examination makes clear the need to distinguish (1) cases where claims are brought by a shareholder in respect of loss which he has suffered in that capacity, in the form of a diminution in share value or in distributions, which is the consequence of loss sustained by the company, in respect of which the company has a cause of action against the same wrongdoer, and (2) cases where claims are brought, whether by a shareholder or by anyone else, in respect of loss which does not fall within that description, but where the company has a right of action in respect of substantially the same loss [80]. The first kind of case is barred by the rule in Prudential, regardless of whether the company recovers its loss in full [80 83]. In the second kind of case, recovery is permissible in principle, although it may be necessary to avoid double recovery [84 88]. In light of this, Lord Reed holds that the reasoning in Johnson (other than that of Lord Bingham) should be departed from, and that Giles, Perry and Gardner were wrongly decided [89]. The rule in Prudential does not apply to Marex, which is a creditor of the Companies, not a shareholder [92]. Lord Hodge agrees with Lord Reeds reasons, noting that the panel was in agreement that the reflective loss principle has been expanded too greatly and would cause injustice if applied to Marexs situation [95]. Lord Hodge also points out the central role of company law in the Court of Appeals judgment in Prudential, and how the reflective loss principles departure from those foundations has given rise to problems and uncertainties in the law [95 108]. The bright line rule has a principled basis in company law and ought not to be departed from now [109]. Lord Sales concludes that Marexs appeal should be allowed, but for reasons differing from those of the majority [116]. The majority see the reflective loss principle, per Prudential, to be a rule of law deeming a shareholders loss by reduction in value of their shares or dividends to be irrecoverable where the company has a parallel claim. However, in Lord Saless view, Prudential did not lay down a rule that would exclude a shareholders recovery where, factually, the loss was different from that of the company. The court in Prudential set out reasoning why it thought a shareholder in such a case had suffered no separate loss, but this is not sustainable [117 118]. The governing principle is indeed avoidance of double recovery, as was the view of the Law Lords in Johnson (contra Lord Reed) [119]. Lord Sales criticises the authorities use of the word reflective as being unhelpful. Although there is necessarily a relationship between a companys loss and the reduction in share values that it causes, the loss suffered by the shareholder is not the same as the loss suffered by the company and there is no one to one correspondence between the two [132]. The Court of Appeal in Prudential conflated the rationale for the rule in Foss v Harbottle with that for the reflective loss principle and assumed that a personal action would subvert the rule. That is not the case [142]. A shareholder ought not to be prevented from pursuing a valid personal cause of action; double recovery can be prevented by other means [149 155]. Lord Sales therefore questions the justification for the reflective loss principle and whether it should still be recognised [194]. Even if the principle is accepted, it should not be extended to cover a case involving loss suffered by a creditor of the company. There are better ways to avoid double recovery in such a situation, such as by according the wrongdoer a right of subrogation to the extent he pays the creditor sums in respect of the debt owed by the company [198 205].

The Appellant (the Father), James Rhodes, is a concert pianist, author and television film maker. He has written a book titled Instrumental, which he is hoping to publish, and it is aimed at providing a sound track to the story of his life. It includes searing accounts of the physical and sexual abuse and rape inflicted on him from the age of six by the boxing coach at his school. It goes on to chart his subsequent resorting to drink, drugs, self harm, attempts at suicide as well as his time in psychiatric hospital culminating in his redemption through learning, listening to and playing music. The book also refers to his first marriage, to an American novelist then living in London (the Mother), and the child they had together (the Son) to whom the book is dedicated. The Mother and Father divorced some years ago. During the divorce, they made a residence and contact order in London on 15 June 2009. This included a recital by which the Mother and Father agreed to use their best endeavours to protect the Son from any information concerning the past previous history of either parent which would have a detrimental effect upon the childs well being. The Mother and Son now live overseas. The Son has been diagnosed with Aspergers syndrome, attention deficit hyperactivity order, dyspraxia and dysgraphia. A first draft of the book, sent to the publishers in December 2013, was leaked to the Mother in February 2014. Some changes were made, such as the use of pseudonyms. However, the Mother wanted more significant changes as she was concerned that the book would cause psychological harm to the Son, now aged 11, if he came to read it. In June 2014, she brought proceedings (later taken over by the Sons godfather), on behalf of the Son, on various grounds seeking an injunction prohibiting publication or the deletion of a large number of passages. She adduced evidence from a consultant child psychologist whose opinion was that the Son was likely to suffer severe emotional distress and psychological harm if exposed to the material in the book because of his difficulties in processing information. In July 2014, Bean J in the High Court dismissed the application for an interim injunction. In October 2014, the Court of Appeal reversed the High Court, finding that only the claim for intentionally causing harm under the tort in Wilkinson v Downton should go to trial. It also granted an interim injunction restraining the Father from publishing certain information such as, for example, graphic accounts ofsexual abuse he suffered as a child. The Father appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. Lady Hale and Lord Toulson (with whom Lord Clarke and Lord Wilson agree) deliver the judgment of the Court. Lord Neuberger (with whom Lord Wilson agrees) gives a concurring judgment. Lady Hale and Lord Toulson consider the domestic case law [31 67] and other common law authorities [68 71] in relation to the tort in Wilkinson v Downton. It consists of three elements: (1) a conduct element; (2) a mental element; and, (3) a consequence element. Only (1) and (2) are issues in this case [73]. The conduct element requires words or conduct directed towards the claimant for which there was no justification or reasonable excuse, and the burden of proof is on the claimant [74]. In this case, there is every justification for the publication. The Father has the right to tell the world about his story. The law places a very high value on freedom of speech. The right to disclosure is not absolute because a person may, for example, owe a duty to treat information as confidential, but there is no general law prohibiting the publication of facts which will distress another person. It is hard to envisage any case where words which are not deceptive, threatening or (possibly) abusive could be actionable under the tort recognised in Wilkinson v Downton [75 77]. In addition, the injunction prohibiting graphic language was wrong in principle and in form; it is insufficiently clear what graphic means and, in any event, a right to convey information to the public includes a right to choose the language in which it is expressed in order to convey the information most effectively [78 79]. The required mental element is an intention to cause physical harm or severe mental or emotional distress. Recklessness is not enough [87]. In this case, there is no evidence that the Father intends to cause psychiatric harm or severe mental or emotional distress to his Son [89], and there is no justification for imputing an intention to cause harm on the basis of harm being foreseeable. Intention is a matter of fact. It may be inferred in an appropriate case from the evidence, but is not to be imputed as a matter of law [81 82]. There is no real prospect of establishing either the conduct element or the mental element of the tort [90]. Lord Neuberger allows the appeal for the same reasons. It would be an inappropriate restriction on freedom of expression to restrain publication of a book simply because another, to whom the book is not directed, might suffer psychological harm from reading it [97]. He adds some further remarks as to the scope of the tort in Wilkinson v Downton [101 121].

A mother appeals against an order of the English Court of Appeal that she should immediately return her son, WS (hereafter W), who is aged two, to Australia. The order was made pursuant to Article 12 of the Convention on the Civil Aspects of International Child Abduction signed at The Hague on 25 October 1980 (the Convention) and to section 1(2) of the Child Abduction and Custody Act 1985, which incorporates the Convention into domestic law [1]. The mother is British, with Australian citizenship; the father is Australian [4]. The parents, who were not married, lived with W in Sydney [4]. In 2005 the mother had moved to Australia with her British husband; her marriage failed and she was divorced in 2008 [8]. In October 2008 Ws parents began to cohabit [8]. Between 1994 and 1998 the father had been a heroin addict and unfortunately, the beginning of their relationship and of the mothers pregnancy in February 2009, was a period of impending financial disaster for him, which ended in the collapse of his business with massive debts [9]. The father later took work as an estate agent, but contributed little to the household expenditure, which was largely met by the mother who was employed as a specialist clinical nurse [9]. The grave financial problems led to serious alcohol and drug relapses on the fathers part between 2009 and 2011 [10]. The mother suffered mental health problems, including anxiety and depression relating to separation from her husband in 2007, for which she took medication until she became pregnant in 2009 [17]. From June 2010 the mother had had extensive psychotherapy in Australia, which continued after her return to the UK [17], for a chronic anxiety condition [18]. In January 2011 the relationship between the parents began to break down. On 19 January 2011 the mother contends that she found the father injecting himself in the car in the garage and so she called the police and told him not to enter the flat again; the father admits only to drinking that day [11], although subsequently in reply to emails from the mother he did not deny the drug taking [11]. In light of the many text and emails that were to pass between the parents from January and June 2011, the mothers serious allegations against the father were admitted or could not be realistically be denied [7]. On 27 January 2011 the Australian police obtained on the mothers behalf, without notice, an Apprehended Violence Order (similar to a non molestation order) [12]. On 2 February 2011 the mother removed W to England, without the fathers consent or the permission of an Australian court. The removal was therefore in breach of the fathers rights of custody under Australian law and so it was wrongful for the purpose of Article 3 of the Convention. The only defence raised by the mother to the fathers application for an order for the summary return of W to Australia under the Convention was under Article 13(b) that there is a grave risk that his return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation [5]. The evidence of the mothers psychologist was that, in the event of a return of W, with the mother, to Australia, her fear of the fathers mental state and of his impulsive actions towards her together with the stress of isolation in Australia from her family would be likely to cause clinical depression, which in turn could diminish her secure attachment to W [18]. Further evidence from the jointly instructed psychiatrist was that the mother had suffered from Battered Womens Syndrome, a form of Post Traumatic Stress Disorder, followed by an acute stress reaction [25]. The psychiatrist appeared to consider that the necessary protective measures mainly comprised treatment for the father, but his evidence could, however, have been clearer on whether the protective measures suggested by the father would, in the event of return, protect W against the risk of physical or psychological harm [26]. At first instance, Charles J had declined to order Ws return to Australia. The Court of Appeal ordered Ws immediate return. The issue in this appeal was whether that Court should have proceeded on the basis that that there were nothing more than disputed allegations to support the mothers defence. A question also arose about the correct approach to the subjective perceptions of risk held by a parent. The Supreme Court unanimously allows the mothers appeal; Lord Wilson gives the judgment of the Court. In Re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27 the Supreme Court held that the terms of Article 13(b) of the Convention were plain, that they needed neither elaboration nor gloss; and that, by themselves, they demonstrated the restricted availability of the defence [6]. In that case, the Court held that where disputed allegations of domestic abuse are made, the court should first ask whether, if they are true, there would be a grave risk that the child would placed in an intolerable situation; and if so, the court must then ask how the child can be protected against the risk [20]. If the child cannot be protected, the court should seek to determine the truth of the disputed allegations. Following a careful appraisal of the documentary evidence, Charles J had held that a number of serious allegations made by the mother against the father were admitted or could not sensibly be denied and that, in respect of her other allegations, she had made out a good prima facie case that she was the victim of significant abuse at the hands of the father [29]. In light of this conclusion, it was unnecessary for Charles J to continue to address the mothers subjective perceptions, as her anxieties had been based on objective reality [29]. The Court of Appeal referred briefly to the nature of the parents relationship but did not refer to the many facts that provided the foundation of the mothers defence [30 31]. The Court of Appeal failed to appreciate that the mothers fears about the fathers likely conduct rested on more than disputed allegations and to have regard to the importance of the medical evidence [35]. The Court of Appeal had specified the crucial question as being whether the mothers anxieties were realistically and reasonably held. In In re E, however, the court held that a defence under Article 13(b) could be founded upon the anxieties of a parent about a return with the child to the state of habitual residence, which were not based upon objective risk to her, but were nevertheless of such intensity as to be likely to destabilise the parenting of that child to the point at which the childs situation would become intolerable [27]. No doubt a court will look very critically at an assertion of intense anxieties not based upon objective risk and will also ask whether they can be dispelled [27]. The critical question is what will happen if the parent and child are returned [34]. If, upon return, the parent will suffer such anxieties that their effect on the parents mental health will create a situation that is intolerable for the child, then the child should not be returned. It matters not whether the parents anxieties will be reasonable or unreasonable. The extent to which there will be good cause for those anxieties will nevertheless be relevant to the courts assessment of the parents mental state if the child is returned [34]. The judgment as to the level of risk had been one for the judge at first instance, and should not have been overturned unless, whether by reference to the law or to the evidence, it had not been open to the judge to make it [35]. Charles J had been entitled to hold that the interim protective measures offered by the father in the event of a return to Australia did not obviate the grave risk to W and it was not open to the Court of Appeal to substitute its contrary view [35]. In the recent case of X v Latvia (Application no. 27853/09) the ECtHR (Third Section) had reiterated its apparent suggestion in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122 that in a Hague Convention case an in depth examination of the issues was mandated by the parties Article 8 ECHR rights to respect for family and private life. The Supreme Court considers that neither the Convention nor, surely, the ECHR requires such an in depth examination.

The issue in this appeal is whether the Crown is bound by the prohibition of smoking in most enclosed public places and workplaces (the smoking ban), contained in Chapter 1 of Part 1 of the Health Act 2006 (the Act). The issue affects all those residing in, employed to work at or visiting any Crown premises, including prisons. Mr Black is serving an indeterminate sentence of imprisonment at HMP Wymott. He is a non smoker, with a number of health problems exacerbated by tobacco smoke, and he complains that the smoking ban is not being properly enforced in the common parts of the prison. He issued proceedings for judicial review of the Secretary of States refusal to provide confidential and anonymous access to the National Health Service Smoke free Compliance Line to prisoners. This would enable prisoners to report breaches of the smoking ban to the local authority charged with enforcing it, provided that the smoking ban applied to Crown premises. Mr Black succeeded in the High Court, which held that the smoking ban did bind the Crown. The Secretary of State appealed successfully to the Court of Appeal, which reversed the decision, holding that the Crown was not bound. The Supreme Court unanimously dismisses the appeal. It holds that Parliament must have intended that the Crown should not be bound by the smoking ban, since it would otherwise have made express provision for it in the Act. Lady Hale gives the only reasoned judgment, with which all the other justices agree. The classic rule is that a statutory provision does not bind the Crown save by express words or necessary implication [22]. This is so well established that many statutes will have been drafted and passed on this basis. Any decision of the Supreme Court to abolish this rule or reverse the presumption would operate retrospectively. It should not therefore do so, although Parliament, perhaps with the assistance of the Law Commission, is urged to give careful consideration to the merits of abolishing the rule [35]. The rule is not an immunity from liability, but a rule of statutory interpretation. The goal of all statutory interpretation is to discover the intention of the legislation, gathered from the words used in the statute in the light of their context and purpose. A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context, including its purpose. It is not enough that a statute is intended for the public good, or that it would be even more beneficial for the public if the Crown were bound. It is not, however, necessary that the purpose of the legislation would be wholly frustrated if the Crown were not bound; it is enough if an important purpose of the statute would have been frustrated. The court may take into account the extent to which the Crown is likely voluntarily to take action to achieve the purpose of the statute [36]. The test to be applied in this case is therefore whether, in the light of the words used, their context and the purpose of the legislation, Parliament must have meant the Crown to be bound by the smoking ban in the Act [37]. There is no hint in the government publications preceding the Act that the Crown would not be bound by the smoking ban. It is intended to protect workers and visitors from the dangers of exposure to second hand smoke when reliance on voluntary measures has not proved effective, and omitting Crown premises would deny statutory protection to many people [38]. There are significant differences between the enforcement of the smoking ban by environmental health officers under the Act and a voluntary ban on government premises, which can only be enforced through far less effective proceedings brought by individuals [39 40]. Notwithstanding these factors, however, there are powerful indicators in the language of the Act itself that the Crown is not to be bound by the smoking ban: The Act does not say the smoking ban binds the Crown, as it could easily have done [43]; This contrasts with similar statutes, such as the Health and Safety at Work Act 1974, which contain express provisions on how and to what extent they apply to the Crown [44 45]; The Act itself has just such a provision in another Part, relating to the supervision of management and use of controlled drugs [46]; Almost identical provision to that is also made in the statute enacting the Scottish equivalent to the smoking ban, which shortly preceded the Act [47]; and Even if it was desirable for the smoking ban to bind the Crown, the legislation is quite workable without this. The Crown could do a great deal by voluntary action to fill the gap [49]. Accordingly, the fact that where Parliament did mean to bind the Crown in the Act, it expressly said so and made tailored provision, is conclusive of the question of its lack of intention in relation to the smoking ban. With considerable reluctance, the Supreme Court therefore dismisses the appeal [50].

The Legal Services Board (the Board) supervises approved regulators of persons carrying on legal activities, including the Bar Standards Board (BSB), the Solicitors Regulation Authority (SRA) and the ILEX Professional Standards Board (IPS). On 26 July 2013 the Board granted an application by the BSB, SRA and IPS for approval of alterations to their regulatory arrangements to give effect to the Quality Assurance Scheme for Advocates (the scheme). In making its decision the Board had regard to the Better Regulation Principles in section 3(3)(a) of the Legal Services Act 2007: regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed. It noted concerns about standards of criminal advocacy and evidence pointing to a risk of advocacy not being of the required standard. The scheme provides for the assessment of criminal advocates in England and Wales by judges. Full accreditation for criminal work at one of the upper levels depends on an assessment as competent by a trial judge. The appellants, barristers practising criminal law, sought judicial review of the Boards decision on various grounds, all unsuccessful in the courts below. Permission to appeal to the Supreme Court was granted on the single question of whether the decision was contrary to regulation 14 of the Provision of Service Regulations 2009, which the Board considered did not apply. The Regulations implement Directive 2006/123/EC on services in the internal market. Regulation 14 is nearly identical to article 9(1) of the Directive. It provides: (1) A competent authority must not make access to, or the exercise of, a service activity subject to an authorisation scheme unless the following conditions are satisfied. (2) The conditions are that (a) the authorisation scheme does not discriminate against a provider of the service, (b) the need for an authorisation scheme is justified by an overriding reason relating to the public interest, and (c) the objective pursued cannot be attained by means of a less restrictive measure, in particular because inspection after commencement of the service activity would take place too late to be genuinely effective. The Supreme Court unanimously dismisses the appeal. Lord Reed and Lord Toulson give a joint judgment with which Lord Neuberger, Lady Hale and Lord Clarke agree Lord Reed and Lord Toulson consider the appellants submissions that the scheme fails to meet the conditions set out in regulation 14(2)(b) and (c) on the hypothesis that the Directive (and therefore the Regulations) applies to the scheme. [21, 118] They review the case law of the Court of Justice of the European Union (CJEU) on the principle of proportionality. This principle is given effect in the Directive in article 9(1)(c) from which regulation 14(2)(c) is derived. [22 82] Lord Reed and Lord Toulson reason that the issue is whether the legitimate and important objectives of protecting recipients of the services in question, and the sound administration of justice, justify the scheme in the form approved by the Board. Judicial assessment is automatic in relation to all advocates, and is carried out in order to decide whether full accreditation should be granted, for renewal of accreditation and for progression to higher levels. The BSB had previously suggested an alternative proposal whereby judicial assessment would take place only if concerns were raised about a particular advocate, through a rolling programme of judicial assessment. The critical question is whether the objectives cannot be attained by means of a less restrictive measure. [93 97] The proper basis for considering the requirement of article 9(1)(c) of the Directive and regulation 14(2)(c) is: (1) it is for the court to decide whether the scheme is proportionate, (2) it should approach the matter in the same way in which the CJEU would approach the issue in enforcement proceedings, (3) the court must decide whether the Board has established that the objectives cannot be attained by means of a less restrictive scheme, (4) that does not involve asking whether the Boards judgment was manifestly wrong, (5) in considering the question of necessity arising under article 9(1)(c), it should be borne in mind that EU law permits member states to exercise a margin of appreciation as to the level of protection to be afforded to the public interest pursued, and to exercise discretion as to the choice of means of protecting such an interest. [108] The Board noted the potentially serious consequences of poor advocacy and considered that a scheme applicable to advocates generally was justified in view of the gravity of the risk. It also noted that the scheme was to be reviewed after two years. [110 111] The core feature of the scheme was that every criminal advocate who wishes to practise at one of the upper levels must undertake judicial assessment at the outset. A precautionary scheme of this kind provides a high level of public protection and places a corresponding burden on those affected by it. Whether such a level of protection should be provided is exactly the sort of question about which the national decision maker is allowed to exercise its judgment. [114 116, 64 65] In Lord Reed and Lord Toulsons opinion, the Boards judgment that the level of risk presented by a self certifying scheme, such as the BSBs previous proposal, was unacceptable, did not fall outside the appropriate margin of appreciation. Since the only way of providing the desired level of protection was to have a comprehensive assessment scheme, it followed that such a scheme was proportionate to the aims pursued. Therefore, the Supreme Court dismisses the appeal.

This appeal concerns the law on discrimination. Mr and Mrs Bull, the Appellants, own a private hotel in Cornwall. They are committed Christians, who sincerely believe that sexual intercourse outside traditional marriage is sinful. They operate a policy at their hotel, stated on their on line booking form, that double bedrooms are available only to heterosexual married couples. The Respondents, Mr Hall and Mr Preddy, are a homosexual couple in a civil partnership. On 4 September 2008 Mr Preddy booked, by telephone, a double room at the Appellants hotel for the nights of 5 and 6 September. By an oversight, Mrs Bull did not inform him of the Appellants policy. On arrival at the hotel, Mr Hall and Mr Preddy were informed that they could not stay in a double bedroom. They found this very hurtful, protested, and left to find alternative accommodation. In March 2009 the Respondents, supported by the Equality and Human Rights Commission, brought proceedings against the Appellants under the Equality Act (Sexual Orientation) Regulations 2007 (EASOR). Regulation 4 EASOR makes direct or unjustified indirect discrimination on the grounds of sexual orientation unlawful. Regulation 3 EASOR defines discrimination. Regulation 3(1) states that direct discrimination exists where person A treats person B less favourably then others on the ground of Bs sexual orientation. Regulation 3(3) states that indirect discrimination exists when person A applies a general policy or practice to person B and others not of Bs sexual orientation, which puts B at a particular disadvantage compared to those others, and the policy or practice is not reasonably justified by reference to matters other than Bs sexual orientation. Regulation 3(4) provides that for Regulations 3(1) and 3(3), civil partnership and marriage are not to be treated as materially different. The Respondents argued that the refusal to provide them with a double bedroom was unlawful under Regulation 4 EASOR. The Appellants contended that their actions did not constitute discrimination under either Regulation 3(1) or 3(3) EASOR since they differentiated not on the basis of sexual orientation, but on marital status. They also suggested that EASOR should be applied compatibly with their right to manifest their religious beliefs under Article 9 of the European Convention on Human Rights (ECHR). In the Bristol County Court, the judge held that the Appellants actions directly discriminated against the Respondents under Regulation 3(1). The Court of Appeal unanimously dismissed the appeal against the judges decision. Mr and Mrs Bull appealed to the Supreme Court. They argued that (i) their policy did not constitute direct discrimination under Regulation 3(1) (direct discrimination); (ii) that their policy did constitute indirect discrimination, but that that indirect discrimination was justified (indirect discrimination); and (iii) that if their policy did contravene EASOR, EASOR should be read and given effect compatibly with their Article 9 ECHR right of freedom to manifest their religion (the ECHR issue). The Supreme Court unanimously dismisses the appeal. The leading judgment is given by Lady Hale, with supplementary judgments from all other members of the Court. On point (i) direct discrimination, Lady Hale, Lord Kerr and Lord Toulson hold that the Appellants policy constituted direct discrimination on grounds of sexual orientation. On point (ii) indirect discrimination the Court unanimously holds that if (as Lord Neuberger and Lord Hughes consider) the Appellants policy constitutes indirect discrimination, it is not justified. On point (iii) the ECHR issue, the Court unanimously holds that EASOR engages Article 9 ECHR, but is a justified and proportionate protection of the rights of others. There is therefore no breach of Article 9 ECHR which would require EASOR to be read down in the way the Appellants suggest. (i) Direct discrimination. According to Lady Hale and Lord Toulson: the Appellants concept of marriage was the Christian concept of the union of one man and one woman [25]. Civil partnership is a status akin to marriage, and the criteria of marriage and civil partnership are indissociable from the sexual orientation of those qualifying for the particular statuses [29, 67]. All married couples would be permitted a double bedroom by the Appellants, while no civilly partnered couples would be [29]. Regulation 3(4) reinforces this conclusion [26, 70]. The Courts judgment does not favour sexual orientation over religious belief: had the Respondents refused hotel rooms to the Appellants because of the Appellants Christian beliefs, the Appellants would equally have been protected by the laws prohibition of discrimination [54]. According to Lord Kerr: but for Regulation 3(4), the discrimination would have been indirect. The relevance of Regulation 3(4) is that the Respondents were to be treated as not materially different from a married couple [57 59]. Given that, the only remaining reason for the Respondents treatment by the Appellants was their sexual orientation [60]. Lord Neuberger and Lord Hughes reach a different conclusion. It is correct that, had the case concerned only discrimination against the unmarried, the Appellants would have discriminated only indirectly [74]. However, the Respondents civil partnership does not convert this into direct discrimination [75, 87]. The Appellants would have treated an unmarried heterosexual couple in precisely the same way that they treated the Respondents [77, 90 91]. Regulation 3(4) does not provide the answer to the question whether the Appellants treatment of the Respondents was on grounds of their sexual orientation [78, 92]. (ii) Indirect discrimination. The Appellants accepted that their policy constituted indirect discrimination [33]. The question was whether it was justified. It was difficult to see how As belief that sexual intercourse between civil partners is sinful could be justified by reference to matters other than Bs sexual orientation, since definitionally such intercourse was between those of the same sexual orientation [35]. Moreover, it is in the public interest to encourage stable, committed, long term relationships, whether homosexual or heterosexual [36]. The purpose of EASOR was to secure that those of homosexual orientation were treated equally. There was a carefully tailored exemption for religious organisations in Regulation 14 EASOR, which did not extend to the Appellants [38]. (iii) The ECHR issue. The Appellants rights under Article 9(1), which protects the manifestation of religious belief, are engaged [44]. However, EASORs interference with those rights is justified as a proportional means of achieving a legitimate aim: the protection of the rights and freedoms of people such as the Respondents [51]. There was therefore no need to read down EASOR [42].

John Walker, the appellant in these proceedings worked for the respondent, Innospec Ltd, from 1980 until his retirement in 2003. Throughout that time he made regular contributions to the firms occupational pension scheme. Mr Walker is gay and has lived with his male partner since 1993. They entered into a civil partnership on 23 January 2006 and are now married. In 2006 Mr Walker asked Innospec to confirm that, in the event of his death, they would pay the spouses pension, which the scheme provides for, to his civil partner. Innospec refused, because his service predated 5 December 2005, the date that civil partnerships were introduced in the UK, and any discriminatory treatment is therefore permitted under paragraph 18 of Schedule 9 to the Equality Act 2010. This provides that it is lawful to discriminate against an employee who is in a civil partnership or same sex marriage by preventing or restricting them from having access to a benefit, facility or service the right to which accrued before 5 December 2005 or which is payable in respect of periods of service before that date. If Mr Walker was married to a woman (or indeed if he married a woman in the future) she would be entitled on his death to a spouses pension of about 45,700 per annum. As things stand at present, Mr Walkers husband will be entitled to a pension of about 1,000 per annum (the statutory guaranteed minimum). Mr Walkers claim for discrimination was upheld by the Employment Tribunal, but Innospecs appeal to the Employment Appeals Tribunal was allowed, and Mr Walkers appeal to the Court of Appeal was dismissed. He now appeals to the Supreme Court. The Supreme Court unanimously allows Mr Walkers appeal and makes a declaration that (i) paragraph 18 of Schedule 9 to the Equality Act 2010 is incompatible with EU law and must be disapplied and (ii) Mr Walkers husband is entitled on his death to a spouses pension, provided they remain married. Lord Kerr (with whom Lady Hale and Lord Reed agree) gives the lead judgment. Lord Carnwath and Lord Hughes give a judgment concurring in part. EU Directive 2000/78/EC (the Framework Directive) requires member states to prohibit discrimination in the field of employment and occupation on various grounds including sexual orientation. The deadline for transposing the Directive into domestic law was 2 December 2003 and the UK did this within the deadline through legislation now incorporated into Part 5 of the Equality Act 2010 [17]. Parliament also, however, provided for the exception now contained in paragraph 18 of Schedule 9 to the 2010 Act restricting benefits payable in respect of periods of service before 5 December 2005. The essential question in this appeal is whether paragraph 18 of Schedule 9 is incompatible with the Framework Directive [20 21]. Although EU law does not impose any requirement on member states to recognise same sex partnerships, the European Court of Justice (CJEU) has held that if a status equivalent to marriage is available under national law, it is directly discriminatory contrary to the Framework Directive for an employer to treat a same sex partner who is in such a partnership less favourably than an opposite sex spouse. In the UK, Parliament has chosen to recognise same sex partnerships, first through the introduction of civil partnerships and subsequently through the recognition of same sex marriage itself [17 19]. The general rule under EU law, as in most modern legal systems, is that legislative changes apply prospectively. The CJEU has developed two principles to establish the temporal application of EU legislation the no retroactivity principle and the future effects principle [22 23]. These principles draw a distinction between the retroactive application of legislation to past situations (which is prohibited unless expressly provided for) and its immediate application to continuing situations (which is generally permitted). The relevant question is whether the legal situation has become permanently fixed [25]. The application of these principles presents a challenge when one is dealing with entitlement to an occupational retirement pension, the right to which may accumulate over decades and it may not be easy to identify the point at which it becomes permanently fixed [26]. The Court of Appeal, in dismissing Mr Walkers appeal, wrongly concluded that entitlement to a survivors pension is permanently fixed at the date of retirement [43]. It was influenced in this view by a line of the CJEUs case law exceptionally limiting the temporal application of one of its judgments relating to equal pay for men and women (the Barber line of case law). In the opinion of the majority of the Court, these cases are not relevant to the application of the Framework Directive in a case such as this. How the CJEU exceptionally applies a temporal limitation to one of its rulings has no inevitable bearing on the temporal application of legislation as a matter of principle [46]. In any event, two recent decisions of the Grand Chamber of the CJEU concerning the equal treatment rights of same sex partners to survivors pensions put success for Mr Walkers claim beyond doubt (Case C 267/06 Maruko v Versorgungsanstalt der Deutschen Bhnen and Case C 147/08 Rmer v Freie und Hansestadt Hamburg) [46]. From these cases, it is clear that, unless evidence establishes that there would be unacceptable economic or social consequences of giving effect to Mr Walkers entitlement to a survivors pension for his husband, at the time that this pension would fall due, there is no reason that he should be subjected to unequal treatment as to the payment of that pension [55]. Mr Walkers husband, provided he does not predecease him, and that they remain married at the time of Mr Walkers death, is therefore entitled under the Framework Directive to a spouses pension calculated on the basis of all the years of Mr Walkers service with Innospec. On that account, paragraph 18 of Schedule 9, in so far as it authorises a restriction of payment of benefits based on periods of service before 5 December 2005, is incompatible with the Framework Directive and must be disapplied [77]. Lord Carnwath and Lord Hughes agree with the majority that Mr Walkers appeal should be allowed, but on the more limited basis that the question of who qualified as his spouse fell to be determined after the Directive had come into force. They prefer to leave the broader question of whether the Barber line of case law is of any relevance to the application of the Framework Directive to be determined by the CJEU in OBrien v Ministry of Justice [2017] UKSC 46, in which the Court has decided to refer to the CJEU a question relating to the pension entitlement of part time workers [77 78].

These appeals arise out of a dispute between British Telecommunications Plc (BT), and four mobile network operators. The dispute is about the termination charges which BT is entitled to charge to mobile network operators for putting calls from the latters networks through to BT fixed lines with associated non geographic numbers beginning in 08. In 2009 BT notified mobile network operators of a proposal of a revised scheme of termination charges for 08 numbers. The defining feature of the new scheme was that mobile network operators would be charged at a rate which varied according to the amount which the originating network charged the caller. The higher the charges to the caller, the greater the termination charge. The new scheme was rejected by the four mobile net operators party to these appeals. The issue was submitted to the Office of Communications (Ofcom) under a statutory dispute resolution procedure. A decision of Ofcom can be appealed to the Competition Appeal Tribunal (CAT). Appeals from the CAT to the Court of Appeal can be brought on points of law only. Ofcom decided that BT should not be allowed to introduce the new charging scheme because the charges were not fair and reasonable. This conclusion was based on Ofcoms view that the proposed changes were not sufficiently likely to provide benefits to consumers (the welfare test). The CAT overturned Ofcoms decision and decided that BT should be able to introduce the new regime. The Court of Appeal restored the original decision of Ofcom. The Supreme Court unanimously allows the appeal and restores the order of the CAT. Lord Sumption gives the judgment of the court. The Court of Appeal, finding that it was for BT to justify its charges, had rejected the CATs determination for three reasons, each of which the Supreme Court addresses in its judgment. First, the Court of Appeal held that the CAT had been wrong to treat BT as having a prima facie right to change its charges, which needed to be displaced. It found that BT had no more than a right to do so subject to the determination of Ofcom if another party objected [30]. The Supreme Court notes that where, as in this case, Ofcom is resolving a dispute about a proposed variation of charges under an existing interconnection agreement, it is performing a mixture of adjudicatory and regulatory functions. The terms of the interconnection agreement are the necessary starting point for this process. Where the terms of the contract permit variation, Ofcom should give effect to that variation unless it would be inconsistent with its regulatory objectives, including under the welfare test [31 34]. Clause 12 of BTs Standard Interconnect Agreement confers a discretion on BT to unilaterally fix or vary its charges, but only within the limits fixed by the objectives of the regulatory environment imposed on it [3637]. BTs power to set its own charges is subject to any order, direction, determination or consent of Ofcom. However, Ofcom could not just do what it liked. Its function was to determine whether BT had exceeded the limits of its contractual discretion [38]. In this case, Ofcom has not found that the variation to the charges was inconsistent with the regulatory objectives, including the welfare test. Ofcom cannot reject the proposed charges simply because they might have adverse consequences for consumers, in the absence of any reason to think that they would [4244]. Secondly, the Court of Appeal held that the CAT had been wrong to attach weight to their view that a restraint on BTs freedom to set its own charges would itself distort competition. The Supreme Court disagrees with the Court of Appeal for three reasons. First, Ofcom was not exercising a regulatory function, but resolving a dispute under the unchallenged terms of an existing agreement. Secondly, the CAT was entitled to attach weight to the value of innovative charging structures as a form of competition. Thirdly, the CATs conclusion about the anti competitive effects of restricting price changes was a factual judgment. Since appeal lay to the Court of Appeal only on points of law, the CATs findings on the distortion of competition liable to result from the rejection of the new charging structure were not open to appeal [4647]. The Court of Appeal held that the CAT had been wrong to attach weight to the fact that BT, not having significant market power in a relevant market, was not subject to ex ante control of its prices on competition grounds. Given the reasoning on the other points, the Supreme Court considers it unnecessary to address this point in detail. It does however note that the fact that BT does not have significant market power in a relevant market does not mean that the promotion of competition is irrelevant to a dispute about charges. It only means that Ofcom may not exercise its regulatory power to control prices [4849].

The respondents are three Swiss or German companies which design, manufacture and sell luxury goods under well known trade marks. The appellants are the five largest internet service providers (ISPs) serving the UK. The respondents sought injunctions requiring the ISPs to block or attempt to block access to specified target websites, which were advertising and selling counterfeit copies of the respondents goods, in addition to various other internet addresses whose purpose is to enable access to a target website. The ISPs provide networks by which subscribers access content, but they neither provide nor store content. They do not themselves infringe the relevant trade marks. The judge granted the injunction and ordered the ISPs to pay the costs, including the costs of implementing the website blocking order. The Court of Appeal dismissed the ISPs appeal. This appeal to the Supreme Court is concerned only with costs. The main issue whether the respondents should have been required to bear various costs of implementing the website blocking order. The Supreme Court unanimously allows the appeal, so far as concerns the cost of complying with the injunction. The respondents will be ordered to indemnify the ISPs for the disputed implementation costs, but the judge was entitled to order the ISPs to pay the litigation costs. Lord Sumption gives the judgment, with which the other Justices agree. The English courts have long had jurisdiction in certain circumstances to order innocent parties to assist those whose rights have been invaded by a wrongdoer. That includes the jurisdiction exercised in Norwich Pharmacal Co v Customs and Excise Coms [1974] AC 133 which is commonly exercised for the purpose of assisting claimants to bring or maintain proceedings against wrongdoers, generally by ordering innocent intermediaries to provide information. The ordinary rule is that the intermediary is entitled to the costs of compliance with a Norwich Pharmacal order. Orders for the disclosure of information are only one category of order which can be made against a third party to prevent the use of his facilities for wrongdoing [8 12]. National laws concerning intellectual property rights are partially harmonised by a series of EU Directives, of which three are relevant: the E Commerce Directive 2000/31/EC, the Information Security Directive 2001/29/EC and the Enforcement Directive 2004/48/EC. The E Commerce Directive requires Member States to introduce limitations of liability (safe harbours) in respect of certain activities undertaken by information society services, which include ISPs [16 17]. None of the Directives deals expressly with the costs of enforcing a judicial remedy, as between the rights holder and an information society service [28]. In the Court of Appeal, Kitchen LJ viewed the recitals to the E Commerce Directive as implicitly supporting an order for the intermediary to bear the implementation costs. He suggested that, under the Directives, liability for the costs of compliance was the quid pro quo of the immunities and the absence of any general obligation owed by ISPs to monitor information which they transmit or store. Kitchen LJ found support for his analysis in the reasons of the Court of Justice of the EU (CJEU) in LOral SA v eBay International AG (Case C 324/09) [2012] Bus LR 1369 and UPC Telekabel Wien GmbH v Constantin Film Verleigh GmbH (Case C 314/12) [2014] Bus LR 541 [28 29]. The Supreme Court disagrees. First, the recitals refer the terms of an injunction against an intermediary to national law, without any further guidance [30(1)]. Second, the quid pro quo argument assumes what it seeks to prove: the Directives do not deal at all with the costs of complying with an injunction against an intermediary, so there is nothing from which such an inference could be drawn [30(2)]. Third, the rationale of the immunities, as explained in the recitals, is that disparities between national laws on liability can distort the functioning of the single market, and that the intermediaries have little or no control over content. It has nothing to do with the incidence of compliance costs when an injunction is granted [30(3)]. Fourth, the CJEU authorities say nothing about the incidence of compliance costs but only that, so far as they are to be borne by the intermediary, they must not be excessive [30(4), (5)]. The incidence of compliance costs is a matter for English law, within the broad limits set by the EU principles of effectiveness and equivalence, and the requirement that any remedy should be fair proportionate and not unnecessarily costly. In English law, the incidence of costs generally depends on the legal distribution of risk as found by the court. An innocent intermediary is ordinarily entitled to be indemnified by the rights holder against the costs of complying with a website blocking order. That is no different in principle from the established position in domestic law in the case of other orders granted to require an innocent party to assist the claimant against a wrongdoer. An ISP serving as a mere conduit would not incur liability for trade mark infringement under English law even in the absence of the safe harbour provisions. There is no legal basis for requiring a party to shoulder the burden of remedying an injustice if he has no legal responsibility and is acting under the compulsion of an order of the court [31 33]. It has sometimes been suggested that because ISPs benefit financially from the volume and appeal of the content available on the internet, including content which infringes intellectual property rights, it is fair to make them contribute to the cost of enforcement. That assumes a degree of responsibility on the part of the intermediary which does not correspond to any legal standard. The law is not generally concerned with moral or commercial responsibilities except as an arguable basis for legal ones. Even if a moral or commercial responsibility were relevant, it would be hard to discern one in a case like this. Website blocking injunctions are sought by rights holders in their own commercial interest. There is no reason why the rights holder should be entitled to look for a contribution to the cost of defending his rights from anyone other than the infringers [34 35]. It follows that in principle the rights holders should indemnify the ISPs for the compliance costs, subject to the limits on relief set by EU law. There is no reason to believe that such an indemnity, which must be limited to reasonable costs, would exceed those limits. The costs are not excessive, disproportionate or such as to impair the respondents ability to enforce their rights. Critically, the intermediary in this case is legally innocent. Different considerations may apply to those engaging in caching or hosting, which involve greater participation in the infringement and which are more likely to infringe national intellectual property laws if safe harbour immunity is unavailable [36 37]. As to the costs of the litigation, the judge awarded them against the ISPs because, unusually, they had made the litigation a test case and had strenuously resisted the application. He was plainly entitled to do so [38].

Aspect Contracts (Asbestos) Limited (Aspect) contracted with Higgins Construction Plc (Higgins) to survey and report on a block of maisonettes which Higgins was considering redeveloping. Aspects report was dated 27 April 2004. During the redevelopment in 2005, Higgins discovered asbestos not identified in Aspects report and a dispute arose between the parties [1 2]. The contract contained an implied term (under sections 108 and 114 of the Housing Grants, Construction and Regeneration Act 1996, read with The Scheme for Construction Contracts (England and Wales) Regulations 1998 (SI 1998 No 649)) enabling disputes to be referred to adjudication [1]. Higgins referred the dispute to adjudication and claimed 822,482 plus interest for breach of Aspects contractual and/or tortious duties to exercise reasonable skill and care in carrying out the survey. On 20 July 2009, the adjudicator found that Aspect had been in breach of such duties and awarded Higgins 490,627 plus interest. Aspect duly paid Higgins 658,017 on 6 August 2009 [3]. It was also an implied term of the contract, under sections 108(3) of the 1996 Act and paragraph 23(2) of the 1998 Regulations, that the decision of the adjudicator is binding until the dispute is finally determined by legal proceedings, by arbitration or by agreement. The parties did not agree to treat the adjudicators decision as final. Higgins did not commence any proceedings to recover the 331,855 balance of its claims. The limitation period for any such claim by Higgins expired in contract on or about 27 April 2010, and in tort by early 2011 [4]. On 3 April 2012 Aspect issued proceedings to recover the sum it had paid to Higgins, claiming that no payment had been due to Higgins on the merits of the original dispute. Higgins then sought to counterclaim the 331,855 balance of its original claims. Aspect responded that any such counterclaim became time barred after six years in 2010 or latest 2011. The High Court (Akenhead J) rejected Aspects claim on the basis that there was no implied term for repayment and no entitlement to restitution after the expiry in 2010 or 2011 of a six year limitation period during which Aspect could have claimed a declaration of non liability with consequential relief. The Court of Appeal allowed Aspects appeal on the basis that the contract contained an implied term for repayment by Higgins of any sum paid by Aspect which Aspect could show had not been due on the merits, and that this attracted a six year limitation period running from the date of Aspects payment. The alternative restitutionary basis was not pursued by Aspect in the Court of Appeal. Both courts held Higgins counterclaim for 331,855 to be time barred. Permission having been granted to Higgins to appeal to the Supreme Court, the Supreme Court invited submissions on restitution as well as on the implied term. The Supreme Court unanimously dismisses Higgins appeal in a judgment given by Lord Mance. The Court concludes that: (1) Adjudication is intended to be a speedy provisional measure, pending final determination. The decision of an adjudicator is binding from the time it is given, but lasts only until the dispute is finally determined by one of the ways identified in paragraph 23(2) of 1998 the Regulations or section 108 of the 1996 Act [14 15]. (2) Higgins argument that Aspects only claim was for declaratory relief and consequential orders and that such relief is time barred in the same way as Higgins own counterclaim is misconceived. Consequential orders cannot be made for the repayment of money to which there is no independent basis for claiming [19 20]. (3) Aspect has an independent basis for having the original dispute finally determined, and for repayment, arising on an implied contractual or restitutionary basis. That right arises upon and from Aspects payment [16 17]. It was an implied contractual term that Aspect, having made payment as ordered by the adjudicator, would have a directly enforceable right to recover such payment if, on a final determination on the merits of the original dispute, those sums were shown not to have been due to Higgins [23]. Repayment can also be claimed by way of restitution, it being retrospectively established by final determination that the sums paid pursuant to the adjudication amounted to an overpayment [24]. (4) The limitation periods for Aspects claims in contract and restitution are six years from the date of payment [21 22] and [25]. Aspect can require repayment by reference to a determination of the parties original rights and liabilities as they stood when they were adjudicated upon. (5) Higgins on the other hand is time barred from pursuing its counterclaim for the balance of its original claim. This is the consequence of Higgins own decision not to commence legal proceedings to have the dispute finally determined within the limitation periods applicable to its claims [26 29 and 33]. (6) The Court of Appeals obiter observations in Walker Construction Ltd v Quayside Homes Ltd [2014] EWCA Civ 93, approving Akenhead Js decision in the present case, were wrong [34].

The appellant is a Sri Lankan national who arrived in the UK in January 2005 aged 28. He was given leave to enter as a student and his leave to remain was extended to 30 September 2008. His application for an extension was refused. He claimed asylum on 5 January 2009 on the grounds that he had been a member of the Liberation Tigers of Tamil Eelan (LTTE) and had been detained and tortured by Sri Lankan security forces. He contended that on return he was likely to suffer similar ill treatment. The issue is whether he is a person eligible for subsidiary protection under the EU Council Directive 2004/83/EC (the Qualification Directive). He is such a person if there are substantial grounds for believing that upon return to Sri Lanka he will face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail himself or herself the protection of that country (article 2(e)). Serious harm in this case means, under article 15(b), torture or inhuman or degrading treatment or punishment. On 23 February 2009 the Secretary of State for the Home Department refused his application for asylum on the basis that he would not be at risk of further ill treatment despite his membership of LTTE. The applicant appealed. The Upper Tribunal (UT) had evidence from a psychiatrist that he was suffering severe post traumatic stress disorder and severe depression and showed a high degree of suicidality. The UT accepted that the appellant had a genuine fear of return to Sri Lanka. It accepted that the mental health provision in Sri Lanka was insufficient. But it did not accept that he was of any continuing interest to the authorities in Sri Lanka. Therefore the UT rejected his appeal under the Qualification Directive. In the Court of Appeal, Maurice Kay LJ rejected his appeal on the basis that the alleged future harm would emanate not from the intentional acts or omissions of public authorities or non state bodies, but instead from a naturally occurring illness and the lack of sufficient resources to deal with it in the receiving country (paragraph 43). The Appellant appealed to the Supreme Court on the grounds that this is too narrow a view of the scope of the Qualification Directive and that his mental illness should not be regarded as naturally occurring because it was caused at the hands of the Sri Lankan authorities. He argued it makes no difference to his entitlement to such protection that there is no longer a risk of repetition of the ill treatment which is the cause of his current state of health. None of the authorities from the Court of Justice of the European Union or the European Court of Human Rights are precisely on point [13]. Therefore the following question will be referred to the Court of Justice of the European Union: Does article 2(e), read with article 15(b), of the Qualification Directive cover a real risk of serious harm to the physical or psychological health of the applicant if returned to the country of origin, resulting from previous torture or inhuman or degrading treatment for which the country of origin was responsible?

This appeal concerns the limits of a local authoritys powers and duties to provide accommodation for children in need under section 20 of the Children Act 1989 (CA). The appellants are the parents of eight children, at the relevant time aged 14, 12, 11, 9, 7, 5, 2 and 8 months. On 5 July 2007 their 12 year old son was caught shoplifting. He told the police that he had no money for lunch and that his father had hit him with a belt. The police visited the familys home and found it in an unhygienic and dangerous state unfit for habitation by children. The police exercised their powers under s 46 CA to remove the children to suitable accommodation for a maximum of 72 hours. The children were provided with foster placements by the respondent local authority (the Council). The appellants were arrested and interviewed by the police, then released on police bail on condition that they could not have unsupervised contact with any of their children. The appellants were asked to sign a Safeguarding Agreement by the Council on 6 July 2007 by which they agreed that all the children would remain in their foster placements for the present time. They were not informed of their right, under s 20(7) CA to object to the childrens continued accommodation after the expiry of 72 hours, nor of their right, under s 20(8), to remove them at any time. On 13 July, solicitors instructed on their behalf gave formal notice of the appellants intention to withdraw consent. On 16 July the Council decided that the children should be returned home as soon as possible. However, it took until 6 September for the Council to arrange with the police for the bail conditions to be varied, whereupon the children returned home on 11 September 2007. Criminal proceedings against the appellants were later discontinued. In July 2013 the appellants issued proceedings claiming damages, amongst other things, for breach of their rights under article 8 of the European Convention on Human Rights. The High Court dismissed all the claims except for the article 8 claim, which was upheld on the basis that, because the parents had not given their informed consent, there had been no lawful basis for the accommodation of the children after 72 hours, so that the interference with family life was not in accordance with the law. The judge awarded each of the appellants damages of 10,000. The Court of Appeal allowed the Councils appeal, holding that consent was not required and that there had been a lawful basis for the childrens accommodation under s 20 CA, and the interference with their article 8 rights had been proportionate. The Supreme Court unanimously dismisses the appeal. It holds that the appellants did not object or unequivocally request the immediate return of the children, so there had been a lawful basis for the childrens continued accommodation under s 20 CA. Lady Hale gives the only substantive judgment. Local authorities in England look after a substantial number of children (over 70,000 in March 2017), either as part of a range of services provided for children in need, or under powers to intervene compulsorily to protect children from harm. Compulsory intervention by a local authority requires the sanction of a court process. No court order is required for the authority to provide accommodation for children in need under s 20 CA. However, it is subject to the right under s 20(7) for a person with parental responsibility for the child, who is willing and able to provide accommodation for him or arrange for accommodation for him, to object, and to the provision in s 20(8) that any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section [1 2]. In short, it is a voluntary service. If a parent delegates the exercise of his or her parental responsibility for a child to the local authority under s 20 CA, such delegation must be real and voluntary. The best way to ensure this is to inform the parent fully of their rights under s 20, although delegation can be real and voluntary without being informed [39]. No such delegation is required where the local authority steps into the breach to exercise its powers under s 20 where there is no one with parental responsibility for the child, the child is lost or abandoned, or the parent is not offering to look after the child. In those circumstances active delegation is not required [40]. If a parent with unrestricted parental responsibility objects at any time pursuant to s 20(7), the local authority may not accommodate the child under s 20, regardless of the suitability of the parent or of the accommodation which the parent wishes to arrange [42 43, 47]. It is not a breach of s 20 to keep a child in accommodation for a long period but a local authority must also think of the longer term and consider initiating care proceedings in order to fulfil its other duties under the CA, and to avoid breaches of the childs or the parents rights under article 8 [49 52]. In the present case, where the s 20 arrangements replaced the compulsory police protection under s 46 without the children returning home in the meantime, the focus was not on the appellants delegation of parental responsibility to the Council, but on their rights under subsections 20(7) and 20(8) [53]. Entering into a safeguarding agreement was a matter of good practice, although it was important that it did not give the impression that the parents had no right to object or to remove the children [55]. The lawfulness of the s 20 accommodation depended on whether the appellants actions amounted to an unequivocal request for the children to be returned. The bail conditions were not an insuperable impediment to the request and were not a reason to refuse [57]. However, the letters from the appellants solicitors could not be read as an objection or as a request for immediate return: the solicitors were sensibly trying to achieve the return of the children as quickly as possible on a collaborative basis rather than push the Council into issuing care proceedings [59]. Although the Council could have provided earlier support for an application to lift the bail conditions, it was not possible to say what effect this would have had, given the independent concerns of the police [60]. Accordingly, there was a lawful basis for the childrens continued accommodation under s 20 and the ground relied on by the judge for finding a breach of the appellants article 8 rights was not made out [61]. The question of whether the Councils actions were a proportionate interference with the right to respect for family life throughout the time the children were accommodated was not fully explored in the lower courts and was not raised as an issue before the Supreme Court [62]. The appeal is therefore dismissed, albeit for reasons which differ from those of the Court of Appeal [63].

Mr Lex Warner chartered a motor vessel operated by Scapa Flow Charters (SFC) for the week of 11 18 August 2012. On 14 August 2012, when dressed in diving gear while preparing to dive on a wreck northwest of the Cape Wrath, Mr Warner fell onto the deck of the vessel. He was helped to his feet and went ahead with the dive to a depth of 88 metres. He got into trouble during the dive and, despite the assistance of other divers who brought him back to the surface of the water and onto the motor vessel, he could not be revived and was pronounced dead. Mr Warners widow, Debbie Warner, raised an action against SFC in which she alleged that her husbands death was the result of SFCs negligence. She sought damages both as an individual and as a guardian of their young son, who had been born in November 2011. SFC lodged a defence that the action was time barred under the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (the Athens Convention), which, in the case of a death occurring during carriage, imposes a time bar of two years from the date on which the passenger would have disembarked. The parties agree that Mr Warner would have disembarked no later than 18 August 2012. However, the Athens Convention also provides that the law of the court seized of the case in this case, Scots law governs the grounds of suspension and interruption of limitation periods, but in no case can an action be brought after the expiration of a period of three years from the date on which the passenger would have disembarked: article 16(3). SFC contended that the Scots law of limitation enacted in section 18 of the Prescription and Limitation (Scotland) Act 1973 (the 1973 Act) does not contain such grounds of suspension and interruption as to extend the limitation period. It argued that section 18 of the 1973 Act postpones the start of the limitation period instead of interrupting or suspending it as the Athens Convention envisages. The Lord Ordinary upheld the time bar defence and dismissed the action. Mrs Warner appealed by reclaiming motion to the Inner House. The Inner House upheld the Lord Ordinarys opinion in relation to her claim as an individual but reversed his order in relation to her claim on behalf of her son, finding that her claim as guardian of her son was not time barred. SFC appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Hodge gives the sole judgment with which the other Justices agree. In interpreting an international convention, national courts must look at the objective meaning of the words used and the purpose of the convention as a whole [14]. Courts in the UK have adopted an approach to interpretation which respects the international character of such a document: the interpretation should not be rigidly controlled by domestic precedents of antecedent date, but rather the language should be construed on broad principles of general acceptation [15]. In carrying out this task, the courts can use as aids to interpretation the travaux prparatoires, the case law of foreign courts on the convention and the writing of jurists, but in respect of the Athens Convention, such aids do not provide assistance [17 18]. Therefore, the Supreme Court relies on the broad, generally accepted principles of interpretation [19]. The Court does not accept that the words suspension and interruption should have a technical meaning derived from certain civil law systems for the following three reasons [20]. Firstly, it is not appropriate to look to the domestic law of certain civil law systems for a technical meaning of the words in an international convention which was designed to operate in many common law systems as well [21]. Secondly, even within civil law systems and mixed legal systems, there was no uniformity in the use of the expression suspension when the Athens Convention was adopted [22]. Thirdly, an interpretation of article 16(3) of the Athens Convention as excluding domestic rules which have the effect of postponing the start of a limitation period would give rise to serious anomalies [28]. The Court therefore holds that the words the grounds of suspension of limitation periods are sufficiently wide to cover domestic rules which postpone the start of a limitation period as well as those which stop the clock after the limitation period has begun [30]. Second, the Court does not accept that the natural meaning of the words grounds of suspension and interruption of limitation periods is limited to grounds which give rise to a break in a period or course of events which is already in train. For instance, the dictionary definition of suspension referred to by SFC included postponement as one of its meanings, and suspension in the context of prescription or limitation has a broader meaning in several legal systems [32]. The Court also holds that it was unnecessary for the grounds of limitation in a domestic limitation regime to be framed to extend beyond their domestic scope so as to cover limitation periods in conventions such as the Athens Convention [33]. Therefore, the existence of a ground in a domestic limitation statute which suspends the limitation periods set out in that statute is sufficient to bring article 16(3) of the Athens Convention into operation and extend the time bar by one year [33]. The Court then considers whether section 18 of the 1973 Act does in fact extend the time bar in respect of Mrs Warners claim as guardian. Firstly, the Court observes that the 1973 Act does not postpone the start of the limitation period. Rather, section 18 of the 1973 Act postpones the expiry date of the limitation period: it instructs a court to disregard the time during which the pursuer of the action is under legal disability [37]. In any event, the Court does not accept that postponement of the start of a limitation period falls outside an international understanding of a suspension of limitation periods [37]. Secondly, the legal disability recognised by section 18 of the 1973 Act has the effect of suspending the running of time on the limitation period under the Athens Convention [38]. Thirdly, that suspension is subject to the long stop of three years, as set out in article 16(3) of the Athens Convention. The Court therefore concludes that Mrs Warners claim as her sons guardian is not time barred by the Athens Convention [40]. The Court dismisses the appeal [41].

In 2006, AIB Group (UK) plc (the Bank) agreed to lend Mr and Mrs Sondhi 3.3m to be secured by a first legal charge over their home, valued at 4.25m. This was on the condition that the existing first legal charge in favour of Barclays Bank plc (Barclays) (borrowings on Barclays accounts amounting to 1.5m) was to be redeemed on or before completion of the Banks mortgage advance. Mark Redler & Co Solicitors (the Solicitors), also acting for Mr and Mrs Sondhi, were instructed on this basis and retained to act on the Banks behalf. Having requested the Bank to forward the funds because completion was imminent, the Solicitors: (i) remitted to Barclays an amount they thought was the total necessary to redeem the Barclays mortgage; and (ii) remitted the balance of the 3.3m less expenses to Mr and Mrs Sondhi. In fact, the Solicitors mistakenly remitted to Barclays an amount which was approximately 300,000 less than was necessary to redeem the Barclays mortgage. As a result, the Bank did not obtain a fully enforceable first charge over the property. When the Bank found out about this, there were negotiations between the Bank and Barclays. As a consequence, the Bank executed a deed of postponement acknowledging the primacy of Barclays charge and Barclays consented to the registration of the Banks charge as a second charge. Subsequently, Mr and Mrs Sondhi defaulted and their property was repossessed and sold by Barclays in February 2011 for 1.2m. The Bank received 867,697, approximately 300,000 less than it should have done if the Solicitors had remitted the correct amount to Barclays. The Bank brought proceedings against the Solicitors claiming, amongst other things, breach of trust. In terms of relief, the Bank argued that it was entitled to recover the full amount of its loan less the 867,697 recovered (approximately 2.5m). HHJ Cooke, at first instance, found that although the Solicitors had acted in breach of trust, the Bank could only recover the amount the Solicitors in fact paid to Mr and Mrs Sondhi but which should have been paid to Barclays (approximately 300,000). The Court of Appeal agreed with HHJ Cookes decision on the relief to which the Bank was entitled. In doing so, it applied what it understood to be the reasoning of Target Holdings Ltd v Redferns [1996] AC 412 (Target Holdings) in relation to equitable principles of compensation. The Supreme Court unanimously dismisses the appeal. Lord Toulson finds that the Bank is only entitled to the amount by which it suffered loss (approx. 300,000). Lord Reed writes a separate judgment coming to the same conclusion and with reasons which are substantially the same. Lord Neuberger, Lady Hale and Lord Wilson agree with both Lord Toulson and Lord Reed. Having considered the House of Lords judgment in Target Holdings [21] [36], Lord Toulson finds that it would be a backward step to depart from, or re interpret, Lord Browne Wilkinsons fundamental analysis of the principles of equitable compensation in that case [63]. A monetary award which reflects neither loss caused nor profit gained by the wrongdoer, such as the one argued for by the Bank, would be penal [64]. Moreover, to argue that the Bank has suffered a loss of 2.5m in this case is to adopt an artificial and unrealistic view of the facts [65]. Rather, one must look at the rationale of the monetary remedy for breach of trust; given that the beneficiary of a trust is entitled to have it properly administered, he is entitled to recover losses suffered by reason of the breach of duty [66]. Here, that loss was approximately 300,000 of the Banks loan which it failed to obtain security over. In Target Holdings, Lord Browne Wilkinson stated that, [u]ntil the underlying commercial transaction has been completed, the solicitors can be required to restore the client account monies wrongly paid away [72]. In the current case, although the Solicitors did not complete the transaction in the manner in which it was required, the transaction was, nevertheless, completed as a commercial matter when the loan monies were released to Mr and Mrs Sondhi [74]. The fact that the Solicitors may also have breached the Solicitors Accounts Rules does not affect the analysis [75]. Lord Reed undertakes a broader analysis of the relationship between equitable compensation and common law damages. He considers, first, the Canadian Supreme Court case of Canson Enterprises Ltd v Boughton & Co (1991) 85 DLR (4th) 129 (Canson Enterprises), focusing mainly on the judgment of McLachlin J [80] [89]. Lord Reed then considers Target Holdings [96] [116]. In that case, Lord Browne Wilkinson did not intend to say that equitable compensation is to be assessed in the same way as common law damages [115]. He was not departing from the orthodox view that where a breach of trust occurs, an equitable obligation arises to restore the trust fund to the position it would have been in but for the breach and that the measure of compensation should be assessed on that basis [116]. A number of common law jurisdictions have subsequently followed the general approach of McLachlin J in Canson Enterprises and Lord Browne Wilkinson in Target Holdings [121] [133]. This is that where trust property has been misapplied, the doctrine of equitable compensation requires the trustee to restore the trust fund, or to pay the beneficiary where the trust has ended, to the position it would have been in if the trustee had performed his obligation [134]. Despite structural similarities when assessing equitable compensation and common law damages, liability of a trustee for breach of trust is not generally the same as liability in damages for tort or breach of contract [136]. The nature of the obligation breached and the relationship between the parties affect the measure of compensation [137]. In the present case, the Banks argument is based on three fallacies: (i) it assumes that the Solicitors misapplied the entire 3.3m as opposed to approximately 300,000 (however, the Court of Appeals decision to the contrary was not challenged before the Supreme Court); (ii) it assumes that the measure of the Solicitors liability was fixed at the date of the breach of trust; and, (iii) it assumes that liability does not depend on a causal link between breach of trust and loss. (ii) and (iii) were rightly rejected in Target Holdings [140]. The Bank should recover its loss, which was approximately 300,000 [141].

The respondent (the claimant) sued the appellants (the defendants) for libel in respect of an article which they published about him in Nowy Czas, a newspaper addressing issues of interest to the Polish community in the UK. The Court of Appeal found that the conduct of the trial by Mr Justice Jay (the judge) in the High Court had been unfair towards the claimant. The defendants appeal against that finding. They also challenge the Court of Appeals analysis of the effect of section 4 of the Defamation Act 2013 (the Act), which sets out the public interest defence to a defamation claim. The claimant was born in Poland but has lived in England since 1984. In about 1989 he joined POSK, a Polish social and cultural association and charity. He became joint manager of The Jazz Caf, a bar and caf at POSKs Hammersmith premises. He also worked at Kolbe House, a charity which runs a care home in Ealing. The article was published in October 2015. The claimant asserted that it had 13 separate defamatory meanings, including that he had abused his position at POSK to award himself or his company contracts for maintenance work there; had dishonestly obtained unlawful and fraudulent profit from sales at The Jazz Caf (this meaning is referred to as M4); and had diverted to himself funds needed for the care of Kolbe Houses residents by securing for himself a contract for unnecessary renovations. The claimant represented himself at the hearing before the judge. The judge found that all the articles meanings other than the five relating to Kolbe House were substantially true or, in one instance, had caused no serious harm to the claimants reputation. But he found that in relation to all 13 meanings the defendants had established a defence to the claim under section 4 of the Act: for, in his opinion, each of them was on a matter of public interest, and it was reasonable for the defendants to have believed that publishing them was in the public interest. So the judge dismissed the claim. The Court of Appeal allowed the claimants appeal. It held that the judge had been wrong to uphold the defence under section 4; that he had not been entitled to find that M4, which it described as the most serious of the allegations, was substantially true; and that the claimant was entitled to damages in respect of M4 and the meanings relating to Kolbe House. Lastly, after reviewing transcripts of the hearing, it held that the nature, tenor and frequency of the judges interventions were such as to render [the trial] unfair. It ordered that the quantification of damages be remitted to a judge other than Mr Justice Jay but did not order a full retrial. The defendants now appeal to the Supreme Court. The Supreme Court unanimously dismisses the appeal. But, in place of the Court of Appeals order that only the assessment of damages be remitted, the Court orders that the case be remitted for a full retrial. Lord Wilson gives the only judgment, with which the other Justices agree. Unfair trial The Court of Appeal was correct to treat the claimants allegation as being that the trial had been unfair, not that the judge had given the appearance of bias against him. For it is far from clear that an informed and fair minded observer would consider that the judge had given that appearance [39]. The authorities on an inquiry into the unfairness of a trial establish the following principles: a judges interventions should be as infrequent as possible during cross examination of witnesses, and he must remain above the fray and neutral while evidence is being elicited; the quality of the written judgment cannot render a trial fair in circumstances where the judges interventions at the hearing prejudiced the exploration of evidence; and where a transcript exists, it is not the present practice of higher courts to invite the judge to comment on the allegations, but the fact that he is unable to comment requires those courts to analyse the evidence with great care [40 45]. Unrepresented litigants are unlikely to be equipped to withstand judicial pressure and so the judge must temper his conduct accordingly [46]. The factual analysis of the conduct of the trial is set out in the schedule to Lord Wilsons judgment [47]. It is important to remember (among other things) that the excerpts from the transcript which are reproduced there were separated by long stretches of evidence in respect of which no criticism of the judge can be made. But the transcripts do nevertheless show that the judge directed a barrage of hostility towards the claimants case and towards the claimant himself acting in person. In doing so the judge used immoderate, ill tempered and at times offensive language. The Court is driven to uphold the Court of Appeals conclusion that the judge did not allow the claim to be properly presented; that therefore he could not fairly appraise it; and that the trial was unfair. Instead of making allowance for the claimants being unrepresented, the judge harassed and intimidated him [48]. The logical consequence of a conclusion that a trial was unfair is an order for a complete retrial. So it is hard to understand the Court of Appeals order that all the issues relating to the determination of whether the defendants were liable to the claimant had been concluded. Conscious that the justice system has failed both sides, the Court, with deep regret, must order a full retrial [49]. Public interest defence The House of Lords decision in Reynolds v Times Newspapers Ltd [2001] 2 AC 127 established the existence at common law of a specific defence to a claim for defamation brought in relation to publication of a statement on a matter of public interest. Where the defamatory material concerned such a matter, the defendant had to show that it had met the standard of responsible journalism, measured by reference to a list of ten factors [53 56]. Section 4 of the Act replaced the Reynolds defence with a new defence which, on any view, draws on the principles in Reynolds and later cases [58, 68 69]. The section 4 defence is available where the defendant reasonably believed that publishing the statement complained of was in the public interest (s.4(1)(b)) [52, 62]. In assessing reasonableness, the Court must (among other things) have regard to all the circumstances of the case (s.4(2)) [52, 65]. factors was deliberately omitted from the section [62, 69]. The Court of Appeal was wrong to state that the Reynolds defence and the section 4 defence are not materially different: for the elements of the two cannot be equated [68, 72]. It was also inappropriate for the Court of Appeal to regard the Reynolds factors as a check list in the context of section 4 [69, 77]. For these and other reasons, the new judge should determine whether the public interest defence is available to the defendants without reference to the Court of Appeals reasoning on section 4 [78].

These appeals concern the circumstances in which a prisoner serving a life sentence or an indeterminate sentence of imprisonment for public protection (IPP), who has served the minimum period specified for the purposes of retribution and deterrence (the tariff), and whose further detention is justified only if it is necessary for the protection of the public, should be awarded damages for delay in reviewing the need for further detention following the expiry of the tariff. They are also concerned with the quantum of such damages. Since 1997, legislation has required judges to impose life sentences on a wider range of offenders than was previously the case. In addition, IPPs were introduced in April 2005. It is for the Parole Board of England and Wales (the Board) to decide whether to direct the release of a life or IPP prisoner whose tariff has expired. The prisoners case must first be referred to the Board by the Secretary of State for Justice (the Secretary of State). The increase in the number of life prisoners and the introduction of IPP sentences resulted in an increase in the Boards workload, but its resources were not increased. This resulted in delay in the consideration of post tariff prisoners cases. That delay has implications under the Human Rights Act 1998 (the 1998 Act), which gives effect to Article 5 of the European Convention on Human Rights (the Convention). Article 5(1) requires that detention must throughout its duration remain causally connected to the objectives of the sentencing court. In relation to post tariff prisoners, that objective is the protection of the public. In order to comply with Article 5(4), the Board has to review the necessity for the continued detention of post tariff prisoners speedily upon the expiry of their tariff and at reasonable intervals thereafter. The 1998 Act also provides that the remedies for a violation of a Convention right include damages. Mr Faulkner was sentenced in 2001 to life imprisonment for a second offence involving grievous bodily harm. Mr Sturnham was convicted of manslaughter in 2007 and given an IPP sentence. In each case, there was a delay in the holding of a hearing before the Board after the tariff had expired, due to administrative errors for which the Secretary of State was responsible. Both men were eventually released following Board hearings, but Mr Faulkner was twice recalled to prison in respect of allegations of which he was acquitted, and remains in custody. Each sought judicial review of the failure by the Board and the Secretary of State to conduct a review of his detention speedily, as required by Article 5(4). Mr Faulkner was unsuccessful in the High Court, but the Court of Appeal held that the Secretary of State had breached Article 5(4), that Mr Faulkner would have been released 10 months earlier than he was but for that breach, and that the Secretary of State should therefore pay him 10,000 in damages. In Mr Sturnhams case, the High Court held that there had been a breach of Article 5(4) due to a delay of 6 months, that he had been caused anxiety and distress by the delay, but that there was no prospect that he would have been released any earlier had the hearing taken place speedily. The Secretary of State was ordered to pay him 300, but that award was quashed by the Court of Appeal. In Mr Faulkners case, the Board appeals to the Supreme Court on the ground that the award of damages was excessive. Mr Faulkner cross appeals on the ground that the award was inadequate and that his imprisonment during the period of delay constituted false imprisonment at common law or a violation of Article 5(1). Mr Sturnham seeks permission to appeal against the Court of Appeals decision to quash the award of damages to him. The Supreme Court allows the Boards appeal in Mr Faulkners case, reduces the damages awarded to him to 6,500, and dismisses his cross appeal. The Court grants Mr Sturnham permission to appeal and allows his appeal. Lord Reed gives the lead judgment, with which Lord Neuberger, Lord Mance and Lord Kerr agree. Lord Carnwath delivers a concurring judgment. Mr Faulkners argument that the detention of a life prisoner constitutes false imprisonment if it continues beyond the point at which the prisoner would have been released if a hearing had been held in accordance with Article 5(4) must be rejected. That detention is still authorised by statute, and is therefore lawful until the Board directs release [16, 86]. Nor was Mr Faulkner the victim of a violation of Article 5(1). Such a violation requires exceptional circumstances warranting the conclusion that continued detention has become arbitrary, which were not present in Mr Faulkners case [17 23, 86]. On the question of the award of damages under the 1998 Act, the courts should be guided primarily by the principles applied by the ECtHR, which may be inferred from any clear and consistent practice of that court. The quantum of such awards should broadly reflect the level of awards made by the ECtHR in comparable cases brought by applicants from the UK or other countries with a similar cost of living [39]. The courts should resolve disputed issues of fact in the usual way even if the ECtHR in similar circumstances, due to the nature of its role, would not do so [39, 82]. Where it is established on the balance of probabilities that a violation of Article 5(4) has prolonged the detention of a prisoner past the point at which he would otherwise have been released, damages should ordinarily be awarded. The amount of such damages will be a matter of judgment, reflecting the facts of the case and having regard to guidance from the ECtHR and the national courts in comparable cases [75]. Pecuniary losses should be compensated in full [53, 70]. Though relevant in some circumstances, it will not ordinarily be appropriate to take into account as a mitigating factor that a claimant was recalled to prison following his eventual release [83]. Nor should damages be awarded merely for the loss of a chance of earlier release [82], or adjusted according to the degree of probability of release if the violation of Article 5(4) had not occurred [84]. Appellate courts do not ordinarily interfere with an award of damages simply because they would have awarded a different figure if they had tried the case. However, as the Court is in this case being asked to give guidance on the appropriate level of awards, and having regard to awards made by the ECtHR in other cases and to the fact that the liberty enjoyed by a person released on licence is precarious and conditional, the Court considers that an award of 6500 would adequately compensate Mr Faulkner [87]. Even where it is not established that an earlier hearing would have resulted in earlier release, there is a strong presumption that delay which violated Article 5(4) has caused the prisoner frustration and anxiety. Where such a presumption is not rebutted, an award of damages should be made, though on a modest scale [53, 67 68]. No such award should be made in cases where the frustration and anxiety were insufficiently severe to warrant an award, although that is unlikely to be the case where the delay was of around three months or more [66]. Following that approach, and having regard to ECtHR authorities, the award of 300 to Mr Sturnham was reasonable in his case [97]. Lord Carnwath concurs with the reasoning and conclusions in Lord Reeds judgment, but suggests a more selective approach to ECtHR authorities. He suggests focusing on those cases which explicitly decide points of principle, and eschewing those which are simply assessments of the facts [104 127].

The appellants, all Algerian nationals, were suspected terrorists whom the Secretary of State proposed to deport to Algeria. It was common ground that Algeria was a country where torture was systematically practised by state officials and no state official had ever been prosecuted for it. The Secretary of State obtained assurances from the Algerian Government that the appellants rights not to be tortured or subjected to other ill treatment would be respected on return to Algeria. The Special Immigration Appeals Commission Act 1997 established an appeal system which allows where necessary for closed material procedures and the appointment of special advocates. If the Secretary of State wishes to adduce evidence which, for reasons of national security or other sufficient public interest reasons, cannot safely be communicated to the other party, SIACs rules and procedures provide for this to be done. In this case, however, it was one of the appellants who wished to adduce evidence from a witness (W), who had inside knowledge of the position in Algeria and asserted that, notwithstanding the Algerian Governments official assurances, those in the appellants positions were in fact likely to be subjected on return to torture or other ill treatment. W was prepared to give evidence in the appellants appeals to SIAC only on one unalterable condition: that his identity and evidence would by order remain absolutely and irrevocably confidential to SIAC and the parties to the appeals. W was concerned that the Secretary of State might otherwise seek to communicate his evidence to the Algerian authorities, if only to assess its veracity and reliability, and that her doing so would place him and/or his family in peril. The Secretary of State had two main objections to such an order being made. First, she would be unable to participate effectively in the conduct of the appeals before SIAC, being unable to test either the validity of the reasons asserted by W in support of his claimed need for confidentiality or the substance of Ws evidence itself. Secondly, the Secretary of State may find herself in possession of information pointing to the existence of a terrorist threat abroad or some other risk to national security, yet, bound by SIACs order, unable to alert the foreign state to the risk. This could gravely imperil future diplomatic relations with foreign states. The question in the appeals therefore was whether it was open to SIAC to make an order for an absolute and irreversible guarantee of total confidentiality in respect of Ws identity and evidence before the same were disclosed to the Secretary of State (in circumstances where it would nevertheless remain open to the Secretary of State to challenge the admissibility or weight of that evidence before SIAC in its determination of the substantive appeals). The Supreme Court unanimously allows the appeals. Lord Brown gives the leading judgment of the Court; Lord Dyson gives a concurring judgment. The fundamental objection of the Secretary of State to the proposed order, based on her concerns about being obliged to withhold vital information relating to national security from a foreign state, thereby imperilling future diplomatic relations, is unpersuasive [11] [13]. It must surely be a substantial defence to any diplomatic complaint by a foreign state that the Secretary of State is subject to a final and absolute court order prohibiting her from acting differently [14]. A number of recent international instruments are replete with statements urging states to ensure that witnesses are protected against ill treatment or intimidation, particularly in a human rights context [15]. The imperative need here is to maximise SIACs chances of arriving at the correct decision on the issue before them concerning the safety of the appellants on return to Algeria and, therefore, for SIAC to obtain all such evidence as may contribute to this task [18]. Accordingly, it is open to SIAC to make absolute and irreversible ex parte orders of the kind sought in this case and on occasion it may be appropriate to do so [19]. The power to make such orders should however be used most sparingly [19]. Before making one of the proposed ex parte orders, SIAC should require the very fullest disclosure from the applicant (A) of (a) the proposed evidence from As proposed witness (W), (b) the particular circumstances in which W claims to fear reprisals, and (c) how A and his legal advisers came to hear about Ws proposed evidence and what if any steps they have taken to encourage W to give that evidence in the usual way subject to the usual steps generally taken to safeguard witnesses in such circumstances (e.g. anonymity orders and hearings in private) [20]. SIAC should only then, in the interests of justice, grant such an order if it (1) is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and (2) has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals if his identity and the evidence that he is willing to give were disclosed to the relevant foreign state [34]. Notwithstanding the absolute and irreversible nature of the order, it should in addition be open to the Secretary of State, upon such order being made, to try to persuade SIAC either to seek from A and W a sufficient waiver of the ex parte order forbidding any further communication of the information, or, if such waiver proves unobtainable, to exclude or regard with additional scepticism the evidence submitted [21]. The Court, in permitting the making of such ex parte orders in the circumstances of this case, has in no way been influenced by the circumstances in which the Secretary of State is on occasion entitled to adduce evidence in closed proceedings divulged only to a special advocate and not to A. The scope of the orders sought here should not be regarded as levelling the playing field between the parties: the Secretary of State in cases before SIAC acts in the wider public interest and not as an interested party [22]. The same considerations and the same result would follow if the case engaging as it does here the rights of the appellants under article 3 of the ECHR raised a question under article 2 of the same. However, if the ground on which an appellant is resisting deportation is an alleged risk of breach of some other article of the ECHR (e.g. article 8), the balance will almost certainly be struck the other way. In those circumstances it would be inappropriate to make an ex parte order to protect the confidentiality of a witness [38].

In July 2012 the Immigration Rules (the Rules) were amended to establish new entry requirements for non EEA applicants to join their spouses or civil partners in the United Kingdom. These included a minimum income requirement (MIR) of at least 18,600 per annum with additional sums for dependent children, to be satisfied by the sponsoring spouse or civil partner. In four appeals the appellants claim that the Rules themselves, and the Immigration Directorate Instruction on family migration giving guidance to entry clearance officers (the Instructions), are incompatible with the rights protected by the European Convention on Human Rights (ECHR), principally the right to family life in article 8, and unlawful under common law principles. One of the appellants is a child, and it is contended that the Rules fail to take account of the Secretary of States duty under section 55 of the Borders, Citizenship and Immigration Act 2009 (the s 55 duty) to have regard to the need to safeguard and promote the welfare of children when making decisions which affect them. The fifth appeal, brought by SS, is against the refusal of entry clearance because of a failure to meet the MIR on the facts of her case. The claims to strike down the Rules partly succeeded in the High Court, but this decision was reversed by the Court of Appeal. SS appealed successfully against the refusal to grant her entry clearance to the First tier Tribunal, which found that she and her husband would not be able to live together in the Democratic Republic of Congo, where she was a citizen, but from which he had been granted asylum in the UK. He could not meet the MIR but the refusal was found to be a breach of article 8. The Entry Clearance Officers appeal failed in the Upper Tribunal but was allowed by the Court of Appeal. The Supreme Court unanimously (i) allows SSs appeal, restoring the decision of the Upper Tribunal in her case, and (ii) allows the other four appeals to a limited extent. The court holds that the MIR is acceptable in principle but that the Rules and the Instructions unlawfully fail to take proper account of the s 55 duty. The Instructions also require amendment to allow consideration of alternative sources of funding when evaluating a claim under article 8. Lady Hale and Lord Carnwath give a joint judgment, with which all the other Justices agree. Challenge to the validity of the Rules under the Human Rights Act 1998 (HRA) The Secretary of State is bound by s 6 HRA to exercise her powers under the Immigration Act 1971 compatibly with the ECHR. In a challenge to the legality of the Rules as such, as well as to their application to individual cases, it is legitimate to follow the four stage proportionality test to decide whether the Secretary of State has struck a fair balance between the individual and public interests, taking into account the relevant factors identified by the European Court of Human Rights (ECtHR) and the significant weight to be given to the interests of children [52, 56]. The general provisions of the Rules envisage a two stage process, the second involving a fact sensitive consideration of any human rights issues outside the Rules. The duty of the tribunal hearing appeals against any adverse decision of the Secretary of State is to ensure that the ultimate disposal of the application is consistent with the ECHR. This means that there is no basis for challenging the new Rules as such under the HRA [58, 60]. The principle of an MIR The fact that the MIR may cause hardship to many does not render it unlawful [81]. It has the legitimate aim of ensuring that the couple do not have recourse to welfare benefits and have sufficient resources to play a full part in British life. The income threshold chosen was rationally connected to this aim [83] and the acceptability in principle of an MIR has been confirmed by the ECtHR [86]. Treatment of children The Rules assert that the Secretary of States s 55 duty has been taken into account but nothing in the relevant section gives direct effect to it [90]. The Instructions in their current form do not adequately fill the gap left by the Rules. They are defective and need to be amended in line with the principles established by the ECtHR. The s 55 duty stands on its own and it should be clear from the Rules themselves that it has been taken into account. In this respect the Supreme Court grants a declaration that the Rules and the Instructions are unlawful [92]. Treatment of alternative sources of funding There are restrictions in the Rules on taking into account the prospective earnings of the foreign spouse or partner or guarantees of third party support when deciding whether the MIR has been met. Although harsh, it is not irrational for the Secretary of State to give priority in the Rules to simplicity of operation and ease of verification [98]. Operation of the same restrictive approach outside the Rules is a different matter and inconsistent with the evaluative exercise required by article 8. A tribunal on an appeal can judge for itself the reliability of any alternative sources of finance and it makes little sense for decision makers at an earlier stage to be forced to take a narrower approach [98]. In this respect aspects of the Instructions require revision to ensure that decisions are taken consistent with the duties under the HRA. It will be a matter for the Secretary of State to decide if it is more efficient to revise the Rules themselves to achieve this [101]. Appeal by SS In the light of the crucial finding by the tribunal that there were insurmountable obstacles to the couple living together in DRC, any errors in the tribunals judgment did not after this long delay require the appeal to be remitted for rehearing. Applying the correct test, the extreme interference with family life would not be found to be justified on the facts of SSs case [106].

In 2002, Sir Christopher Hohn and Ms Jamie Cooper, who were then married, set up The Childrens Investment Fund Foundation (UK) (CIFF), a charitable company limited by guarantee, helping children in developing countries. CIFF has a board of trustees (directors), and members. Governance issues emerged when their marriage broke down. The parties agreed that Ms Cooper should resign as a member and trustee of CIFF, and that CIFF should make a grant (the Grant) of $360 million to Big Win Philanthropy (BWP), a new charity founded by Ms Cooper. Under the Companies Act 2006, section 217 and the Charities Act 2011, section 201, payments by a company in connection with the loss of office of a director (here Ms Cooper) must be approved by the members of the company and the Charity Commission. The Charity Commission authorised the trustees of CIFF to obtain the approval of the court. So, the trustees started proceedings in the name of CIFF and surrendered their discretion on the transaction to the court. As to s.217, the members of CIFF were Sir Christopher, Ms Cooper and Dr Lehtimki. Only Dr Lehtimki as the sole non conflicted member, would vote on the resolution (the resolution) to approve the Grant. Dr Lehtimki (a party to the trustees proceedings) did not surrender his discretion or make his voting intentions clear. The Chancellor of the High Court (Sir Geoffrey Vos) determined that he should exercise the trustees discretion by approving the Grant, which he held was in CIFFs best interests. He accepted that a reasonable fiduciary could disagree with this conclusion. As to the resolution, Dr Lehtimki did not consider that he was bound to vote in favour, although throughout the proceedings it has been unclear what his actual voting intentions are. The Chancellor held that, as a member of CIFF, Dr Lehtimki was also a fiduciary and that, once the court had approved the Grant, he would be in breach of his fiduciary duty if he voted against the resolution. He ordered Dr Lehtimki to vote in favour of the resolution. The Court of Appeal (Gloster VP, Richards and Newey LJJ) agreed that Dr Lehtimki was a fiduciary but held that he had not threatened to act contrary to his fiduciary duty, since he had stated that he intended to act in what he considered would promote CIFFs charitable purposes. The Court of Appeal discharged the order against Dr Lehtimki. Ms Cooper appeals to the Supreme Court and seeks an order requiring Dr Lehtimki to vote in favour of the resolution. Dr Lehtimki and Sir Christopher contend that: (1) no such order can be made as a member is not a fiduciary; (2) that, if he was, there is a principle of trust and charity law that the court does not generally intervene in the exercise of a fiduciarys discretion unless he is acting improperly or unreasonably (the non intervention principle); and, (3) that Companies Act, s 217 precluded the court from giving Dr Lehtimki the direction to vote. The Supreme Court, Lord Reed (dubitante) concurring in the order, allows that appeal and makes an order requiring Dr Lehtimki to vote in favour of the resolution for the following reasons: Issue 1: Dr Lehtimki is a fiduciary when acting as a member of CIFF Lady Arden gives the sole judgment on this issue. The distinguishing characteristic of a fiduciary is that he owes a single minded duty of loyalty in matters covered by his duty [44]. A member of a charitable company in principle owes this duty. A charitable company itself is analogous to a charitable trustee, in the sense that it holds its assets subject to a binding obligation to apply them for charitable purposes only. The practical objections to members being fiduciaries (with duties to make their own investigations before voting and so on) are met by the fact that trust law allows such duties to be shaped by contract and in this case the members duties are shaped by the companys constitution, as well as relevant legislation. So, the duty is essentially a contract and statute based model [92]. The holding that a member is a fiduciary does not mean that there may not be matters on which a member can vote which only concern him personally and not the charity [101]. Issue 2: The Court can direct Dr Lehtimki to vote in favour of the resolution Lord Briggs, with whom Lord Wilson and Lord Kitchin agree, considers that once a court has decided whether a transaction is in the charitys best interests, that question is finally resolved. The Chancellor was right that the member no longer has a free vote. The charitys fiduciaries (whether or not parties) were obliged to use their powers to ensure that the courts decision was implemented. It would be a plain breach of duty for a fiduciary not to follow that decision [207 208]. If the decision was wrong, it could be appealed [210]. The concept that a fiduciary is entitled to form his own subjective judgment about a matter assumes that there are different conclusions about the matter which might reasonably be reached. This is no longer the case where a court has decided the issue [218]. If there was no such breach of duty, Lord Briggs agrees with Lady Arden that this case constitutes an exceptional case in which the non intervention principle does not apply [217]. Lady Arden holds that this care is a rare exception to the non intervention principle because of the existential threat to CIFF caused by the deeply felt dissension between the two founders [137]. She rejects the majoritys analysis. The order approving the Grant did not give jurisdiction to make an order directing Dr Lehtimki to vote on the beach of duty basis [180]. Moreover, a members duty is subjective: Dr Lehtimki did not threaten to breach that duty. There are strong reasons of policy for the subjective approach to fiduciary duties and for the non intervention principle, such as the policy of encouraging persons to act as fiduciaries [187]. The majoritys analysis also means that members are automatically in breach of duty if they fail to implement a transaction approved by the court at the trustees request, and this was contrary to the ethos of a membership charity, in which members who desire to do more than give may play a part in the direction of the charity. In addition, when the vote is taken, circumstances may have changed [194]. Issue 3: Companies Act 2006, s 217 does not prevent the court from directing a member to vote Lady Arden gives the sole judgment on this issue. Charities operate within a public law framework, where the court does not in general substitute its own judgment for that of the decisionmaker. However, section 217s purpose is to ensure adequate disclosure to, and approval by, the companys members [159], and the right to vote can be restricted by the companys constitution or by orders made under the 2006 Act. In these circumstances, where the matter is internal to the charitable company, the court can in an appropriate case direct one of its members how to vote [165].

These appeals arise out of an application by West Lothian Council (the local authority) for a permanence order under s.80 of the Adoption and Children (Scotland) Act 2007 (the 2007 Act), granting it parental responsibilities and rights in relation to a child (EV), including the authority to adopt. EV was born on 30 December 2013 and has been in care since her birth. The application is opposed by EVs parents, both of whom have experienced learning difficulties throughout their lives. Section 84 of the 2007 Act sets out the conditions and considerations applicable to the making of a permanence order. s.84(3) prohibits the making of an order unless the court considers that it would be better for the child that the order be made than that it should not be made. In considering whether to make an order and, if so, what provision the order should make, the need to safeguard and promote the welfare of the child throughout childhood is to be regarded as the paramount consideration (s.84(4)). S.84(5)(b) imposes a duty on the court to have regard to certain factors before making a permanence order. Under s.84(5)(c)(ii), before making a permanence order the court must be satisfied, in relation to each of the parents, that the childs residence with that person is likely to be seriously detrimental to her welfare. The local authoritys concerns in relation to EV primarily related to her father, and arose out of allegations concerning his behaviour before she was born. The Lord Ordinary, after hearing 9 days of evidence, granted the permanence order with authority to adopt. He made few findings of fact in relation to the issues in dispute, and none in relation to whether the threshold test in s.84(5)(c)(ii) was satisfied. Instead of considering whether the allegations were relevant to the threshold test; if so, whether they were true; and if so, whether the test was met, his approach was to consider whether the local authoritys actions had a proper basis. The Lord Ordinarys decision was upheld by the Inner House, except in relation to the grant of authority to adopt and a related prohibition on contact by the parents. The parents now appeal to the Supreme Court. On the parents appeals to the Supreme Court, the local authority argued that if the appeal against the decision of the Inner House were allowed, the application for a permanence order should not be refused, but should be remitted to the Inner House for it to determine the application on the basis of the evidence before the Lord Ordinary (and such further evidence as may be appropriate). The Supreme Court unanimously allows the appeals, and refuses the petition for a permanence order. Lord Reed gives the judgment, with which the rest of the Court agrees. The test under s.84(5)(c)(ii) is a factual threshold test which has to be met before the court reaches the stage of considering whether to make a permanence order under the other provisions of s.84. The judge is the primary decision maker in determining whether the threshold test has been met, and must base his or her determination of that issue on findings of fact. The judge is not exercising a merely supervisory jurisdiction over the approach of the local authority. S.84(5)(c)(ii) is similar to section 31(2) of the Children Act 1989, which requires the court to be satisfied that the child concerned is suffering, or is likely to suffer, significant harm before it can make a care order. Both provisions impose a threshold test, requiring the court to be satisfied of a likelihood. Decisions under s.31(2) of the 1989 Act as to a future likelihood of harm cannot be based merely on allegations or suspicions, but on facts which have been established on a balance of probabilities (In re J (Children) Care Proceedings: Threshold Criteria) [2013] UKSC 9). The approach in In re J is also applicable to the 2007 Act. The legislation needs to be construed in a way which strikes a proper balance between the need to safeguard children and the need to respect family life. The requirement that residence with the parent was likely to be seriously detrimental indicates depriving parents of their parental authority is a serious matter and should only be done if strict criteria are satisfied. The inclusion of the word satisfied as part of the test indicates that suspicions cannot form the basis of the order (and can be contrasted with other statutory language used where suspicion may be enough). If the court finds that the threshold test is satisfied, it must make clear (1) what the nature of the detriment is, which the court is satisfied is likely if the child resides with the parent, (2) why the court is satisfied that it is likely and (3) why the court is satisfied that it is serious. The alleged behaviour about which the local authority was concerned could only be relied on as a basis of a finding that the threshold test was satisfied if the allegations were relevant to that issue and if they were proved on the balance of probabilities to be true [19 29]. The approach of the Lord Ordinary was deficient in a number of respects. He did not determine the threshold issue arising under s.84(5)(c)(ii) but approached the case in a supervisory manner considering whether the local authoritys concerns about EVs father were justified. The correct approach would have been to consider whether the allegations were relevant to the issue arising under s.84(5)(c)(ii). If they were, then the Lord Ordinary should have made a finding of fact on the balance of probabilities as to whether the allegations were true. If he was unable to make such a finding, he should not then take them into account in his consideration of the threshold test. Further, the Lord Ordinary did not refer to the matters which he had a duty to consider under s.84(5)(b). It is not clear whether he had in mind the requirement under s.84(4) that the childs welfare is paramount, but that is not in any event a consideration that would arise until the threshold test under s.84(5)(c)(ii) was satisfied [30 62]. The application should not be remitted to be decided again by the Inner House, but refused. It is open to the local authority to commence fresh proceedings as and when that may be appropriate. Remitting the case would require the Inner House to go through nine days worth of evidence which by now is somewhat stale and which would not take into account intervening events which may be relevant. This is a case where the assessment of the evidence is difficult because of the learning difficulties of the parents and there may be a significant benefit in seeing and hearing the evidence at first instance [63 66].

The criminal law relating to abortion in Northern Ireland falls within the legislative competence of the Northern Ireland Assembly by virtue of section 4(1) of the Northern Ireland Act 1998. Abortion is lawful in Northern Ireland only in far narrower circumstances than in the rest of the UK. Consequently, a steady stream of women usually resident in Northern Ireland come to England to secure an abortion. Many of these women attend private clinics which charge a fee for the service, as they are unable to obtain an abortion free of charge under the English NHS unless in an emergency. A, a resident of Northern Ireland, became pregnant in 2012 at the age of 15. With the support of her mother, B, A decided to seek the termination of her pregnancy. B accompanied A to a private clinic in Manchester where A underwent an abortion. The total cost was about 900. The appellants argued that the respondents failure to provide for A, as a UK citizen usually resident in Northern Ireland, to be entitled to undergo an abortion free of charge under the NHS in England was unlawful. Section 1(1) of the National Health Service Act 2006 (the 2006 Act) places a duty on the respondent to continue the promotion in England of a comprehensive health service designed to secure the improvement (a) in the physical and mental health of the people of England, and (b) in the prevention, diagnosis and treatment of illness. The respondent also had a duty under section 3(1) of the 2006 Act to provide throughout England, to such extent as he considers necessary to meet all reasonable requirements [] (c) medical services. The respondent had the power to make a direction under section 7(1) of the 2006 Act and regulation 3(7) of the NHS (Functions of Strategic Health Authorities and Primary Care Trusts and Administration Arrangements) (England) Regulations 2002 providing that the function of providing abortion services should be exercised by primary care trusts (latterly clinical commissioning groups) for the benefit of all persons present in their area who were citizens and residents of the UK rather than only for those usually resident in its area. The appellants contend, firstly, that in failing to make such a direction the respondent acted irrationally and unlawfully took into account the Northern Ireland Assemblys decision not to provide abortion services. Further, they argued section 3(1) required the respondent to make a direction. Secondly, the appellants argued that the respondents failure to make a direction violated article 14 of the European Convention on Human Rights taken in conjunction with article 8 because their right to respect for private and family life was not secured without discrimination on the ground of usual residence. The Supreme Court by a majority of 3 to 2 dismisses the appeal. Lord Wilson gives the lead majority judgment, with which Lord Reed and Lord Hughes agree. Lord Reed gives a concurring judgment, with which Lord Hughes agrees. Lady Hale and Lord Kerr give dissenting judgments. Lord Wilson expresses sympathy with the deeply unenviable position of those in the situation of the appellant, but rejects the public law challenge. Parliaments scheme is that separate authorities in each of the four countries in the United Kingdom should provide free health services to those usually resident there. The respondent was entitled to make a decision in line with this scheme for local decision making. Further, the respondent was entitled to afford respect to the democratic decision of the people of Northern Ireland not to fund abortion services, and to take into account the ability of Northern Irish women to lawfully travel to England and purchase private abortion services there [20]. Lord Wilson concludes that the human rights challenge fails as the difference in treatment was justified [35]. The respondents decision as to whether to provide abortion services to a group of women free of charge falls within the scope of article 8 [22]. The respondent treated women usually resident in England differently from women who, although UK citizens, were usually resident in Northern Ireland [31]. A difference of treatment between UK citizens present in England on the grounds of usual residence falls within the scope of other status for the purposes of article 14 [27]. The respondents aim to stay loyal to the devolved scheme for health services and the democratic decision reached in Northern Ireland in relation to abortion services was rationally connected to his decision not to make the direction sought by the appellants. With that aim in mind he could not have reached any decision less intrusive upon the article 8 rights of the appellants [32]. The respondents decision struck a fair balance between the appellants rights and the interests of the UK community as a whole and, accordingly, was justified. As such, the difference in treatment did not amount to discrimination [35]. In a concurring judgment, Lord Reed reviews decisions and judgments of the European Court of Human Rights and the former European Commission on Human Rights that relate to devolved laws which differentiate between UK citizens according to whether they are residents of that part of the UK [38 48]. Such differential treatment falls within the scope of article 14 and requires to be justified [49]. Lord Kerr would have allowed the appeal. While the aim in section 1(1)(a) of the 2006 Act relating to the improvement of physical and mental health is limited to the people of England, the aim in section 1(1)(b) relating to the prevention, diagnosis and treatment of illness is not so limited [59]. Northern Irish women who seek an abortion in England are being treated for the preventionof illness under section 1(1)(b) as allowing an unwanted pregnancy to continue to term carries a risk of physical or mental injury [69]. In failing to exercise his power, the respondent was wrong to believe that his section 3 duties were confined to the people of England [72] and that affording respect to the Northern Ireland Assembly required denying Northern Irish women the means of obtaining abortions in England. The Northern Ireland Assembly has expressed no view about the ability of Northern Irish women to travel to England to obtain abortions [74]. Allowing these abortions to take place on the NHS would not alter the democratic decision of the Northern Ireland Assembly [75]. In respect of the human rights challenge, Lord Kerr would have held that no legitimate aim exists for the interference with article 8 [87]. Allowing Northern Irish women abortions on the NHS would not compromise the scheme of local provision of medical services [84 85]. Further, neither democratic deference to the Northern Ireland Assembly nor cost can qualify as legitimate aims [86]. Lady Hale agrees with Lord Kerr [92]. Further, if the requirements of the Abortion Act 1967 are complied with then it is a reasonable requirement under section 3 of the 2006 Act that the respondent provide a woman with a service, wherever she comes from. The NHS can charge women from abroad in respect of abortion services. But they cannot charge women from the United Kingdom [94].

This appeal case centred around whether a local education authority has a minimum legal obligation to provide all children with an effective education, taking account of their special needs and regardless of the demands that this has on resources. A, a man now aged 21, is severely autistic, suffers from epilepsy, and has grave learning difficulties. As a boy, he attended a special school. In 2001, when he was aged 12, teachers at the school expressed concern about his behaviour and the schools ability to deal with him. He would self harm, would suffer from regular epileptic fits in spite of medication, was doubly incontinent, had no concept of danger, and required constant supervision. In January 2002, As parents were asked not to bring him into school for health and safety reasons. It was at that time intended that he should receive an urgent residential medical assessment but this was delayed. Meanwhile the school sent work and activities for A to do with his parents at home and provided him with some weekly speech and language therapy sessions. Neither the Council nor As former school was able to provide a home tutor who was qualified or able to meet As needs. The assessment eventually took place in September 2002. It recommended that A should be placed in a 24 hour residential school specifically for children with high levels of challenging behaviour. Between October and December the Council wrote to a number of schools seeking a placement for A, but without success. Meanwhile As condition continued to deteriorate. A residential school placement did not finally become available under the end of July 2003. When, in July, he took up his place at his new school, his overall health and behaviour started to improve. He since received an appropriate education. He left the school in the summer of 2008 and now lives in residential therapeutic accommodation. Article 2 of the First Protocol to the European Convention on Human Rights (A2P1), made part of UK law by the Human Rights Act 1998, guarantees that no person shall be denied the right to education. In this case, relying on A2P1, A sought damages from Essex County Council arguing that, between the period January 2002 to July 2003, his right to education was infringed. The lower courts (High Court and Court of Appeal) had both decided that, since As case had no realistic prospect of succeeding, it should be struck out. That meant that A could not seek to prove his claim at a full trial of the evidence. A appealed to the Supreme Court against this decision. A also appealed against a ruling that he should not be allowed to pursue his claim because he had brought it outside of the legal time limit for the bringing of such claims. As case raised the following important issue of principle. Does A2P1 impose a minimum obligation to provide a child with an education that is effective having regard to his special needs, regardless of the demands that this makes on resources? A argued that it does, and that this mirrors the public law obligation imposed by statute in England and Wales. A argued that for the 18 months he was denied this right, because his special needs were not met. A also made an alternative argument. He said that A2P1 entitled him to such facilities as were available in the 18 month period, even if these were not adequate to meet his special needs, and that there had been a failure to provide these. The appeal was dismissed. A majority of three to two Justices (Lords Clarke, Phillips and Brown) held that on the principal issue it was not arguable that A2P1 gave A an absolute right to education that met his special needs during the 18 months. A full trial could not be allowed to proceed on that basis. The time taken to find a school that met these needs was attributable to limitation of resources. Even if the delay had been attributable in part to administrative shortcomings, this would not have amounted to a breach of A2P1. On the alternative argument, a different majority, (Lord Phillips, Lady Hale and Lord Kerr) held that A might have been able to establish a breach of A2P1 at a full trial in the form of a failure to provide educational facilities that were available that would have mitigated the consequences of the failure to meet As special needs during the 18 months. However a majority (Lord Phillips, Brown, Kerr and Clarke) held that it would not be right to extend the one year time limit to enable A to bring his claim. He is unable to pursue his claim at a full trial.

The central issue in this appeal is whether the respondent was precluded from making an order depriving the appellant of his British citizenship because to do so would render him stateless. This turns on whether he was considered as a national by Vietnam under the operation of its law (article 1(1) of the 1954 Convention relating to the Status of Stateless Persons). Alternatively, the appellant argues that the decision was disproportionate under European Union law. The appellant was born in Vietnam in 1983. In 1989 his family came to the UK, claimed asylum and were granted indefinite leave to remain. In 1995 he acquired British citizenship. The appellant took no steps to renounce his Vietnamese nationality. On 22 December 2011 the Home Secretary deprived him of his British citizenship under section 40(2) of the British Nationality Act 1981 because she suspected that the appellant was involved in terrorist activities. Vietnamese officials have since declined to acknowledge that Mr Pham is a national of Vietnam. He appealed against the respondents decision to the Special Immigration Appeals Commission (SIAC) on various grounds, including that he had lost his Vietnamese citizenship and therefore the decision made him stateless, contrary to section 40(4) of the 1981 Act. On a preliminary hearing on this issue, SIAC allowed the appeal on the basis that in practice it was the Vietnamese executive who made nationality decisions, and Mr Pham would not have been considered to be a Vietnamese national by the executive on 22 December 2011 had it been asked at that point. The Court of Appeal allowed the Secretary of States appeal and held that Mr Pham was a Vietnamese national on the relevant date under the text of Vietnamese laws. The Supreme Court unanimously dismisses the appeal and remits to SIAC to decide the remaining issues in the appeal. Lord Carnwath gives the lead judgment. Lord Mance, Lord Sumption and Lord Reed give concurring judgments. Lord Neuberger, Lady Hale and Lord Wilson agree with Lord Carnwath, Lord Mance and Lord Sumption. Lord Carnwath observes that the question under article 1(1) is not necessarily to be decided solely by reference to the text of the nationality law of the state in question. to the governments practice, even if not subject to effective challenge in the courts. However, even on the broad interpretation suggested by the UN High Commissioner for Refugees in its guidance, there is no evidence of a decision or practice of the Vietnam government which treated the appellant as a non national by operation of its law. Nor in any event was there evidence of a decision that was effective at the date of the Home Secretarys decision of 22 December 2011; unlike a court, the decision of the executive cannot take effect retrospectively. [34 38] On the further issues of EU law, in the judgment of the Court of Justice of the European Union in Rottman [2010] ECR I 1449, the Court did not explicitly state that a Member States decision as to the acquisition or loss of national citizenship, without any cross border element, is outside the scope of EU law. [48] Lord Carnwath observes that this raises issues of general importance; however, the European point was not properly before the court for decision in this appeal as the preliminary issue defined by SIAC was confined to the question of statelessness. [55 56] Lord Carnwath sees force in criticisms of some of the reasoning in Rottman. The issue would need to be considered by the domestic courts before it would be appropriate to consider a reference to the CJEU. However, before that stage is reached it is important that the tribunal of fact, SIAC, should first identify the respects in which a decision on these legal issues might be necessary for disposal of the case, including how the EU requirement of proportionality would differ in practice in the present case from proportionality under the European Convention on Human Rights, an issue already before SIAC, or from applying domestic law principles. [58 59] Lord Carnwath, Lord Mance and Lord Sumption agree that in this case, the nature and intensity of review may not differ whether under domestic law or EU law. [59 60, 98, 109 110] As to whether EU law offers greater procedural safeguards than domestic law, Lord Carnwath states that it is impossible to judge in the abstract what practical effect that might have and this is best considered by SIAC. [59 61, 100] Lord Mance agrees it is unnecessary at this stage to resolve the dispute about EU law. [71] It is very arguable that there are under the Treaties jurisdictional limits to EU competence in relation to the grant or withdrawal by a Member State of national citizenship. [84] A national court must ultimately decide for itself what is consistent with its domestic constitutional arrangements, including what jurisdictional limits exist on the competence of EU institutions. [90] Lord Mance further notes that proportionality could in principle be an appropriate standard of review at common law for a decision removing a status as fundamental as citizenship. [98] Lord Sumption adds that a different test for EU or human rights issues than for domestic issues produces arbitrary distinctions which depend on which source of law is invoked as a ground of challenge: in the present case, it would be rather unsatisfactory to apply a proportionality test to the decision so far as it affects Mr Phams EU citizenship but not his British citizenship. [104 105] Lord Reed notes that proportionality as a general ground of review of administrative action is distinguishable from proportionality as a basis for scrutinising justifications for interferences with legal rights. In the first sense, the domestic test of reasonableness has been held not to be identical to proportionality in EU or human rights law. Nevertheless, the tests may sometimes yield the same outcome. [112 116] As to the second sense, in a number of cases concerned with statutory powers to interfere with important common law rights, the court has interpreted the powers as subject to implied limits, adopting in substance a requirement of proportionality, though less formally structured than that under the Human Rights Act 1998. [118 119] Given the fundamental importance of citizenship, arguably the power to remove it should be subject to that implied limit; Lord Reed reserves his view on this as it was not argued. [120]

RTS specialises in the supply of automated machines for packaging and product handling in the food and consumer goods industry. Mller, a well known leading European dairy product supplier, entered into discussions with RTS regarding automating its product re packaging process. While negotiations were continuing, and before the terms of the contract between them had been agreed, the parties decided to start work on the basis of a letter of intent and the understanding that ultimately terms would be finalised. However, no final contract was ever signed. A dispute later arose between the parties in relation to the delivery by RTS of certain equipment to Mller. The main issue to be decided by the Supreme Court was whether the parties entered into a contract following the expiry of the letter of intent and, if so, the terms of that contract. At the trial of preliminary issues in the High Court, the judge held that after the expiry of the letter of intent and by no later than 29 June 2005, there was a contract: the parties had reached full agreement on the work that was to be done for the price they had already agreed. The judge held that the contract was based on limited terms and did not include the final draft version of certain terms known as the MF/1 conditions (Mllers standard contract conditions). RTS appealed the judges conclusions. The Court of Appeal unanimously allowed the appeal and made a declaration that no contract came into existence after termination of the letter of intent. The Supreme Court unanimously allows the appeal. In doing so, it reaches a different conclusion from both the High Court and the Court of Appeal finding that although there was no formal contract, Muller and RTS did reach a legally binding agreement and that that agreement contained wider terms than the limited terms found by the judge. The order of the Court of Appeal is set aside and the court declares that (1) the parties reached a binding agreement on or about 25 August 2005 on the terms agreed on or before 5 July (as subsequently varied on 25 August), and (2) that that binding agreement was not subject to contract. The judgment delivered by Lord Clarke is the judgment of the court to which all of its members contributed. The Supreme Court identified the relevant principles to be applied (paragraphs [44] [55]). It identified three possible conclusions that were open to it: (1) there was no contract between the parties (as held by the Court of Appeal); (2) there was a contract between the parties on the limited terms found by the judge; or (3) there was an agreement between the parties on some other wider terms (paragraph [56]). In relation to the first possibility, it is unrealistic to suppose that the parties did not intend to create legal relations. It was common ground that the parties had agreed the price, which must have formed part of a contract between them. As the parties accepted that the letter of intent expired and was not revived, the contract containing the price must be some other agreement (paragraphs [57] [58]). In relation to the second possible conclusion, it is relevant that the parties treated the agreement of 25 August as a variation of the agreement that they had reached by 5 July. It does not make commercial sense to hold, as the judge did, that the agreement between the parties contained some but not all of the terms agreed by 5 July (paragraphs [59] [67]). In considering the third possibility, two questions arise: (i) whether the parties intended to be bound by what was agreed or whether there were further terms which they regarded as essential or which the law regards essential in order for the contract to be legally enforceable, and (ii) whether the parties departed from the original understanding or agreement that it was to be subject to contract (paragraph [68]). In answer to (i), the parties had reached essential agreement by 5 July. None of the issues remaining after that date were regarded by the parties as an essential matter which required agreement before a contract could be binding (paragraphs [69] [84]). As for (ii), it is possible for an agreement subject to contract or subject to written contract to become legally binding if the parties later agree to waive that condition. The court holds that in this case on or by 25 August the parties had agreed to waive the subject to contract provision. Any other conclusion makes no commercial sense (paragraphs [85] [87]). The court notes that the case demonstrates the perils of parties agreeing that work should proceed before a formal written contract is executed. The moral of the story is to agree terms first and start work later (paragraph [1]).

In this appeal, the Supreme Court is asked to decide whether findings of fact made by the General Court of the European Union (the General Court) are binding in subsequent domestic proceedings, under the EU principle of absolute res judicata. The appellants (collectively known as Servier), developed and manufactured the drug Perindopril, which is used to treat cardiovascular diseases including high blood pressure. Perindopril falls within the class of medicines known as angiotensin converting enzyme inhibitors (ACE inhibitors). The respondents, who are the claimants in the domestic proceedings, are the national health authorities of England, Wales, Scotland and Northern Ireland. Between May 2011 and September 2012, the claimants issued proceedings in England and Wales which alleged that Servier had: (i) breached article 101 of the Treaty on the Functioning of the European Union (TFEU) and/or Chapter 1 of the Competition Act 1998 (the 1998 Act) by entering into anticompetitive agreements with potential generic manufacturers and/or suppliers; and (ii) abused its dominant position in the market contrary to article 102 TFEU and/or Chapter 2 of the 1998 Act. The claimants contend that this allegedly unlawful conduct has delayed the entry of cheaper generic versions of Perindopril onto the UK market, which has, in turn, caused the claimants to suffer substantial financial loss. Serviers conduct relating to Perindopril was investigated by the European Commission (the Commission). On 9 July 2014, the Commission issued a decision which found that Servier had infringed articles 101 and 102 TFEU. Servier appealed to the General Court seeking the annulment of the Commissions decision. The General Court judgment upheld all but one of the Commissions findings of infringement of article 101 TFEU, but found that Servier had not infringed article 102 TFEU. This was because the relevant product market was not limited to Perindopril but extended to ACE inhibitors generally, and Servier did not have a dominant position in that wider market. Both the Commission and Servier have appealed to the Court of Justice of the European Union (CJEU). As there are significant overlaps, the domestic proceedings cannot proceed to a final trial until the EU proceedings have been resolved. However, in October 2016, Servier was granted permission to plead that the claimants failed to take reasonable steps to encourage switching from the prescription of Perindopril to cheaper generic ACE inhibitors. Servier asserts that, even if liability and causation are established, the claimants damages should be reduced or extinguished: (i) because the claimants failed to mitigate their loss; (ii) for contributory negligence; and (iii) because the losses claimed are too remote. It was determined that there should be a trial of preliminary issues relating to this argument. Servier argued that certain findings in the General Court judgment in particular concerning the extent to which Perindopril can be substituted for other ACE inhibitors are binding on the domestic courts in the preliminary issues trial. However, both the High Court and the Court of Appeal held that none of the findings relied on by Servier constituted res judicata for these purposes. Servier appealed to the Supreme Court. It claimed that the point of law is uncertain, not acte clair, and that the Supreme Court should therefore refer the question to the CJEU under article 267 TFEU. The Supreme Court unanimously dismisses Serviers appeal. It holds that the General Court findings Servier relies on are not binding in the domestic proceedings, and declines to make a reference to the CJEU. Lord Lloyd Jones gives the judgment, with which all members of the Court agree. The EU principle of absolute res judicata only applies to judicial decisions which have become definitive, either after all rights of appeal have been exhausted or after the time limits for exercising those appeal rights have expired. The General Courts findings are not yet definitive, and may never become definitive, because they may be reversed or rendered redundant in the appeal pending before the CJEU. The findings are not, therefore, binding in the domestic proceedings under the EU principle of absolute res judicata. A reference to the CJEU is unnecessary to decide the issues in this case [31 32]. The Court nevertheless sets out its views on the underlying issues of law, in the hope that they might assist at later stages of the domestic proceedings [32]. The leading authority on the EU principle of absolute res judicata is P&O European Ferries (Vizcaya) SA and Diputacin Foral de Vizcaya v Commission (Joined Cases C 442/03P and C 471/03P) [2006] ECR I 4845 [33 37]. This explains that, where the EU courts have annulled a Commission decision on substantive as opposed to procedural grounds, the substance of that judgment becomes binding on all the world, not just on the parties. This ensures stability of legal relations, because it means that a matter which has been definitely settled by judicial decision cannot be referred to the courts by different parties for reconsideration [38]. The purpose of the EU principle of absolute res judicata is to prevent the annulling judgment from being called into question in subsequent proceedings. This purpose provides the key to the principles scope and applicability [38, 42]. Absolute res judicata gives dispositive effect to the judgment itself. It therefore extends to the essential reasons for the judgment (or ratio decidendi), not just to the outcome set out in the operative part [39 40]. Only those aspects of the judgment which explain why the Commission decision has been annulled form part of the ratio decidendi, because those are the aspects which must be respected to prevent the annulling judgment from being called into question later on [42]. The General Court judgment annuls the Commissions finding that Servier had infringed article 102 TFEU, on the basis that the Commission was wrong to conclude that the relevant product market was limited to Perindopril, as opposed to all ACE inhibitors. The General Court made a number of findings of fact in this regard, including those Servier relies on. Accordingly, if the General Court judgment becomes definitive and it can be shown that the relevant findings were an essential basis of that judgment, it would not be possible to challenge those findings in later proceedings which sought to contradict the General Courts conclusions on the relevant product market within article 102 TFEU [46]. It is not necessary to treat the General Courts findings as binding in any other legal context. If the CJEU upholds the General Court judgment that Servier did not infringe article 102 TFEU, the claimants will no longer pursue their article 102 claim. In any case, at present, the domestic proceedings do not concern the relevant product market for the purposes of that article. Instead, Servier relies on the General Courts findings to support its defence based on mitigation of loss flowing from alleged anti competitive agreements contrary to article 101 TFEU. The General Courts findings cannot be detached from the authority of the annulling judgment and deployed in this wholly different context [48]. Servier contends that the General Courts findings are binding in any EU law proceedings which raise the same factual issues [47]. The Supreme Court rejects this argument because it is not supported by the EU or domestic case law [49 60]. This is not surprising, because it would be inconsistent with the purpose of the principle of absolute res judicata [49]. Serviers proposed approach also raises practical difficulties because it has no workable defined limits. More generally, if it is confined to the context of the consequences of an annulling judgment, the principle of absolute res judicata promotes legal certainty, the effective judicial control of EU institutions and the maintenance of the EU legal order. However, once freed from this restriction, it could operate in way that is arbitrary and unjust, binding persons not party to the original dispute in a wholly different legal context in a way which would be inconsistent with the principles of a fair trial [61]. The claimants claims in the domestic proceedings do not call into question or undermine the General Court judgment or its consequences in any way, nor do they contradict the General Courts decision as to what needs to be done to comply with EU law. The Supreme Court is therefore satisfied to the standard of acte clair that the EU principle of absolute res judicata does not apply [62].

Sustainable Shetland (SS) challenged a consent for a large windfarm in the Central Mainland of Shetland granted under s.36 of the Electricity Act 1989 on 4 April 2012 by the Scottish Ministers. SS alleged that the Ministers had failed to take proper account of the Birds Directive (2009/147/EC) (particularly articles 2 and 4(2)) in respect of the whimbrel, a protected migratory bird. By Article 2 Member States must take measures to maintain the population of wild birds species at a level which corresponds in particular to ecological, scientific and cultural requirements, while taking account of economic and recreational requirements, or adapt them up to that level. Article 4(1) requires special conservation measures to be taken in respect of species mentioned in Annex I of the Directive and Article 4(2) requires similar measures for regularly occurring migratory species not listed in Annex I, which includes whimbrel. Pursuant to this duty the Fetlar Special Protection Area (SPA) had been designated. Under Article 4(4), in respect of SPAs Member States shall take appropriate steps to avoid pollution or deterioration of habitats or disturbances of the birds, and outside SPAs they shall also strive to avoid pollution or deterioration of habitats. The whimbrel in Shetland represent around 95% of the UK population and a 2009 survey showed they are in decline. The application was accompanied by an Environmental Statement (ES). Scottish National Heritage (SNH) made objections, including on impact on the whimbrel. In response the developers submitted a new Addendum to the ES dealing in detail with likely effects on whimbrel. It included a Habitat Management Plan (HMP) with proposed habitat management actions e.g. to control predators. The SNH maintained their objections in respect of whimbrel, specifically referencing the Birds Directive. In their decision letter the Scottish Ministers considered various representations (including from SNH) and stated that they had had regard to their obligations under EU environmental legislation and to the potential for environmental impact in particular on species of wild birds. In a section headed Whimbrel the letter discussed the respective submissions on the subject. The estimate of 3.7 annual collision deaths was regarded as very small in the context of 72 108 annual deaths from other causes. The Ministers were not satisfied that the estimated impact of the development on whimbrel was significant, and considered that the potential beneficial effects of the HMP could reasonably be expected to provide counterbalancing positive benefits. In any case if, despite the HMP, the estimated negative impact on the species were to remain, the Ministers considered that the level of impact was outweighed by the benefits of the project, e.g. tackling climate change. The letter also stated that the HMP represented currently the sole opportunity to try to improve the species conservation status and that without the windfarm there currently appears to be no prospect of any significant work being undertaken to reverse the decline of the whimbrel in the UK. Conditions on the consent would ensure monitoring of the effects of the development and the success of mitigation measures. SSs challenge was upheld by the Lord Ordinary on other grounds but she indicated that, if necessary, she would have upheld the challenge under the Directive. The Inner House unanimously allowed the Ministers appeal. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the only substantive judgment, with which the other members of the court agree. The Ministers concluded that even without mitigation the impact on whimbrel was not significant. [27] Although the decision letter did not mention the Directive as such, the detailed consideration given to SNHs advice leaves no serious doubt that it was taken into account. In the context of this proposal the Ministers duty was not to establish the precise scope of Article 2 duties to determine an appropriate level for the whimbrel but to determine whether to grant consent, taking account of all material considerations, of which the Directive formed part. [30 32] If there had been evidence that the development might prejudice the fulfilment of the Ministers duties under the Directive that would have required consideration. However, the appellants suggestions were unsupported by the evidence, and had not been raised by anyone (including SNH) in their representations on this proposal. The investigations conducted in connection with the windfarm proposal had highlighted the present status of the whimbrel. There was no reason to think that SNHs omission to call for designation of further SPAs or other special measures under article 4(2) reflected any misunderstanding of the law or material facts. [33 35] In any event the Ministers did have regard to improving the conservation status of the whimbrel, and were entitled to have regard to the limited anticipated impact of the proposal, combined with the prospect of the HMP improving their conservation status. [36] It is clear from the context of the relevant passage that reference to the benefits of the project as balancing considerations was a fall back position which would only come into play if the primary reasoning were not accepted. Interpretation of Article 2 raises some difficulties, one of which is the precise role of the economic factors there referred to. Another is the obligation of member states in relation to setting an appropriate level for the maintenance of different species. Since Article 2 applies to wild birds of all kinds it seems unlikely that it was intended to require an equally prescriptive approach in all cases, by contrast with the more specific measures required for the particular species protected by Article 4. The need for a reference to the CJEU may arise in a case in which the resolution of these issues is necessary for a decision; this is not such a case. [38 39]

These appeals concern the circumstances in which a prisoner serving a life sentence or an indeterminate sentence of imprisonment for public protection (IPP), who has served the minimum period specified for the purposes of retribution and deterrence (the tariff), and whose further detention is justified only if it is necessary for the protection of the public, should be awarded damages for delay in reviewing the need for further detention following the expiry of the tariff. They are also concerned with the quantum of such damages. Since 1997, legislation has required judges to impose life sentences on a wider range of offenders than was previously the case. In addition, IPPs were introduced in April 2005. It is for the Parole Board of England and Wales (the Board) to decide whether to direct the release of a life or IPP prisoner whose tariff has expired. The prisoners case must first be referred to the Board by the Secretary of State for Justice (the Secretary of State). The increase in the number of life prisoners and the introduction of IPP sentences resulted in an increase in the Boards workload, but its resources were not increased. This resulted in delay in the consideration of post tariff prisoners cases. That delay has implications under the Human Rights Act 1998 (the 1998 Act), which gives effect to Article 5 of the European Convention on Human Rights (the Convention). Article 5(1) requires that detention must throughout its duration remain causally connected to the objectives of the sentencing court. In relation to post tariff prisoners, that objective is the protection of the public. In order to comply with Article 5(4), the Board has to review the necessity for the continued detention of post tariff prisoners speedily upon the expiry of their tariff and at reasonable intervals thereafter. The 1998 Act also provides that the remedies for a violation of a Convention right include damages. Mr Faulkner was sentenced in 2001 to life imprisonment for a second offence involving grievous bodily harm. Mr Sturnham was convicted of manslaughter in 2007 and given an IPP sentence. In each case, there was a delay in the holding of a hearing before the Board after the tariff had expired, due to administrative errors for which the Secretary of State was responsible. Both men were eventually released following Board hearings, but Mr Faulkner was twice recalled to prison in respect of allegations of which he was acquitted, and remains in custody. Each sought judicial review of the failure by the Board and the Secretary of State to conduct a review of his detention speedily, as required by Article 5(4). Mr Faulkner was unsuccessful in the High Court, but the Court of Appeal held that the Secretary of State had breached Article 5(4), that Mr Faulkner would have been released 10 months earlier than he was but for that breach, and that the Secretary of State should therefore pay him 10,000 in damages. In Mr Sturnhams case, the High Court held that there had been a breach of Article 5(4) due to a delay of 6 months, that he had been caused anxiety and distress by the delay, but that there was no prospect that he would have been released any earlier had the hearing taken place speedily. The Secretary of State was ordered to pay him 300, but that award was quashed by the Court of Appeal. In Mr Faulkners case, the Board appeals to the Supreme Court on the ground that the award of damages was excessive. Mr Faulkner cross appeals on the ground that the award was inadequate and that his imprisonment during the period of delay constituted false imprisonment at common law or a violation of Article 5(1). Mr Sturnham seeks permission to appeal against the Court of Appeals decision to quash the award of damages to him. The Supreme Court allows the Boards appeal in Mr Faulkners case, reduces the damages awarded to him to 6,500, and dismisses his cross appeal. The Court grants Mr Sturnham permission to appeal and allows his appeal. Lord Reed gives the lead judgment, with which Lord Neuberger, Lord Mance and Lord Kerr agree. Lord Carnwath delivers a concurring judgment. Mr Faulkners argument that the detention of a life prisoner constitutes false imprisonment if it continues beyond the point at which the prisoner would have been released if a hearing had been held in accordance with Article 5(4) must be rejected. That detention is still authorised by statute, and is therefore lawful until the Board directs release [16, 86]. Nor was Mr Faulkner the victim of a violation of Article 5(1). Such a violation requires exceptional circumstances warranting the conclusion that continued detention has become arbitrary, which were not present in Mr Faulkners case [17 23, 86]. On the question of the award of damages under the 1998 Act, the courts should be guided primarily by the principles applied by the ECtHR, which may be inferred from any clear and consistent practice of that court. The quantum of such awards should broadly reflect the level of awards made by the ECtHR in comparable cases brought by applicants from the UK or other countries with a similar cost of living [39]. The courts should resolve disputed issues of fact in the usual way even if the ECtHR in similar circumstances, due to the nature of its role, would not do so [39, 82]. Where it is established on the balance of probabilities that a violation of Article 5(4) has prolonged the detention of a prisoner past the point at which he would otherwise have been released, damages should ordinarily be awarded. The amount of such damages will be a matter of judgment, reflecting the facts of the case and having regard to guidance from the ECtHR and the national courts in comparable cases [75]. Pecuniary losses should be compensated in full [53, 70]. Though relevant in some circumstances, it will not ordinarily be appropriate to take into account as a mitigating factor that a claimant was recalled to prison following his eventual release [83]. Nor should damages be awarded merely for the loss of a chance of earlier release [82], or adjusted according to the degree of probability of release if the violation of Article 5(4) had not occurred [84]. Appellate courts do not ordinarily interfere with an award of damages simply because they would have awarded a different figure if they had tried the case. However, as the Court is in this case being asked to give guidance on the appropriate level of awards, and having regard to awards made by the ECtHR in other cases and to the fact that the liberty enjoyed by a person released on licence is precarious and conditional, the Court considers that an award of 6500 would adequately compensate Mr Faulkner [87]. Even where it is not established that an earlier hearing would have resulted in earlier release, there is a strong presumption that delay which violated Article 5(4) has caused the prisoner frustration and anxiety. Where such a presumption is not rebutted, an award of damages should be made, though on a modest scale [53, 67 68]. No such award should be made in cases where the frustration and anxiety were insufficiently severe to warrant an award, although that is unlikely to be the case where the delay was of around three months or more [66]. Following that approach, and having regard to ECtHR authorities, the award of 300 to Mr Sturnham was reasonable in his case [97]. Lord Carnwath concurs with the reasoning and conclusions in Lord Reeds judgment, but suggests a more selective approach to ECtHR authorities. He suggests focusing on those cases which explicitly decide points of principle, and eschewing those which are simply assessments of the facts [104 127].

Six individuals were involved in road traffic accidents involving vehicles whose drivers were insured by the appellant insurance company, Haven Insurance Company Limited (Haven). They all entered into conditional fee agreements (CFAs) with the respondent solicitors firm, Gavin Edmondson Solicitors Limited (Edmondson). Edmondson notified the claims via the online Road Traffic Accident Portal (the Portal), in accordance with the Pre action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents (the Protocol). Under this scheme, the solicitors lodge the details of the claim on the Portal, the insurers respond by admitting or denying liability, and then, if liability is admitted, the amount of the damages are negotiated, with recourse to a court hearing if the amount cannot be agreed. Under the Protocol, the insurer is expected to pay the solicitors fixed costs and charges direct to the solicitors. In this case, however, shortly after the claims were logged on the Portal, Haven made settlement offers direct to the claimants, on terms which did not include any amount for the solicitors costs. Haven told the claimants that they could pay the claimants more, and more quickly, by that route, than by going through the Portal. All the individuals eventually accepted these offers, and cancelled their CFAs with Edmondson. This practice by Haven has been repeated in many other cases, which are not before the court. Edmondson claimed against Haven for the fixed costs which it should have been paid under the Protocol. Specifically, Edmondson sought enforcement of the solicitors equitable lien. This is a form of security for the payment of fees owed by the client for the successful conduct of litigation, paid out of the fruits of that litigation. Edmondsons claim was dismissed at first instance. The Court of Appeal allowed their appeal, holding that, even though the claimants did not have a contractual liability for the firms charges, which meant that the traditional equitable lien claim failed, the remedy could be modernised to allow the solicitors to recover from the insurers their fixed costs that should have been paid under the Protocol. The Supreme Court unanimously dismisses the appeal. Lord Briggs gives the lead judgment, with which the rest of the Court agrees. Edmondson are entitled to the enforcement of the traditional equitable lien against Haven, as the client owed a contractual duty to pay the solicitors charges. However, the equitable lien should not have been modernised in the manner undertaken by the Court of Appeal. The solicitors equitable lien: the existing law As the early cases demonstrate, the solicitors equitable lien was developed to promote access to justice. It enables solicitors to offer litigation services on credit to clients who, although they have a meritorious case, lack the financial resources to pay up front for its pursuit [1], [33 34]. The equitable lien depends upon (i) the client having a liability to the solicitor for his charges; (ii) there being something in the nature of a fund in which equity can recognise that the solicitor has a claim (usually a debt owed by the defendant to the solicitors client which owes its existence to the solicitors services to the client); and (iii) something sufficiently affecting the conscience of the payer at the time of payment, either in the form of collusion with the client to cheat the solicitor or notice or knowledge of the solicitors claim against or interest in the fund [35 37]. Construction of the CFA does the client have any contractual liability to pay the solicitors charges? The client care letter, which explained that the solicitor would be able to recover its costs from the losing side if the claimants won, so that the claimants would not need to put their hands in their own pockets, did not mean that the claimants were not contractually liable for the solicitors fees. It merely limited the recourse from which Edmondson could satisfy that liability to the amount of its recoveries from the defendant, and it both preserved and affirmed the clients basic contractual liability. This was a sufficient foundation for the lien to operate as a security for payment, on a limited recourse basis [40 44]. Did Haven have notice of Edmondsons lien? In all the cases before the court, the requirement that the settlement debts must owe their creation to Edmondsons services provided to the claimants under the CFAs was satisfied on the facts. Edmondsons actions in logging the claim on the portal contributed to the settlement in two ways. First, it supplied the details of the claim to the insurer, and second, it demonstrated the claimants serious intention to pursue the claim, and ability to do so with the benefit of a CFA [45 46], [59 63]. Once a defendant or his insurer is notified that a claimant in a road traffic accident case has retained solicitors under a CFA, and that the solicitors are proceeding under the Protocol, they have the requisite notice and knowledge to make a subsequent payment of settlement monies direct to the claimant unconscionable, as an interference with the solicitors interest in the fruits of the litigation. In this case, Haven had notice of the lien because they knew that each of the claimants had retained Edmondson under a CFA, and also knew that Edmondson was looking to the fruits of the claim for recovery of its charges [48 50]. As such, the lien could be enforced against Haven by requiring it to pay the fee amounts in the CFAs direct to Edmondson, but only up to the amount of the agreed settlement payments [65]. To that limited extent the order made by the Court of Appeal needed to be varied. The re formulation of the equitable lien by the Court of Appeal It is not strictly necessary to address this issue in view of the decision on the traditional principle above, but the correctness or otherwise of the Court of Appeals reformulation of the principle has been extensively argued, and the Law Society has intervened to support it [51 52]. There are insuperable obstacles to extending the principle to cases where, although there is no contractual liability for the charges, the Protocol is breached. This includes the fact that the Protocol is purely voluntary and created no debt or other relevant legal rights at all. Whilst equitable remedies are flexible, they still operate according to principle. One of the principles of the equitable lien is that the client must have a responsibility for the solicitors charges. There is no general principle that equity will protect solicitors from any unconscionable interference with their expectations in relation to recovery of their charges [53 58].

Under section 12A of the Theft Act 1968 the offence of aggravated vehicle taking is committed where a person has committed the basic offence of taking a vehicle without authority, and owing to the driving of the vehicle, an accident occurred by which injury was caused to any person (s12A (2) (b)). If the injury is fatal, the offence carries a maximum of 14 years imprisonment. On 23 June 2012, the appellant and another man called Marriott took a van belonging to Marriots employer, without the latters consent. While driving it, he collided with a scooter on a bend in a narrow country lane. The driver of the scooter was killed, and the appellant was later found to be over the drink drive limit and uninsured. The appellant was charged jointly with Mr Marriott with aggravated vehicle taking contrary to s12A of the Theft Act 1968 and with causing the death of the scooter driver whilst uninsured contrary to s3ZB of the Road Traffic Act 1988. The Crown accepted that there was no fault in the manner of the appellants driving. A Not Guilty verdict was therefore directed on the Road Traffic Act count, in accordance with the decision in R v Hughes [2013] WLR 2461. The judge held that fault also had to be proved in relation to the accident on the aggravated vehicle taking count; a decision which the Crown appealed. The Court of Appeal allowed the appeal, relying on R v Marsh [1997] 1 Cr App R 67, in which it was held that no element of fault was required in the offence of aggravated vehicle taking. But it certified a question of law of general public importance for consideration by the Supreme Court, namely Is an offence contrary to s12A (1) and 2(b) of the Theft Act 1968 committed when, following the basic offence and before recovery of the vehicle, the defendant drove the vehicle, and without fault in the manner of his driving the vehicle was involved in an accident which caused injury to a person. The Supreme Court unanimously allows the appeal, holding that the driving must have been at fault for a person to be convicted of aggravated vehicle taking under s12A of the Theft Act 1968. Lord Sumption gives the judgment. The reasoning in R v Hughes cannot be distinguished, because the offences under s12A(2)(b) of the Theft Act 1968 and s3ZB of the Road Traffic Act 1988 are both drafted in terms which require a direct causal connection between the driving and the injury. [20 22; 30]. Strict liability is typically imposed where the enactment is regulatory or quasi criminal. Aggravated vehicle taking under s12A is neither: it is a serious crime, exposing defendants to the possibility of much longer maximum sentences. It imposes strict liability only to the extent that anyone who was party to the taking of the vehicle (and in the immediate vicinity at the time of the injury) commits the offence, whether or not he was driving at the time. The appellants driving explained how the vehicle came to be in the place where the accident occurred, but cannot be said to have caused it [23 29]. The test is as set out in R v Hughes: there must be at least some act or omission in the control of the car which involves some element of fault, whether amounting to careless/inconsiderate driving or not, and which contributes in some more than minimal way to the death [30; 32 3]. This summary is provided to assist in understanding the Courts decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: http://supremecourt.uk/decided cases/index.html

The appellants (the trustees) are the trustees of the Inter Vivos Trust of the late William Strathdee Gordon (the trust). The trust owns farmland comprising three fields (a grazing field, a 40 acre field and a 50 acre field) which were acquired due to their long term development potential. Each field was let out under separate leases at various times to a farming partnership. By 2003, the leases for all three fields were agricultural holdings for the purposes of the Agricultural Holdings (Scotland) Act 1991. In 2003, the trustees instructed a firm of solicitors (the predecessor firm to the respondents) to serve on the farming partnership notices to quit the three fields at the term of 10 November 2003. Thereafter, due to defects in the notices relating to the 40 acre field and the 50 acre field, the solicitors served further notices to quit in respect of the three fields dated 8 November 2004 requiring removal by 10 November 2005. The tenant did not give up possession of the fields on 10 November 2005. On the same day, the solicitors wrote to the trustees to withdraw from acting for the trust. The trustees then instructed another firm of solicitors who applied to the Scottish Land Court to seek removal of the tenant. By 17 February 2006, at the latest, the trustees had incurred material expense in instructing the new firm. On 24 July 2008, the Scottish Land Court gave judgment which refused to give effect to the notices to quit relating to the 40 acre and 50 acre field as the notices were inaccurate in their description of both the tenant and the relevant lease. As a result, both the 40 acre and the 50 acre field remain subject to leases which are agricultural holdings, thus preventing development. Under the Prescription and Limitation (Scotland) Act 1973 (the 1973 Act), where an obligation has subsisted for a continuous period of five years after the appropriate date, and no claim is made, the obligation ceases. Section 6(3) of the 1973 Act provides that, in cases of contractual breach, the appropriate date is the date when the obligation became enforceable. Under s11(1) of the 1973 Act, an obligation arising from a breach of contract becomes enforceable on the date when loss, injury or damage occurred. Section 11(3) qualifies this by specifying that where the creditor is not aware, or could not with reasonable diligence have been aware, that loss, injury or damage has been caused, an obligation becomes enforceable when the creditor first became so aware. On 17 May 2012, the trustees commenced legal action against the respondents. The respondents contended that any obligation on them to make reparation to the trustees as a result of the defective notices had expired because the trustees had not raised the action within five years of the date when the trustees had suffered loss which was upon service of the notices on 8 November 2004 or, alternatively, when the tenant failed to quit the land on 10 November 2005. The trustees argued that they were first aware of their loss when the Scottish Land Court issued its decision on 24 July 2008. The Outer House upheld the respondents plea of prescription. The Inner House refused the trustees appeal. It held that s11(3) of the 1973 Act postponed the start of the prescriptive period only when the damage was latent by requiring that the creditor should have actual or constructive knowledge of the occurrence of damage or expenditure, which was viewed as an objective fact. The prescriptive period ran from the time the trustees incurred liability for legal fees notwithstanding that they didnt then know that their application to the Scottish Land Court would fail. The Supreme Court unanimously dismisses the trustees appeal. Lord Hodge gives the lead judgment with which the other Justices agree. In Morrison v ICL [2014] UKSC 48, the Supreme Court determined that, in terms of s11(3) of the 1973 Act, the creditor needed to be aware only of the occurrence of the loss or damage and not of its cause [17] but in that case the Court was not required to address the question raised by this appeal i.e. whether under s11(3) the creditor must be able to recognise that he or she has suffered some form of detriment before the prescriptive period begins. This appeal raises the question of whether s11(3) starts the prescriptive clock when the creditor is aware that he or she has spent money (e.g. on a professional advisor) but does not know that that expenditure will be ineffective [18]. The phrase loss, injury or damage must be interpreted consistently throughout s11 of the 1973 Act. [19 20]. It therefore follows that s11(3) does not postpone the start of the prescriptive period until a creditor of an obligation is aware, actually or constructively, that he or she has suffered a detriment in the sense that something has gone awry which renders the creditor poorer or otherwise at a disadvantage [21]. This approach may be harsh to a creditor where he or she is aware of incurred expenditure but not that it entails the loss. However, the alternative approach suggested by the trustees would create uncertainty and a requirement for awareness of a head of loss would involve knowledge of the factual cause of the loss, which is an interpretation rejected in Morrison [22]. Any understanding on the part of the trustees that the expenditure they incurred in pursuing the claim in the Scottish Land Court would ultimately be recovered from the tenant when their claim was successful was irrelevant. On an objective assessment, the trustees suffered loss on 10 November 2005 when they did not obtain vacant possession. At that moment, the prescriptive period began to run under s11(1) unless it could be postponed by s11(3). There was no postponement under s11(3) because the trustees were aware that they had suffered detriment when they did not obtain vacant possession on 10 November 2005. In any event, they were actually or constructively aware that they had incurred legal expenses to obtain such possession by 17 February 2006. The trustees did not begin proceedings until 17 May 2012. It follows that the respondents obligation to make reparation had by that time prescribed [24]. Whilst this conclusion may lead to hard cases being common, there are live proposals for law reform. Following a Scottish Law Commission report, the First Minister of Scotland announced on 5 September 2017 that the Scottish Government intended to bring forward a Bill to reform the law of prescription in Scotland. It will be for the Scottish Parliament to decide whether the Commissions proposals for reform of the discoverability test in s11(3) of the 1973 Act should be adopted [25].

This appeal raises questions as to the proper construction of provisions of the Conveyancing and Feudal Reform (Scotland) Act 1970 (the 1970 Act) which establish and regulate the form of security over heritable property known as a standard security. In particular, the appeal addresses the circumstances in which a creditor is entitled to eject the debtor from the property over which the security was granted. The Appellants, two married couples, are proprietors and occupiers of their homes, which are subject to a standard security granted by each couple to the respondent bank in 1991. In each case the amount secured was any sum which the husband and wife owed or might owe to the bank, whether jointly or as individuals. In 1992 and 1993, the husbands, who are brothers, undertook to repay to the bank any indebtedness of the two firms in which they were involved. In 1995 the bank wrote to each of the brothers demanding repayment of the amounts which were then overdrawn on current accounts of the firms. When the sums were not paid, the bank took steps which were intended to allow it to sell the couples homes. In particular, in 1998 the bank treated the debtors as being in default and applied for, and was granted, warrant to exercise the powers available to creditors under standard condition 10 in Schedule 3 to the 1970 Act. This was the first time that the wives knew that their homes were at risk of repossession by the bank. The bank then applied to Edinburgh Sheriff Court for an order to eject the couples from their homes. Under section 5 of the Heritable Securities (Scotland) Act 1894 (section 5), however, a creditor can only do so if the proprietor has failed to repay the sum in question after formal requisition. The sheriff declined to grant an order for ejection, on the basis that the bank had not made a formal requisition for payment. The bank appealed to the Court of Session. An Extra Division held that a certificate of default which the bank had lodged in court, in accordance with section 24(2), constituted such formal requisition. The couples appealed to the Supreme Court. The Supreme Court unanimously allowed the appeal and held that the bank is not entitled to the remedies sought. Lord Rodger held that a certificate of default is simply a piece of evidence created for use in proceedings and, contrary to the opinion of the Extra Division, cannot constitute a formal requisition for the purposes of section 5, since that requisition has to be made before any proceedings are begun: [31]. Having observed that service of a calling up notice would satisfy section 5 ([30]), Lord Rodger also rejected the banks argument that, on a proper interpretation of section 24(1) of the 1970 Act, the bank should be treated as if it had served a calling up notice. In Lord Rodgers opinion such an interpretation of section 24(1) would water down an important precondition to the ejection procedure, which was intended as a protection for debtors: [32] [33]. Lord Rodger further held that the language of section 19(1) of the 1970 Act is mandatory, not permissive: [46] [47]. Therefore a creditor, like the bank in this case, who seeks repayment of the debt and, failing repayment, to sell the security subjects must serve a calling up notice: [51]. The bank had not done so and, for that reason also, Lord Rodger would have allowed the appeal. Lord Clarke agreed with Lord Rodger on this point: [85]. Lord Hope said that he agreed with Lord Rodger, but that the decision that the bank had pursued the wrong course when they decided to enforce these securities ran counter to the way the provisions of the Act had been understood and applied for decades: [54]. A certificate of default lodged eight years after raising the action cannot satisfy section 5 because, logically, a formal requisition must occur before any default by the debtor: [63] [64]. Where a creditor seeks discharge of the debt (in whole or in part), the section 19(1) procedure has to be followed and a calling up notice must be served: [73] [74], so that even if the bank had met the requirements of section 5, it would not have been entitled to the remedies sought as it had not served the calling up notice: [75]. Both Lord Rodger and Lord Hope held that a calling up notice and a notice of default are not mutually exclusive and that in certain circumstances a creditor can serve both: [48], [71]. Lord Walker agreed with Lord Rodger and Lord Hope: [76]. Lady Hale held that section 19(1) procedure is mandatory, observing that the policy of requiring a creditor to give notice of its intention to call in the security to all proprietors makes good sense: [80]. Lady Hale also held that the formal requisition requirement under section 5 had not been complied with as the wives did not have notice of the banks repayment demand until the proceedings began and thus were not given an opportunity to remedy their husbands default until it was too late: [81].

On 11 May 2004 an explosion occurred at ICLs factory in Glasgow. Nine people were killed and many others injured, but the present case has no bearing on the claims made by or on behalf of those persons. Morrisons shop was among a number of properties damaged. On 13 August 2009 Morrison began the present proceedings, seeking damages against ICL on the basis that the damage to its shop was caused by ICLs negligence, nuisance and breach of duty [1]. Under section 6(1) of the Prescription and Limitation (Scotland) 1973 Act, an obligation to make reparation is extinguished through the operation of prescription if a claim has not been made or the subsistence of the obligation not acknowledged within five years of the relevant obligation having become enforceable [6 7]. Section 11(1) provides that an obligation to make reparation for loss, injury or damage caused by an act, neglect or default shall be regarded for the purposes of section 6 as having become enforceable on the date when the loss injury or damage occurred. ICL accept that they had an obligation to make reparation to Morrison, but argue that it prescribed long before the action was raised [63]. Morrison dispute this, relying on section 11(3). It postpones the date from which the prescriptive period begins to run where the creditor was not aware, and could not with reasonable diligence have been aware, that loss, injury or damage caused as aforesaid had occurred until a later date [2; 8]. Morrison argue that it was unlikely that, having ascertained that ICLs premises had been released, they could have investigated the cause of the explosion so as to be able to commence legal proceedings before 13 August 2004 [60]. In line with a number of authorities, the case proceeded in the courts below on the footing that under section 11(3) the commencement of the prescriptive period was postponed where the creditor was not aware, and could not with reasonable diligence have been aware, (1) that loss, injury or damage had occurred, and (2) that it had been caused by the breach of a duty owed to him. There was no doubt that Morrison knew damage had occurred on the date of the explosion. In order to establish that they also knew, or could with reasonable diligence have known, at that date or soon after that the explosion had been caused by a breach of duty, ICL relied on the principle expressed in the maxim res ipsa loquitur (the thing speaks for itself) [3]. ICL was successful before the Lord Ordinary, but the Inner House overturned his decision, holding that res ipsa loquitur did not apply. In its appeal to this Court, ICL has been permitted to raise the more fundamental issue of the interpretation of section 11(3) [5]. Lord Neuberger, Lord Sumption and Lord Reed agree that the appeal should be allowed. Lord Hodge and Lord Toulson dissent and would not have allowed the appeal. Lord Reed, with whom Lord Neuberger and Lord Sumption agree, considers that the words caused as aforesaid in section 11(3) are adjectival: they describe the loss with which the provision is concerned, but they do not have the effect of postponing the running of time until the creditor was aware that the loss had been caused by a breach of duty. Properly construed, section 11(3) is concerned with latent damage [15 17]. This is consistent with a natural reading of the provision in its context [19; 47]. If the draftsman had intended to require awareness that the loss had been caused by an actionable breach of duty, before the prescriptive period began to run, then he would have made this clearer [19], as he had done elsewhere in the Act in relation to the limitation period [20 22]. Lord Reed identifies a number of problems which would arise if the creditor had to be aware that there had been a breach of a legal duty owed to him. Prescription would run more or less quickly according to creditors awareness of the law [27]. In what sense could a creditor be aware of a breach of duty in advance of a judicial determination? [28] Describing awareness by reference to the creditors ability to advance a stateable prima facie case, as some recent Scottish decisions had done, would undermine legal certainty and go well beyond the language of the statute [29]. Lord Neuberger concurs, considering that the legislature could reasonably have assumed that in almost every case, five years from the date of loss, would be plenty of time for the creditor to discover all he needs to know to bring proceedings [55]. While careful consideration has to be given to the overturning of an approach followed for many years, Lord Reed points out counsels agreement that parties were unlikely to have been advised to delay initiating proceedings in reliance on the existing authorities. The approach previously followed rests on slender foundations for a matter of such importance, and has not gone unquestioned. The Justices agree that is not settled law [37]. Lord Hodge, with whom Lord Toulson agrees, also disagrees with the interpretation previously followed by the Scottish courts, but considers that section 11(3) should be construed as meaning that for time to begin to run there needs to be actual or constructive awareness of (i) more than minimal loss and (ii) its factual cause through an act or omission, but not (iii) that it is due to a breach of duty [87; 95]. He notes the Scottish Law Commissions 1989 recommendation (not implemented) that the legislation should be amended to require knowledge (a) that the loss, injury and damage was attributable in whole or in part to an act or omission and (b) of the identity of the defender [68]. All members of the Court agree that res ipsa loquitur has no application on a proper interpretation of section 11(3), and the majority agrees with Lord Hodges observations on that subject [37; 97 99]. In the light of the decision in this case, Lord Hodge urges that fresh consideration be given to the 1989 recommendations of the Scottish Law Commission.

This appeal concerns complex statutory provisions relating to corporation tax on financial transactions known as repos. These provisions have now been replaced. The general interest of the appeal lies in the approach to be taken to deeming provisions in statutes, namely those which create statutory hypotheses. A repo is a financial transaction under which shares or securities are sold at one price and are later repurchased by the seller at a different price, fixed in advance. Although in legal theory a sale and repurchase, in economic substance a repo is a secured loan by the buyer to the seller. The payment of the purchase price by buyer to seller is the advance of the loan; the shares or securities act as security for the loan; and the repurchase price is the repayment of the loan. A dividend or instalment of interest may become payable during the period of the repo. In a gross paying repo, the contract will provide for the interim holder (i.e. the buyer under the repo) to pay that dividend or interest over to the seller. Such a payment is, for tax purposes, called manufactured interest. In a net paying repo, the dividend or interest is retained by the interim holder, and the repurchase price adjusted to take account of the receipt. The Appellant (DCC) and a Bank entered into five consecutive net paying repo transactions in respect of UK government gilts. For the purposes of this case, these were treated as one composite transaction. The Bank sold gilts to DCC for 812m. During the 18 day period when DCC held the gilts, interest of 28.8m (payable half yearly) was received. The Bank repurchased the gilts for 785m. The Finance Act 1996 (the 1996 Act) made major changes in the taxation of interest for corporation tax purposes. Companies are now chargeable to corporation tax on the profits and gains from their loan relationships. In terms of section 84(1) of the 1996 Act, the credits and debits to be brought into account in respect of a companys loan relationships shall be the sums which, in accordance with an authorised accounting method, and when taken together, fairly represent . all interest under the companys loan relationships. Because of the approach of the tax legislation, the repos gave rise to three loan relationships. The question in this appeal was what debits and credits should be brought into account for DCC in respect of three loans relationships. They were: (1) the actual loan relationship between the UK government and the holder of the gilts. The payment of interest under the gilts created a credit in DCCs favour, as the holder of the gilts. (2) a deemed loan relationship between DCC (as lender) and the Bank (as borrower). Section 730A of the Income and Corporation Taxes Act 1988 (the 1988 Act) provided that the difference between the sale price and the repurchase price was to be treated as interest paid by the repurchaser (the Bank) on a deemed loan from the interim holder (DCC). This deemed payment gave rise to a credit for DCC. (3) a deemed loan relationship between the Bank (as lender) and DCC (as borrower) under which DCC was treated as making a payment of deemed manufactured interest: section 737A(5) of the 1988 Act & 97(2) & (4) of the 1996 Act. This deemed payment gave rise to a debit for DCC. The parties agreed that the second loan relationship created a credit to DCC of 1.8m (i.e. the repurchase price of 785m plus the gilt interest of 28.8m minus the purchase price of 812m.) There was no agreement as to the credit in respect of the first loan relationship (the interest on the gilts received by DCC) and the debit in respect of the third loan relationship (the payment of deemed manufactured interest deemed to have been made by DCC). The Special Commissioner and High Court reached different results. By a majority, the Court of Appeal concluded that the answer was credit 28.8m, debit 28.8m. DCC appealed to the Supreme Court. It argued that the answer was credit 2.9m; debit 28.8m, which would produce an overall debit. That would be to DCCs advantage, as it could set this against group profits to reduce the group overall tax bill. The Supreme Court unanimously dismisses the appeal, but adopts different reasoning to the Court of Appeal. It holds that the credit in respect of the interest on the gilts is 2.9m. The purpose of the deemed payment of manufactured interest by DCC being to cancel out that receipt and to allow it to be taxed as income in the hands of the Bank, the debit for that payment was also 2.9m. Lord Walker gives the judgment of the Court. Lord Walker examines the history of the tax treatment of repos. Under the regime prior to the 1996 Act, in the simple case where no gilt interest was payable during the period of the repo, the interim holder was treated as having made a loan of the sale price to the seller and was taxed on the interest he received on the loan, namely the difference between the repurchase price and the sale price. This corresponded to the economic reality of a repo. In a net paying repo, where interest was received by the interim holder during the period of the repo, the interim holder was deemed to make a payment representative of that interest to the seller: [14] [19]. There was a need for symmetry between these two payments. They were intended to cancel each other out, so that the buyer could be taxed on the repo as if it had made a secured loan at interest, and also to allow the gilts interest to be taxed as income of the seller: [26]. The 1996 Act effected a major change in the taxation of loan interest for corporation tax. Interest was to be computed in accordance with an authorised accounting method, in this case an accruals basis: [7], [23]. It was reasonable to expect that, when effecting this change, Parliament intended to preserve rather than to destroy the essentials of the existing provisions: [33]. Applying an accruals basis of accounting, DCCs credit in respect of interest on the gilts was 2.9m: the total payment of 28.8m accrued over a 6 month period, and DCC held the gilts for only 18 days: [30], [32], [44]. DCC submitted that applying an accruals basis of accounting to the deemed third loan relationship, the appropriate debit was 28.8m. No other result was possible, because it would mean that the balance of that payment vanished into the ether. Lord Walker emphasises that it is important when interpreting a deeming provision not to take the hypothesis further than is warranted: [40]. The payment which section 737A(5) of the 1988 Act deems DCC to make is said to be representative of the interest on the gilts received during the repo period. Section 97(2)(a) of the 1996 Act provides that this deemed payment is to be treated as interest paid under a hypothetical loan relationship. It was unwarranted to assume that this hypothetical loan relationship lasted no longer than the repo period, so that the entire payment needed to be treated as accruing during the 18 days during which DCC held the gilts. The interest on the gilts accrued during a period of six months but DCCs interest in the gilts lasted only 18 days: [42]. Its receipt of interest was therefore apportioned. The debit under a hypothetical relationship under which DCC was making a payment representative of that interest should also be a time apportioned sum, with the apportionment carried out in the same way: [43].

The appellants are employed as teachers at the respondent sixth form college [1]. They are paid an annual salary on a monthly basis [15]. Their contracts of employment incorporate terms relating to working time from a collective agreement known as the Red Book [2]. The Red Book provides that teachers will be required to work up to 195 days a year of directed time which includes teaching and other duties as directed by the Principal. In addition to directed time, a teacher is required to work for an unspecified amount of undirected time, defined as such reasonable hours as may be needed to enable [the teachers] to discharge their duties effectively, including, in particular, the marking of students work, the writing of reports on students, the preparation of lessons, teaching material and teaching programmes and such other duties as may reasonably be required [14 16]. The appellants regularly performed undirected duties outside of the normal term time hours, i.e. during evenings, weekends and/or days of annual leave [20 21]. On 30 November 2011, the appellants participated in a full day of lawful strike action. The Red Book provides that when sixth form teachers go on strike their employer can withhold their pay [2]. The respondent made deductions from the appellants pay at a rate of 1/260 of their annual pay, 260 being the number of weekdays in a calendar year [2]. The appellants brought proceedings in the County Court alleging the respondent was in breach of contract. They argued that the respondent was only entitled to deduct 1/365 of their annual pay, pursuant to section 2 of the Apportionment Act 1870 (the Act), which provides that all. annuities. shallbe considered as accruing from day to day, and shall be apportionable in respect of time accordingly. The Act defines annuities to include salaries [2 5]. Before the trial commenced, another case involving the same issue and very similar facts was decided in favour of the sixth form college in the High Court. The parties therefore agreed for final judgment to be entered in favour of the respondent. The appellants were granted permission to appeal directly to the Court of Appeal, which dismissed the appeal [6 7]. It found that section 2 did not imply a principle of equal daily accrual but a daily accrual at a rate gleaned from the construction of the contract. Elias LJ thought in this case the rate should be 1/195; 195 being the number of days of directed time. However, as some work done in undirected time was not necessarily linked to directed time, he accepted that the respondents approach of relating the work to the total number of annual working days was a sensible and acceptable principle [42]. The Supreme Court allows the teachers appeal. Lord Clarke, with whom the other justices agree, gives the lead judgment. The Act is intended to address the problems which arise in the context of periodic payments which are entire indivisible payments. The appellants salaries are such payments; the contracts do not provide expressly or by necessary implication for their salaries to paid to staff pro rata in respect of divisible obligations to perform work on each day of directed time. The Act is therefore applicable to their contracts [9 11]. The use of the word considered in section 2 of the Act shows that the section is a deeming provision, which deems that payments are to accrue day by day at an equal rate. Where an employment contract is an annual contract, it must therefore be apportioned on a daily basis over 365 days, yielding a daily figure of 1/365 [24, 30, 34, 37]. If the employment contract was other than an annual contract, then the rate would no doubt be different [48]. Section 7 of the Act provides that the Act will not apply where it is expressly stipulated that no apportionment shall take place [4]. This means that the principle of equal daily apportionment will apply unless the contract in clear terms addresses it and says it should not. Where the language of the contract is clearly inconsistent with this principle this will also amount to an express stipulation for the purposes of section 7 [38 40]. There is nothing in the appellants contracts which stipulates for any apportionment other than apportionment on a calendar day basis. The Court of Appeals approach assumes that working days are limited to days on which directed duties are carried out [28 29]. However, the appellants are paid a salary to perform the duties referred to in their contracts and there is no suggestion that some of those are paid and some unpaid. Given the wide scope of the responsibilities of teachers, none of the appellants are able to carry out all of their work during directed time, therefore the appellants carry out much of their work in undirected time outside of the normal college day on evenings, weekends and days of annual leave. While there is a relationship between directed work and undirected work, much undirected work is important in its own right and will not necessarily be directly linked to the directed time in the sense that a failure to work for the day will lead to a proportionate reduction in the undirected work done. This is clear from the vast variety of Professional Duties identified in the Red Book under the heading of Other Activities and not Teaching [18 20, 44 46]. Therefore, in the appellants case, section 2 of the Act deems that their salaries accrue at an equal daily rate and this is not excluded by section 7. The respondent was therefore only entitled to make deductions from the appellants pay at a rate of 1/365 of their annual salary [47 49].

The issue in this appeal is whether a local authority (ZCC) should be ordered to disclose social work records to the parties in proceedings concerning a child (A), which would reveal the identity of a young woman (X) who has made allegations that she suffered sexual abuse from As father (F) when she was a child. The parents of A separated when she was a baby. A lives with her mother (M) and F had unsupervised contact with her. When ZCC became aware of Xs allegations, which had been reported to ZCC by others, it approached M and advised her that she should take steps to protect A from the risk of sexual abuse by F. It did not tell M who had made the allegations, nor the details of what was alleged, but said they regarded them as credible. M applied to vary the contact arrangements so as to restrict Fs contact with A to supervised contact. F denies that he has sexually abused anyone. The court directed that ZCC should disclose the information in its possession in relation to Xs allegations against A to M and F. ZCC applied to the court for the order to be discharged on the grounds of the severe distress and emotional harm which the removal of her anonymity would cause X to suffer. Medical evidence provided to the court from the psychiatrist treating X indicated that her physical health had deteriorated to the point of being life threatening as result of stress; that disclosure of the records would be potentially detrimental to her health and that being required to participate in the contact proceedings would be immensely stressful for her, even with measures taken to protect her as a vulnerable witness. Peter Jackson J in the High Court held that the records should not be disclosed. In his view disclosure was unlikely to achieve anything valuable and it would be oppressive and wrong to compel X to give evidence at a subsequent hearing. The Court of Appeal reversed this decision and ordered disclosure, on the ground that the question of whether X should give evidence would arise for decision at a later stage. By the time of the appeal hearing in the Supreme Court, inadvertent disclosure of Xs identity had been made by ZCC to M and to the Guardian appointed to act on As behalf, but not to F. The Supreme Court unanimously dismisses the appeal. Lady Hale, with whom the other justices agree, gives the only judgment. The court was required to reconcile the irreconcilable. It was submitted on behalf of X that the impact of disclosure on her would be so severe as to violate her right not to be subjected to inhuman or degrading treatment protected by article 3 of the European Convention on Human Rights (ECHR), or at the very least interfere with her right to a private life under article 8. On the other side, As right to be protected from abuse also potentially engaged article 3, and restricting contact interfered with the right to family life under article 8 on the part of A, M and F. In addition, all three of the parties to the contact proceedings A, M and F were entitled to the right to a fair trial of those proceedings protected by article 6. Both article 3 and article 6 rights are absolute. ZCCs records enjoy public interest immunity from disclosure because of the public interest in encouraging members of the public to come forward to help the authorities to protect children, whether witnesses or the victims themselves [15]. The immunity is not absolute, and has to be balanced against the public interest in a fair trial. In children cases, the court may exceptionally take into account material which has not been disclosed to the parties, if disclosure would harm the child, but there was little or not risk of harm to A in this case[21]. But the common law principles have been affected by the Human Rights Act 1998 and the court now has to take account of the interests of third parties whose rights under the ECHR might be violated by disclosure [24]. This was not a case where Xs confidence could be preserved without harming others. Her allegations have to be properly investigated and tested so that A can either be protected from any risk of harm which F may present to her or can resume her normal relationship with him. If this was an ordinary public interest immunity claim, therefore, there would be no question where the balance of public interest would lie [30]. The impact on X meant that the states negative duty to avoid subjecting her to inhuman treatment in breach of article 3 had to be taken into account [31]. However, the context in which this treatment takes place affects the severity of its impact, and here not only was the state acting in support of some important public interests, but X was currently under specialist medical practitioners who would do their utmost to mitigate any further suffering which disclosure would cause her. Thus disclosure alone would not violate Xs rights under article 3 [32]. The court still had to balance Xs rights to a respect for her private life with the interests in disclosure. Courts had no power in ordinary civil proceedings to adopt any form of closed material procedure, which would restrict disclosure of the material to a judge and special advocate for the parties, and even if there was a greater latitude in children cases, the arguments against making such an inroad into the normal principles of a fair trial remained very powerful. Moreover in a case such as this F could not effectively challenge the allegations without a minimum of information which would inevitably disclose Xs identity [34]. The only possible conclusion was that the fair trial and family life rights of A, M and F were a sufficient justification for the interference with the privacy rights of X [35]. It did not follow, however, that X would have to give evidence in person in these proceedings. Disclosure might be enough to resolve matters either way. If a hearing was required, up to date medical evidence would be obtained for X and measures to protect her from courtroom confrontation could be considered. If she was too unwell to cope with oral questioning the court might have to do its best with the record of what she has said previously, perhaps supplemented by written questions put to her in circumstances approved by her doctor. The only concern of the court in family proceedings was to get at the truth [36].

European Arrest Warrants (EAWs) have been issued for the Appellants extradition to Poland, where they are wanted for the purposes of serving sentences of imprisonment. The Appellants extradition to Poland was ordered pursuant to the EAWs, and they have appealed against the orders on the grounds that the EAWs are defective under section 2(6)(c) of the Extradition Act 2003. This requires that an EAW in a conviction case contains particulars of any other warrant issued in the Category 1 territory for the persons arrest in respect of the conviction. Various domestic summonses or warrants were issued in Poland unsuccessful attempts to find and arrest the Appellants there, before the EAWs were issued. The Appellants case is that such domestic summonses or warrants required to be particularised in the EAWs. The High Court dismissed their appeals and certified two questions: (1) Is an EAW defective for the purposes of section 2(6)(c) of the Extradition Act 2003 if it does not also give particulars of domestic warrants issued in the category 1 territory to enforce that judgment or order within the issuing state? (2) Does the term any other warrant issued in the category 1 territory for the persons arrest in respect of the offence in section 2(6)(c) of the Extradition Act 2003 only require the European arrest warrant to include the conviction of the requested person, or does it, following Poland v Wojciechowski [2014] EWHC 412 (Admin), require the particularisation of the decision that required the requested person to serve an immediate sentence of imprisonment and was the decision following which it could be said that the requested person was unlawfully at large? The Supreme Court unanimously dismisses the appeal. Lord Mance gives the leading judgment, with which the other members of the Court agree. Lord Neuberger gives a short concurring judgment. Although the EU Framework Decision, on which the provisions of section 2 of the Extradition Act 2003 are based, does not explicitly distinguish between accusation and conviction cases, in practice there are significant differences in the bases on which EAWs in each category of case will rest [23 24]. In an accusation case, an EAW will normally be based on a domestic arrest warrant whereas in a conviction case, the natural basis of an EAW will be an enforceable judgment [25 26]. Where there exists an enforceable judgment, there is no reason why there should necessarily be any domestic warrant and, if there is, there is no obvious reason why it should be required to be evidenced in the EAW [26]. A domestic warrant may be required in a conviction case where a person is at large when convicted, has absconded, and is wanted for sentencing, and might in such circumstances be regarded as constituting the basis of any EAW issued to secure his surrender for sentencing [27]. But, where a person has been sentenced to an immediate sentence of imprisonment and is due to be in prison but has absconded, there is no obvious reason why there should be any domestic warrant at all or why, if there is one, it should be required to be evidenced in any EAW issued to secure the offenders return to serve his sentence [29]. The circumstances of the present appeals involve sentences of imprisonment which did not take immediate effect. Only the first and third EAWs issued in relation to Mr Sas are presently relevant. As regards the conviction the subject of the first EAW, Mr Sas was free until he lost his appeal, whereupon he was summonsed to report to detention, which he failed to do. A court order later issued to secure his attendance was irrelevant to the enforceability of the sentence, and could not constitute a warrant for the purposes of section 2(6)(c), and did not therefore need to be particularised in the EAW [31]. As regards the conviction the subject of the third EAW relating to Mr Sas, Mr Sas was given an immediate sentence of imprisonment but granted conditional release which was revoked when he breached the conditions of his release. When he failed to surrender, a domestic warrant was issued for his arrest [33]. As regards the conviction the subject of the EAW relating to Mr Goluchowski, the sentences of imprisonment passed were suspended, but ordered by the court to be served when he broke certain conditions. In these circumstances, both Appellants were due to attend prison without more as a result of court orders, and only when they failed to obey those orders were any domestic court orders, summonses or warrants issued to secure attendance at the relevant correction facility [32]. Those summonses or warrants are therefore irrelevant to the EAWs, did not need mentioning in them and did not constitute warrants under section 2(6)(c) of the 2003 Act [34]. It was not necessary for the EAWs to contain evidence of the decisions resulting in suspension of Mr Goluchowskis original sentence and subsequent activation of it, nor of Mr Sass conditional release and the subsequent revocation of that [35, 42 44]. On the face of the EAWs, details are given of judgments which by themselves required the Appellants to begin immediate service of a sentence [36]. Though they do not contain details of every judicial decision by virtue of which the sentence has become enforceable, to require such details would (i) mean that an EAW should set out a quite complex history of proceedings whereas box (b) of the prescribed form of EAW contemplates a single reference, (ii) run counter to principles of mutual confidence on which the EAW regime is based, and (iii) overlook the fact that it is always open to an executing state to request more information from the requesting state, as the UK seems to have done in these cases [43]. But a final decision on the extent of the details required is unnecessary since the processes by which the judgments became enforceable is clear from the subsequently obtained information, and EU caselaw establishes that an otherwise valid EAW is not to be treated as invalid or ineffective merely because the full history is not contained in the EAW itself [44]. Even if a reference to the activating decisions should, strictly speaking, have been made in the EAWs alongside the reference to the judgment as enforceable, this cannot mean, under European law or the Extradition Act 2003, that the EAWs should be treated as incapable of being executed [45].

The appellants are the executors of Mrs Beryl Coulter, who died in Jersey on 9 October 2007, leaving her residuary estate on trust for charitable purposes (the Coulter Trust). The appellants were domiciled in Jersey and the will specified that the trust was to be governed by Jersey law. The estate included substantial assets in the United Kingdom. In October 2010, the appellants retired as trustees (but not as executors) and were replaced by a UK resident trustee. The will was amended to make the proper law of the Coulter Trust the law of England and Wales. In 2014, the Coulter Trust was registered as a charity under English law. In 2013, Her Majestys Revenue and Customs (HMRC) determined that Mrs Coulters gift to the Coulter Trust did not qualify for the relief from inheritance tax in respect of gifts to charities provided by section 23 of the Inheritance Tax Act 1984. This was because section 23 limited relief to trusts governed by the law of a part of the United Kingdom, the Coulter Trust was governed by the law of Jersey at the date of Mrs Coulters death, and Jersey was not a part of the United Kingdom for the purposes of section 23. The appellants appealed against HMRCs determination on the basis it is incompatible with article 56 of the Treaty Establishing the European Community (EC) (now article 63 of the Treaty on the Functioning of the European Union (TFEU)), which prohibits restrictions on the free movement of capital between EU member states, and between member states and third countries. HMRC argues that article 56 does not apply here because a movement of capital between the United Kingdom and Jersey should be regarded as an internal transaction taking place within a single member state. The Court of Appeal accepted the appellants submission that Jersey is to be regarded as a third country for the purposes of article 56, but decided that the restriction of section 23 to trusts governed by the law of part of the United Kingdom was nevertheless justifiable under EU law. The issues arising in this further appeal are: (1) whether a movement of capital between the United Kingdom and Jersey should be regarded as an internal transaction taking place within a single member state for the purposes of article 56; and (2) if not, whether the refusal of relief under section 23 in respect of the gift to the Coulter Trust is justifiable under EU law. The Supreme Court unanimously allows the appeal. Lord Reed and Lord Lloyd Jones give the judgment, with whom all members of the Court agree. Article 56 prohibits all restrictions on payments or the movement of capital between member states, and between member states and third countries. It is common ground between the parties that article 56 applies to gifts to charities and that Jersey is not a member state. The issue therefore turns on whether Jersey is to be regarded as a third country [7]. The Bailiwick of Jersey is a Crown Dependency which, along with the other Channel Islands, enjoys a unique relationship with the United Kingdom through the Crown [8]. Jersey is not an independent state in international law; the UK government is responsible for its international relations and has the power to extend to Jersey the operation of a treaty concluded by the United Kingdom [10]. Article 29 of the Vienna Convention on the Law of Treaties 1969 provides that a treaty is binding upon each party in respect of its entire territory unless a different intention is expressed [11]. Article 299(1) EC (now article 355 TFEU) makes express provision for the territorial scope of EU law [13]. Protocol 3 to the Treaty of Accession 1972 provides that the free movement of goods applies to the Channel Islands [14]. However, other rules of EU law do not apply in Jersey, including the EU rules on free movement of capital [15]. Decisions of the Court of Justice of the European Union (the CJEU) provide a systematic and consistent approach to this issue. The question of whether a territory is to be regarded as a third country is context specific and will depend on whether, under the relevant Treaty of Accession and supplementary measures, the relevant provisions of EU law apply to that territory [35]. The decision of Prunus SARL v Directeur des services fiscaux (Case C 384/09) [2011] I ECR 3319, in which the CJEU held that the British Virgin Islands were to be treated as third countries, is determinative of the issue in the present case [36]. Jersey is to be considered a third country for the purpose of a transfer of capital from the United Kingdom [37]. Accordingly, EU rules on the free movement of capital do apply to transfers of capital between the United Kingdom and Jersey, and it is accepted that the refusal of relief under section 23 is a restriction on that free movement. The remaining question is therefore whether the restriction is justifiable under EU law [38]. On its face, section 23 does not impose any restriction on the free movement of capital and is therefore compliant with article 56 [50]. The only restriction is that imposed by the judicial gloss placed on the words now found in section 989 of the Income Tax Act 2007 by the House of Lords in Camille and Henry Dreyfus Foundation Inc v Inland Revenue Comrs [1956] AC 39 (Dreyfus) a restriction which, when incorporated into section 23, has the effect of confining relief under that provision to trusts governed by the law of a part of the United Kingdom and subject to the jurisdiction of the UK courts. There can be no doubt that the Dreyfus gloss on section 989, as applied to section 23, is incompatible with article 56. It is plain that the restriction of relief from inheritance tax to trusts governed by the law of a part of the United Kingdom cannot be justified under EU law [51]. Article 56 is directly applicable and must be given effect in priority to inconsistent national law, whether judicial or legislative in origin. The Dreyfus gloss on section 989 cannot be applied to section 23 in situations falling within the scope of article 56. Since it is undisputed that the Coulter Trust satisfied the conditions at the time, it follows that it qualifies for the relief [52].

This appeal concerns the defence of illegality. The Supreme Court is asked to decide whether the appellant, Ms Henderson, can claim damages for loss she has suffered as a result of her conviction for her mothers manslaughter from the respondent, Dorset Healthcare University NHS Foundation Trust (Dorset Healthcare). Ms Henderson suffers from paranoid schizophrenia or schizoaffective disorder. In August 2010, she was under the care of the Southbourne community mental health team, which was managed and operated by Dorset Healthcare. On or around 13 August 2010, Ms Hendersons condition began to deteriorate. On 25 August 2010, she stabbed her mother to death whilst experiencing a serious psychotic episode. Ms Henderson was convicted of manslaughter by reason of diminished responsibility. In her criminal trial, the judge said that there was no suggestion that Ms Henderson should be seen as bearing a significant degree of responsibility for what she had done. The judge sentenced Ms Henderson to a hospital order under section 37 and an unlimited restriction order under section 41 of the Mental Health Act 1983. She has remained in hospital ever since, and is not expected to be released for some time. Ms Henderson brought a negligence claim against Dorset Healthcare, seeking damages for personal injury and other loss and damage. Dorset Healthcare admitted liability for its negligent failure to return Ms Henderson to hospital when her psychiatric condition deteriorated. It accepted that, if it had done this, the tragic killing of Ms Hendersons mother would not have taken place. However, it argued that Ms Hendersons claim is barred for illegality, because the damages she claims result from: (i) the sentence imposed on her by the criminal court; and/or (ii) her own criminal act of manslaughter. Similar claims for damages to those made by Ms Henderson were held to be irrecoverable by the House of Lords in Gray v Thames Trains Ltd [2009] UKHL 33; [2009] AC 1339 (Gray). The recoverability of the damages claimed was, therefore, ordered to be tried as a preliminary issue. The High Court judge determined the preliminary issue in favour of Dorset Healthcare, and the Court of Appeal dismissed Ms Hendersons appeal. Both the High Court and the Court of Appeal held that the facts of Ms Hendersons claim are materially identical to those in Gray, which was binding upon them. Ms Henderson appealed to the Supreme Court. The appeal raises the question of whether Gray can be distinguished and, if not, whether it should be departed from, in particular in the light of the more recent Supreme Court decision concerning illegality in Patel v Mirza [2016] UKSC 42; [2017] AC 467 (Patel). The Supreme Court unanimously dismisses Ms Hendersons appeal, and holds that her claim against Dorset Healthcare is barred by the illegality defence. Lord Hamblen gives the judgment, with which all members of the Court agree. Ms Hendersons appeal raises three main issues [32]. Issue 1: Can Gray be distinguished? In Gray, the House of Lords held that Mr Grays negligence claim was barred by the defence of illegality because the damages he sought resulted from: (i) the sentence imposed on him by the criminal court; and/or (ii) his own criminal act of manslaughter [36]. The courts below held that the facts of Ms Hendersons and Mr Grays claims are materially identical, so Ms Hendersons claim is barred for illegality for the same reasons as Mr Grays [30 31]. However, Ms Henderson argues that the reasoning in Gray does not apply or can be distinguished, because Gray concerned a claimant with significant personal responsibility for his crime. In contrast, in Ms Hendersons criminal trial, the judge said that there was no suggestion that Ms Henderson should be seen as bearing a significant degree of responsibility for what she had done [82]. The Court rejects Ms Hendersons argument and finds that Gray cannot be distinguished. The crucial consideration in Gray was that the claimant had been found to be criminally responsible for his conduct, not the degree of personal responsibility which that reflected [83 86]. Lord Phillips reserved judgment in Gray on whether the illegality defence would apply to a case where the claimant did not bear significant personal responsibility for their crime, but this was not the view of the majority [79 81]. Issue 2: Should the Court depart from Gray? In Patel, the Supreme Court held that the proper approach to the illegality defence at common law was one based on a balancing of public policy considerations rather than a reliance based approach [61]. The majority held the underlying policy question to be whether allowing recovery for something which is illegal would produce inconsistency and disharmony in the law and so cause damage to the integrity of the legal system. In assessing whether the public interest would be harmed in that way, the court should consider a trio of considerations, namely: stage (a) the underlying purpose of the illegality in question, and whether that purpose would be enhanced by denying the claim; stage (b) any other relevant public policy on which denying the claim may have an impact; and stage (c) whether denying the claim would be a proportionate response to the illegality [66 68, 113]. With regard to the application of Patel, the Court confirms, first, that it concerned common law illegality rather than statutory illegality [74]; secondly, that although it concerned a claim in unjust enrichment, the Courts decision provides guidance on the proper approach to the common law illegality defence across civil law generally [76]; and thirdly that the principles identified in Patel are derived from the pre existing case law and earlier decisions on the illegality defence remain of precedential value, unless they are incompatible with the Courts reasoning in Patel [77]. Ms Henderson contends that the Court should depart from Gray on three grounds. The first ground is that the reasoning in Gray is incompatible with the approach to illegality adopted by the Supreme Court in Patel. The Court finds, however, that the essential reasoning in Gray is consistent with Patel, and so remains good law [89 96]. The second ground is that Gray should not apply where the claimant has no significant personal responsibility for the criminal act and/or there is no penal element in the sentence imposed on them by the criminal court [97 103]. The Court rejects this argument because allowing a claimant to recover damages for loss that results from: (i) the sentence imposed by the criminal court; and/or (ii) an intentional criminal act for which the claimant has been held to be criminally responsible would give rise to inconsistency that is damaging to the integrity of the legal system. The criminal under the criminal law would become the victim under the civil law [106]. Requiring the civil court to assess whether or not a civil claimant has a significant degree of personal responsibility for their crime would create a clear risk of inconsistent decisions being reached in the criminal and civil courts [108]. In any case, it is unclear why significant personal responsibility is the appropriate threshold, and how the civil courts should decide whether a claimant meets that threshold [110 111]. There may be some exceptional trivial or strict liability offences which do not engage the illegality defence. However, the serious criminal offence of manslaughter by reason of diminished responsibility is not one of those exceptions [112]. The third ground is that Ms Hendersons claim would be allowed under the trio of considerations approach in Patel [113 116]. With regard to the trio of considerations, the Court confirms first that they should usually be capable of being addressed as a matter of argument and at a level of generality that does not make evidence necessary [115]; secondly, that they involve a balancing between policy considerations arising under stages (a) and (b) and that stage (c) relates to proportionality and factors specific to the case rather than general policy considerations [116 120]; thirdly, that, where they arise, it is appropriate to give great weight to the policy considerations that a person should not be allowed to profit from his own wrongdoing and that the law should be coherent [121 122]; fourthly, that where the policy considerations come down firmly against denial of the claim it will not be necessary to consider stage (c) and proportionality [123]; and fifthly, that in relation to proportionality, centrality and the closeness of the causal link between the illegality and the claim will often be factors of particular importance [124]. In relation to stage (a), the policy reasons which support denial of Ms Hendersons claim include the consistency and public confidence principles identified in Gray [119, 125 126]. They also include: (i) the gravity of her criminal offence; (ii) the public interest in the proper allocation of NHS resources; (iii) the very close connection between her claim and her offence; and (iv) the public interest in deterring, protecting the public from and condemning unlawful killing [127 129]. Although a claimant in Ms Hendersons position may not be deterred from unlawful killing by being deprived of a civil right to compensation, there may well be a broader deterrent effect in a clear rule that unlawful killing never pays. Any such effect is important given the fundamental importance of the right to life. To have such a rule also supports the public interest in public condemnation and due punishment [130 131]. In relation to stage (b), the policy reasons relied upon for allowing Ms Hendersons negligence claim do not begin to outweigh those which support the denial of the claim. In particular, as Gray makes clear, the resulting inconsistency in the law is such as to affect the integrity of the legal system and the underlying policy question identified in Patel is accordingly engaged [137]. In relation to stage (c), the four factors relevant to proportionality identified in Patel do not show that denial of the claim would be disproportionate [138 143]. It follows that the trio of considerations approach in Patel does not lead to a different outcome in Ms Hendersons case [144]. Gray should therefore be affirmed as being Patel compliant and should be applied and followed in similar cases [145]. Issue 3: Can Ms Henderson recover damages for any of the heads of loss she has claimed? The Court answers this question no. Ms Henderson cannot claim damages for loss of liberty or for loss of amenity during her detention in hospital because these heads of loss result from the sentence imposed on her by the criminal court. The other heads of loss cannot be recovered because they result from Ms Hendersons unlawful killing of her mother [148]. It would be inappropriate for the Court to subvert the operation of the Forfeiture Act 1982, which prevents Ms Henderson from recovering her full share of her mothers estate [149].

This case concerns a secure weekly tenancy of a house granted to a husband and wife, Mr and Mrs Sims, as joint tenants, by Dacorum Borough Council. A secure periodic tenancy can only be brought to an end by a landlord by obtaining and executing a court order for possession. By contrast, there is no such restriction on the ability of a tenant to exercise a common law right to bring a periodic secure tenancy to an end by serving a notice to quit on the landlord. Following the decision of the House of Lords in Hammersmith and Fulham LBC v Monk [1992] Ac 478 (Monk), a periodic tenancy held by joint tenants may be validly brought to an end by only one of the joint tenants serving a notice to quit on the landlord. Under the terms of the tenancy agreement in this case it was specifically provided in clause 100 that, if either of the joint tenants wished to terminate their interest in the tenancy, they were required to terminate the full tenancy. Clause 101 provided that Dacorum would then decide whether the other joint tenant could remain in the property or be offered more suitable accommodation. Mr and Mrs Sims separated, and Mrs Sims served a notice to quit on Dacorum. Dacorum therefore contends that the secure tenancy has come to an end, and Mr Sims must vacate the house. Monk was decided before the Human Rights Act 1998 was enacted. Mr Sims contends that his right to a private and family life under Article 8 of the European Convention on Human Rights and his right peacefully to enjoy his possessions under Article 1 of the first protocol to the Convention would be wrongfully infringed if Dacorums claim were to succeed. The issue in this appeal is therefore whether the eviction of Mr Sims would be a wrongful infringement of his rights either: The Supreme Court unanimously dismisses the appeal. Lord Neuberger (with whom the other Justices agree) gives the only judgment. In his written case and oral submissions, counsel for Mr Sims retreated from the suggestion that the Supreme Court should revisit the decision in Monk, but maintained that the effect of that decision in the present case infringed Mr Sims rights under Article 8, or under A1P1 Article 1 of the first protocol to the European Convention of Human Rights [14 19] (1) under Article 1 of the first protocol to the Convention (A1P1); or (2) under Article 8 of the Convention. Under A1P1, everyone is entitled to peaceful enjoyment of his possessions and nobody should be deprived of his possessions except in the public interest and subject to conditions provided for by law [14]. Clause 100 provided that the tenancy could be determined by one only of the tenants and Clause 101 provided that if that occurred, Dacorum could decide to permit him to stay in the house. In this case, Mrs Sims determined the tenancy in accordance with clause 100 and Dacorum did consider whether to let Mr Sims remain in accordance with clause 101 and decided not to let him do so. The way in which Mr Sims was deprived of his property was thus specifically provided for in the agreement which created the property, that is, his interest in the tenancy. He lost this property right as a result of the bargain that he himself made. [15 16]. In these circumstances, the only arguments Mr Sims could raise would be either (1) that clause 100 is irrational or so unreasonable as to offend the right to enjoy the property concerned or (2) that Dacorum unfairly or irrationally operated clause 101. However, clause 100 is consistent with the common law principle in Monk, and the effect of clause 100 is mitigated by clause 101. The effect of Monk for a joint tenant in Mr Sims position is harsh. However, when one of two joint periodic tenants serves a notice to quit, someones interest has to suffer; if the position were otherwise than it is under Monk, there would be a harsh result for the other joint tenant or for the landlord [17]. The Deputy District Judge considered Dacorums operation of clause 101, and concluded that procedurally Mr Sims had been accorded ample opportunity to present his case and that Dacorum had carefully considered the position and had fully reviewed its own decision. In light of the Deputy District Judges conclusions of primary fact, she reached the only appropriate conclusion she could have reached, namely that Dacorums operation of clause 101 was reasonable. In these circumstances, Mr Sims case based on A1P1 fails. [18 19]. Article 8 of the European Convention of Human rights [20 25] Under Article 8.1 of the Convention, everyone is entitled to respect for his private life [and] his home and Article 8.2 provides that there should be no interference by a public authority with the exercise of this right save if is in accordance with the law, necessary in a democratic society, and in the interests of the economic well being of the countryor for the protection of the rights or freedoms of others [20]. Mr Sims was entitled to raise the question of the proportionality of Dacorums pursuit of the claim for possession of the house in light of previous decisions of the House of Lords and Supreme Court. However, proportionality does not assist Mr Sims. The Deputy District Judge carefully assessed Dacorums decision making process and she was plainly correct that it was lawful and proportionate to make an order for possession in this case [21]. Service of the notice to quit put at risk Mr Sims enjoyment of his house which had been his family home for many years. However, Mr Sims Article 8 rights were accorded full respect, given that (1) his tenancy was determined in accordance with agreed contractual terms, (2) he received the benefit of clause 101, (3) under the Protection from Eviction Act 1977 he could not be evicted with a court order, (4) the court would have to be satisfied that Dacorum was entitled to evict him, and (5) the court could not make such an order without permitting him to raise a claim that it would be disproportionate to evict him[22 23]. Accordingly, Mr Sims case cased on Article 8 fails [24 25].

The issue in this appeal is the proper approach of the courts when a defendant to a claim for possession of his home raises a defence of unlawful discrimination by the landlord, contrary to the Equality Act 2010 (the EA); in particular, whether such defences may be dealt with in the same way as defences alleging a breach of the rights to respect for the home protected by Article 8 of the European Convention on Human Rights. The appellant is a 47 year old man. He has chronic and severe mental ill health amounting to a disability for the purposes of the EA. He became homeless in 2010 and under the Housing Act 1996 the local housing authority was under a duty to secure accommodation for him. That duty would cease if he refused an offer of suitable accommodation elsewhere. The appellant was placed in a flat in a building in Glastonbury leased by the respondent housing association and numerous attempts were made to find an acceptable home for his permanent occupation over the next nine months. He refused them all so in April 2011 the local authority notified him that the duty to house him had been discharged. The respondent served notice on him to quit the flat and issued a claim for possession. The appellants defence was that a possession order would (i) amount to disability discrimination and (ii) breach his Article 8 rights, and it was supported by medical evidence of his vulnerability and need for intensive therapy. During the course of the proceedings the local authority came under a duty to house him again after the appellant made a fresh homelessness application in December 2011. The duty ended after he was offered, but refused, an offer of a property in the same road as the flat, in which he was still living. The respondent applied to reinstate the proceedings and a preliminary hearing took place in June 2013 in the Bristol County Court to decide whether or not the appellant could raise his defence. The judge took the same approach to both grounds and held summarily that neither defence was arguable. The appellants appeals from this decision were dismissed in the courts below. In May 2014 the freeholder of the building in which the appellant has his flat served notice to quit on the respondent. The respondent is therefore now in breach of its legal obligation to give vacant possession of the flat so that the building can be sold. The Supreme Court unanimously dismisses the appeal. Lady Hale, Lord Neuberger and Lord Wilson give substantive judgments stating the applicable principles and holding that the judge misdirected himself in adopting the same approach to the defence of disability discrimination as to the alleged breach of Article 8. However, for the reasons given by Lord Wilson, supervening events mean that the matter should not be remitted to the court below, as an order for possession is now inevitable. A complaint of disability discrimination under s 15 EA in response to an eviction raises two key questions: (i) whether the eviction is because of something arising in consequence of the complainants disability; and (ii) whether the landlord can show that the eviction is a proportionate means of achieving a legitimate aim [18]. A court considering whether an eviction is proportionate when a defence under Article 8 is raised can assume that an order would meet the legitimate aims of vindicating a local authoritys property rights and of enabling the authority to comply with its statutory duties in the allocation and management of the housing stock available to it. In virtually every case there will be a strong case for finding that the possession order would be a proportionate means of achieving those aims. Thus as a general rule the defence should be considered summarily and only be allowed to proceed if it crosses the high threshold of being seriously arguable [20 22, 52]. The substantive right to equal treatment protected by the EA is different from and extra to the Article 8 right: it applies to private as well as public landlords; it prohibits discriminatory treatment, for example, by evicting a black person where a white person would not be evicted; and it grants additional rights to disabled people to reasonable adjustments to meet their particular needs. It cannot be taken for granted that the aim of vindicating the landlords property rights will almost invariably make an eviction proportionate: the protection afforded by s 35(1)(b) EA is plainly stronger than that given by Article 8 [31, 55 58]. The burden will be on the landlord to show that there were no less drastic means available and that the effect on the occupier was outweighed by the advantages [34]. Summary disposal may still be appropriate, but not in cases where a claim is genuinely disputed on grounds that appear to be substantial, where disclosure or expert evidence might be required [36, 60]. In the appellants case, the judge misdirected himself and adopted the wrong approach. He should have undertaken the proportionality assessment himself in relation to each defence, and he wrongly regarded this exercise as the same for the discrimination defence as for the Article 8 defence [38]. There was no point however in allowing the appeal and remitting it to the county court. The notice to quit that has since been served by the freeholder of the building means that the respondent is in breach of its legal obligations and leaves the freeholder unable to proceed with the proposed sale [71]. The appellants disability has also caused him to refuse undeniably suitable accommodation in the same street and there is no evidence that he has embarked on the therapy that is said to be necessary to allow him to accept the need for change [74]. These supervening events mean that a possession order would be inevitable. It would be unjust to the respondent and the freeholders and no kindness to the appellant to prolong matters further [41, 75 76].

This appeal relates to the UKs ability to deport the appellant, a Zimbabwean citizen, who, while lawfully resident here, has committed serious crimes. He seeks to challenge the order for his deportation by reference to article 3 of the European Convention on Human Rights (the Convention), which provides: No one shall be subjected to torture or inhuman or degrading treatment or punishment. He is HIV positive and wishes to argue that if deported to Zimbabwe he would be unable to access the medication which he receives in the UK and which prevents his relapse into full blown AIDS. The appellant was born in Zimbabwe in 1987. He came to the UK in 2000 and was later granted indefinite leave to remain. He was convicted of battery and a deportation order was made against him. He was detained pending deportation but was released. He was then convicted of offences including possession of a firearm and ammunition and sentenced to further imprisonment. While in prison, he applied to the Secretary of State to revoke the deportation order. He invoked his right to respect for private and family life under article 8 of the Convention and argued that his medical condition was relevant. His evidence was as follows. He had been diagnosed as HIV positive. He had later undergone antiretroviral therapy (ART), initially with a drug that caused intolerable side effects but later with another drug, Eviplera, which had improved his condition without significant side effects. Whether he could access ART in Zimbabwe was doubtful; without it, he would be prey to infections which could lead to his death. After considering the evidence, the Secretary of State refused to revoke the order. The appellant appealed to the First tier Tribunal and then the Upper Tribunal, relying each time on article 8. He conceded that, in the light of the House of Lords decision in N v Secretary of State for the Home Department [2005] UKHL 31, [2005] 2 AC 296, his appeal could not succeed by reference to article 3. Before the hearing in his appeal to the Court of Appeal, the Grand Chamber of the European Court of Human Rights (the ECtHR) delivered its judgment in Paposhvili v Belgium [2017] Imm AR 867. The appellant formed the view that the judgment had expanded the scope of application of article 3 in cases like his and decided to seek a rehearing before a tribunal at which he could rely on it instead of article 8. He conceded in the Court of Appeal, however, that it was bound by the N case, even if that had become out of step with the ECtHRs case law as a result of Paposhvili. The Court of Appeal duly dismissed his appeal. He now appeals to the Supreme Court, asking it to depart from the N case by reference to Paposhvili and to remit his application for rehearing by reference to article 3. The Supreme Court unanimously allows the appeal. It remits the appellants claim under article 3 to be heard by the Upper Tribunal (and, if practicable, by a panel including its President) on up to date evidence properly directed to the substantive and procedural requirements set out by the Grand Chamber of the ECtHR. Lord Wilson gives the only judgment, with which the other Justices agree. In D v United Kingdom (1997) 24 EHRR 423, the ECtHR held that to remove a man who was on his deathbed to a state where no care was available for him would violate article 3; and it referred to the exceptional circumstances and compelling humanitarian considerations in his case [14]. In the N case, the House of Lords considered the ECtHRs decision in this case and others like it concerning article 3. It held that the test in such cases was whether the applicants illness had reached such a critical stage that it would be inhuman to deprive him of the care he was receiving and to send him to an early death in the receiving state, unless there was care available there to enable him to meet it with dignity [15 17]. In N v United Kingdom (2008) 47 EHRR 39, the ECtHR held that, although there might be other very exceptional cases in which the humanitarian considerations are equally compelling to those in the D case, a high threshold for violation of article 3 should be maintained [18]. In Paposhvili, the ECtHR reconsidered what those other very exceptional cases were. It held (at para 183) that they should now be taken to include cases in which there were substantial grounds for believing that the applicant, while not at imminent risk of dying, would face a real risk in the receiving country of being exposed either to a serious, rapid and irreversible decline in health resulting in intense suffering, or to a significant reduction in life expectancy [22]. According to the Court of Appeal in the present case, the test for violation of article 3 following Paposhvili is no longer whether death is imminent in the removing state, but whether intense suffering or death is imminent in the receiving state because treatment is unavailable there [29]. The Court of Appeal was, however, mistaken in taking the ECtHRs phrase, a significant reduction in life expectancy, to mean the imminence of death [30]. But what does the phrase mean? Significant here means substantial: only a substantial reduction in life expectancy would reach the level of severity required by article 3. In addition, a reduction in life expectancy to death in the near future is more likely to be significant than any other reduction [31]. In Paposhvili, the ECtHR also set out requirements (at paras 186 to 191) for the procedure to be followed in relation to applications under article 3 to resist return by reference to ill health [23, 32]. One requirement is for the applicant to adduce evidence capable of demonstrating that there are substantial grounds for believing that, if removed, he or she would be exposed to a real risk of being subjected to treatment contrary to article 3. That is a demanding threshold for the applicant. His or her evidence must be capable of demonstrating substantial grounds for believing that it is a very exceptional case because of a real risk of subjection to inhuman treatment. He or she must put forward a case which, if not challenged or countered, would establish a violation of the article [32]. If the applicant presents evidence to that standard, the returning state can seek to challenge or counter it. Paposhvili states that, in doing so, the returning state must dispel any doubts raised by the evidence; but any doubts here should be read to mean any serious doubts [33]. The court should only refuse to follow a decision of the ECtHR in highly unusual circumstances, and there is no question of the courts refusing to follow Paposhvili. In the light of that judgment, the court should now depart from the decision of the House of Lords in the N case [34]. The appellant first raised his article 3 claim in the Court of Appeal and, having accepted that it could not succeed at that level, he did not present evidence to support it. It was inappropriate for the Court of Appeal to extract medical reports from the evidence submitted in support of his article 8 claim, which did not address the Paposhvili requirements [36]. The court should not now determine whether the reports cross the threshold required of an applicant under article 3 following Paposhvili. The proper course is to allow the appeal and to remit the article 3 claim to be heard on up to date evidence [37].

AMT Futures Limited (AMTF) is incorporated in the United Kingdom and is based in London. It provides services as a derivatives broker for clients who wish to trade in derivatives and who are referred by introducing brokers. Among AMTFs former clients were people domiciled in Germany, Austria, Switzerland or Belgium and who were introduced to AMTF by independent brokers based in Germany. AMTF charged its clients commission for its service and paid commission to the introducing brokers. Some of AMTFs former clients, who were dissatisfied with the financial results of their transactions, commenced legal proceedings in Germany against both the introducing brokers and AMTF seeking damages under the German law of delict. The claim against the introducing brokers was that they had given bad investment advice or had failed to warn of the investment risks. The claim against AMTF was that it had encouraged the brokers to behave as they did by paying them commission and had therefore breached a duty in tort which it had owed to the former clients to prevent any transactions being undertaken contrary to their interests. AMTF challenged the jurisdiction of the German court. AMTF estimates that by August 2013 it had spent over 2 million on investigating the claims, legal costs and settlement costs. The contracts between AMTF and its former clients contained clauses which provided that English law would govern the rights and obligations of the contracting parties and the construction of their contract and that the English courts would have exclusive jurisdiction in legal proceedings relating to the contract. AMTF asserts that the former clients have breached their contracts by raising legal proceedings against it in Germany and asserting rights under the German law of delict. AMTF has raised legal proceedings against the former clients, seeking damages for breach of contract in the High Court in London. AMTF alleges that MMGR, a German company which carries on business as a firm of lawyers in Germany, induced the former clients to issue proceedings against AMTF in Germany in breach of the exclusive jurisdiction and applicable law clauses in their contracts with AMTF. AMTF commenced proceedings in the High Court in London against MMGR, based on the English law tort of inducing breach of contract and seeking both damages and injunctive relief to restrain MMGR from inducing clients to bring further claims in Germany. The question in the appeal is whether the English courts have jurisdiction under Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Judgments Regulation) to hear AMTFs claim against MMGR. AMTF argued that the English courts had jurisdiction under article 5.3 of the Judgments Regulation. Article 5.3 provides that jurisdiction will be established in matters relating to tort, delict or quasi delict, in the courts for the place where the harmful event occurred or may occur. It argued that the harm it suffered was the deprivation of the contractual benefit of dispute resolution in England under English law and therefore the harmful event occurred in England. AMTF also argued that a special rule should apply for the purposes of article 5.3 when the tort of inducing breach of contract occurred in the context of an exclusive jurisdiction clause. Foreseeability would be achieved by locating the harm in the jurisdiction of the contractually adopted court. AMTF requested a reference be made to the Court of Justice of the European Union (CJEU) seeking guidance on whether article 5.3 establishes the jurisdiction of the English courts in such circumstances. The Supreme Court unanimously dismisses AMTFs appeal. Lord Hodge gives the judgment, with which the other Justices agree. The aim of the Judgments Regulation is to prevent parallel proceedings between courts of different member states and thereby avoid or limit irreconcilable judgments and non recognition of judgments [11]. Derogations, including article 5.3, from the general rule under article 2 which confers jurisdiction on the courts of the defendants domicile must be restrictively interpreted to achieve this aim [13]. Article 5.3 requires the court to identify where the relevant harm occurred. That is straightforward in this case as, unlike the cases which required the CJEU to develop special rules, it is possible readily to identify one place where the harm occurred [24]. The raising of the German proceedings was the event which gave rise to the damage for the purposes of article 5.3 [25]. The direct harm which AMTF suffered from the alleged tort was the expenditure occasioned by the German proceedings. Thus the place where the harmful event occurred was Germany. Article 5.3 is not concerned with consequential loss such as the loss of focus on the appellants business in London [27]. It would be contrary to CJEU jurisprudence for the court to craft a special rule for the tort of inducing breach of contract where the contractual clause which has been breached is an exclusive jurisdiction clause [28]. It is the occurrence of the direct and immediate harm which is the connecting factor in article 5.3 and which creates the benefits of foreseeability and the sound administration of justice. Those benefits are not themselves connecting factors and a claimant cannot merely invoke those benefits to justify the establishment of a ground of jurisdiction under the Judgments Regulation [29]. A focus on the accessory nature of the tort of inducing breach of contract does not assist [30]. The fact that a claim in tort is connected with a contractual claim has not led the CJEU to elide the grounds of jurisdiction in matters relating to a contract with those in matters relating to tort [31]. Nor does the inconvenience of separating the resolution of the contractual claims against the former clients from the pursuit of the claims against MMGR assist [30]. That inconvenience is the price of achieving the legal certainty and foreseeability which are among the principal aims of the Judgments Regulation [35]. CJEU Reference The circumstances which have caused the CJEU to develop special rules to interpret article 5.3 in order to identify the place where the harmful event occurred do not arise in this case, in which there is no difficulty in locating where the relevant harm has occurred [38]. Recent CJEU case law does not suggest that the court has moved away from the principles and approach underpinning the Judgments Regulation [40]. The matter is acte clair and no reference is mandated [43].

This appeal concerns the use of a closed material procedure (CMP) in the Supreme Court. A CMP involves the production of material which is so confidential and sensitive that it requires the court not only to sit in private, but to sit in a closed hearing. At a closed hearing, the court considers the material and hears submissions about it without one of the parties to the appeal seeing the material or being present, although that partys interests are protected, at least to an extent, by the presence of special advocates who make such submissions as they can on behalf of that party. A CMP also involves the court at least contemplating giving a judgment, part of which will be closed and not be seen by one of the parties or the public. Pursuant to various provisions of the Counter Terrorism Act 2008 (the 2008 Act), the Treasury made the Financial Restrictions (Iran) Order 2009 (the 2009 Order), which Parliament subsequently approved. The 2009 Order effectively shut down the United Kingdom operations of Bank Mellat (the Bank) and its subsidiary. Section 63 of the 2008 Act gives any party affected by such an order the right to apply to the High Court to set it aside. The Bank made such an application. The Government took the view that some of the evidence relied on by the Treasury to justify the 2009 Order was of such sensitivity that it could not be shown to the Bank or its representatives. In the High Court, Mitting J accepted the Governments case that justice required that the evidence in question be put before the court and that it had to be dealt with by a CMP. The hearing before him was partly in open court and partly at a closed hearing. Mitting J handed down an open judgment, in which he dismissed the Banks application, and a shorter closed judgment, which was seen by the Treasury, but not by the Bank, and is not publicly available. In the Court of Appeal, the appeal was heard largely by way of an open hearing. However, there was a short closed hearing at which the closed judgment of Mitting J was considered. The Court of Appeal dismissed the Banks appeal in an open judgment, and while it referred in general terms to the closed material in that open judgment, the Court of Appeal found it unnecessary to give a closed judgment. Before the Supreme Court, the Banks appeal was divided into two issues. The first issue concerned the use of a CMP in the Supreme Court. The second issue concerned the Banks appeal against the Court of Appeals decision to approve Mitting Js upholding of the 2009 Order. This judgment is on the first issue. A second judgment is given on the second issue: see Bank Mellat v Her Majestys Treasury (no. 2) [2013] UKSC 39. The Supreme Court decides (i) by a majority of six to three (Lord Hope, Lord Kerr and Lord Reed dissenting), that it is possible for the Supreme Court to adopt a CMP on an appeal, (ii) by a majority of five to four (Lord Hope, Lord Kerr, Lord Dyson, and Lord Reed dissenting), that it was appropriate to adopt a CMP in this appeal. Lord Neuberger gives the judgment of the majority on both (i) and (ii). Closed material procedures in the Supreme Court Section 40(2) of the Constitutional Reform Act 2005 (the 2005 Act) provides that an appeal lies to the Supreme Court against any judgment of the Court of Appeal. That must extend to a judgment which is wholly or partially closed. It would appear to be implicit in the notion that an appeal can be brought against a closed judgment that the appellate court can consider the closed judgment, and, at least at first sight, that could only be done at a closed hearing. That view is reinforced once one considers the other alternative courses of action, all of which are patently unsatisfactory [38] [42]. The notion that the Supreme Court has power to take such a course is reinforced by section 40(5) of the 2005 Act, which gives the Court the power to determine any question necessary for the purposes of doing justice [37]. Therefore, the Supreme Court can conduct a CMP where it is satisfied that it may be necessary to do so in order to dispose of an appeal [43]. It follows that the Supreme Court has the power to entertain a CMP on appeals against decisions of the courts of England and Wales on applications brought under section 63 of the 2008 Act [47]. Where a CMP has been adopted at first instance and in the Court of Appeal, for the Supreme Court to entertain an appeal without considering the closed material would, at least in many cases, not be doing justice, either in the sense of fairly determining the appeal, or in the sense of being seen fairly to determine the appeal [44]. The minority consider that Parliament has not conferred the power to conduct a CMP on the Supreme Court [78],[134]. For the Supreme Court to conduct a CMP would be contrary to the fundamental principle of the common law right to a fair trial [103],[138]. There is a strong presumption that Parliament does not intend to interfere with the exercise of fundamental rights, and it will be understood as doing so only if it does so expressly or by necessary implication [105],[135]. In the 2008 Act, Parliament introduced a CMP for the High Court, the Court of Session, and the Court of Appeal, but did not introduce such a procedure for the Supreme Court [125]. It is inconceivable that it was intended that the Supreme Court should have the power to carry out a CMP while leaving it bereft of the structure and safeguards which were deemed essential for those courts in which such a hearing is expressly permitted [116]. There are alternatives to CMPs in the Supreme Court, and choices to be made in relation to them, which are appropriately made by Parliament after full consideration [137]. Closed material procedure in this appeal Despite strong suspicions that nothing in Mitting Js closed judgment would have any effect on the outcome of the appeal, the majority decided to grant the Treasurys request to hold a CMP to consider it. This was because they could not be sure, without seeing the closed judgment and listening to submissions on it, whether the closed judgment would have any effect on the outcome of the appeal, and there seemed to be a real risk of justice not being seen to be done to the Treasury if the Supreme Court did not proceed to hold a closed hearing [64]. Having held a closed hearing, it turned out that there had been no point in the Supreme Court seeing the closed judgment, because there was nothing in it which could have affected the Supreme Courts reasoning in relation to the substantive appeal on the 2009 Order [65] [66]. Several conclusions can be drawn from this experience, which should be considered by any appellate court considering whether to adopt a CMP and by any advocate considering inviting an appellate court to take such a course [67] [74],[89] [97]. The minority consider that the Treasury fell far short of what was needed to show that a CMP was necessary in this case [90],[130],[139],[145]. This was because (i) the Court of Appeal did not find it necessary to refer to the closed judgment in any detail [91], (ii) there was no closed ground of appeal in this case [92], and (iii) the Treasury failed to indicate how looking at the closed judgment would assist in the disposal of the appeal [93] [96]. A CMP should be resorted to only where it has been convincingly demonstrated to be genuinely necessary in the interests of justice [128],[140]. If the Court strongly suspects that nothing in the closed material is likely to affect the outcome of the appeal, it should not order a closed hearing [144].

These appeals concern the making of orders for possession of a persons home in favour of a local authority. The issue is whether, in circumstances where the occupier is not a secure tenant, the court that makes the order must consider the proportionality of making it. Most residential occupiers of property owned by local authorities are secure tenants under the Housing Act 1985. This restricts the circumstances in which they can be evicted. Certain types of tenancy, however, are excluded from that regime. The case of London Borough of Hounslow v Powell involved one such type: accommodation provided under the homelessness regime in Part VII of the Housing Act 1996. In order to regain possession of such accommodation, domestic law requires only that the local authority must give notice to quit and obtain a court order. Ms Powell, as a homeless person to whom the local authority owed a duty to provide accommodation, had been given a licence to occupy property under Part VII. Rent arrears of over 3,500 accumulated and the local authority issued a claim for possession of the property. The court hearing the claim made an order requiring Ms Powell to give up possession. The cases of Leeds City Council v Hall and Birmingham City Council v Frisby involved a second type of non secure tenancy: introductory tenancies entered into under Part V of the Housing Act 1996. This type of tenancy is designed to provide an initial period of probation. It remains introductory for a period of one year, after which it becomes secure unless the introductory tenancy has been terminated. If the local authority decides to terminate the introductory tenancy the tenant is entitled to a review of that decision, but once the relevant procedures have been gone through section 127(2) of the 1996 Act provides that the court shall make a possession order. Mr Hall and Mr Frisby had both been granted introductory tenancies, by Leeds and Birmingham City Councils respectively. Allegations were made against them of noise nuisance and anti social behaviour. The local authorities served notices indicating their intention to seek possession, which were upheld on review. In possession proceedings the courts found in favour of the local authorities. The three occupiers appealed to the Court of Appeal. They argued that Article 8 of the European Convention on Human Rights, which provides that Everyone has the right to respect for his home, required that the court hearing the possession proceedings must be able to assess the proportionality of making the orders against them. As the court did not do this, there was a breach of their Article 8 right. The Court of Appeal dismissed the appeals and the occupiers appealed to the Supreme Court. The Supreme Court unanimously holds that a court must have power to consider the proportionality of making possession orders under the homelessness and introductory tenancy schemes. In the cases of Powell and Hall the Court allows the appeals and, having considered the facts in the case of Frisby, it dismisses his appeal. Lord Hope and Lord Phillips give judgments. These cases were a sequel to the case of Manchester City Council v Pinnock [2010] UKSC 45. There the Supreme Court held that Article 8 of the European Convention on Human Rights requires that a court, which is being asked to make a possession order against a person occupying under the demoted tenancy scheme in Part V of the Housing Act 1996, must be able to consider whether it would be proportionate to do so. The present cases raised the question of whether that principle applied to the homelessness and introductory tenancy schemes and, if so, how cases of this kind should be dealt with in practice by the courts. The Court held that the principle from Pinnock applied to the homelessness and introductory tenancy schemes: in all cases where a local authority seeks possession of a property that constitutes a persons home under Article 8, the court must be able to consider the proportionality of making the order. [3] The Court then set out general guidance on meeting this requirement. A court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and has crossed the high threshold of being seriously arguable. The threshold will be crossed in only a small proportion of cases. The question then will be whether making an order for possession is a proportionate means of achieving a legitimate aim. Two legitimate aims should always be taken for granted: the making of the order will (a) vindicate the authoritys ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. The authority is not required to plead in advance any more particularised reasons or to advance a positive case that possession would accord with the requirements of Article 8: such a requirement would collapse the distinction between secure and non secure tenancies. Where the local authority has a particularly strong or unusual reason for seeking possession, however, it is entitled to ask the court to take that reason into account and it should plead the reason if it wishes the court to do so. If a court entertains a proportionality argument, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order sought. [33] [49] On the face of it, section 127(2) of the Housing Act 1996 gives the court no discretion in the case of an introductory tenancy. But this does not prevent the court considering proportionality. Given that lawfulness is an inherent requirement of the procedure for seeking a possession order, it is open to the court to consider whether that procedure has been lawfully followed in respect of the defendants Article 8 rights. [56] Section 89 of the Housing Act 1980, however, does restrict the courts discretion as to the period for which the taking effect of the order can be deferred. The section provides that a court making a possession order cannot postpone the date for possession for more than fourteen days or, in the case of exceptional hardship, six weeks. The Supreme Court held that the mandatory language of the section prevents a court allowing a longer period to comply with the requirements of proportionality. There was, however, no indication that proportionality requires a longer period and therefore no reason to declare section 89 incompatible with Article 8. [64]

Between 1954 and March 1959 Percy McDonald attended Battersea power station in the course of his employment as a lorry driver for a firm known as Building Research Station to collect pulverised fuel ash. Between 1954 and January 1957 he was at the power station approximately twice a month but this fell to about twice every three months from January 1957. While at the power station as a casual visitor Mr McDonald went into areas where asbestos dust was generated by lagging work. The lagging work involved mixing asbestos powder with water in order to make a paste, as well as sawing preformed asbestos sections and stripping off old asbestos lagging. Mr McDonald was diagnosed as suffering from mesothelioma in July 2012 and sadly died at the beginning of February 2014. His widow, Edna McDonald, took his place as respondent in the appeal. The National Grid Electricity Transmission Plc (National Grid) is the successor body to the occupiers of the power station. At trial, Mr McDonald alleged that those occupiers had been in breach of their statutory obligations under regulation 2(a) of the Asbestos Industry Regulations 1931 (the 1931 Regulations) and section 47 of the Factories Act 1937 (the 1937 Act). He also brought claims in negligence against the successors to his former employers and National Grid, but these claims were dropped before the matter came to the Supreme Court. The trial judge dismissed all Mr McDonalds claims. On appeal, the Court of Appeal allowed Mr McDonalds appeal under the 1931 Regulations but dismissed his appeal under the 1937 Act. National Grid appeals to the Supreme Court in the first appeal and Mr McDonalds representative cross appeals in the second appeal. The Supreme Court dismisses National Grids appeal and dismisses the cross appeal. On the appeal, the decision was by a majority of three (Lord Kerr gives the lead judgment and Lady Hale and Lord Clarke give concurring judgments) to two (Lord Reed, with whom Lord Neuberger agreed). On the cross appeal, the decision was by a majority of four to one, with Lady Hale in the minority. On the first appeal, the majority conclude that the 1931 Regulations apply to all factories and workshops processing asbestos, not just those dealing with asbestos in its raw, unprocessed condition. The clear wording of the Regulations indicated this, focusing as they did on the processes in question rather than the nature of the industry. [27, 98, 116] The Secretary of State made these Regulations to counteract the harm that could be done by the manipulation of asbestos rather than focusing on any particular setting where this might happen [96, 117]. The mixing of asbestos during lagging work at the power station fell within the meaning of paragraph (i) of the Preamble to the 1931 Regulations. The Secretary of State was alive to the risk posed by mixing asbestos in settings other than a narrowly defined manufacturing context [49, 124]. Lady Hale points out that this interpretation of mixing was compatible with Cherry Tree Machine Co Ltd v Dawson sub nom Jeromson v Shell Tankers (UK) Ltd [2001] EWCA Civ 101, which the Supreme Court unanimously approves in this case [100]. Lord Kerr holds that a worker in a factory or workshop where processing of asbestos took place was within the scope of the 1931 Regulations, even if not mixing asbestos himself or directly employed by the occupiers of the premises where asbestos was being mixed. The Secretary of State made these Regulations under section 79 of the Factory and Workshop Act 1901 (the 1901 Act), which empowered him to afford protection to workers not involved in the asbestos processing. The risk of injury which these Regulations sought to protect against arose from inhalation of dust or fumes. There was therefore no logical reason to exclude those who were liable to exposure despite not working directly with asbestos [53]. Lady Hale concludes that liability under the 1901 Act is imposed on occupiers (rather than employers) to protect people in the premises they occupied, therefore the question was whether a person was employed in the power station, not whether he was employed by the occupier [103 104]. Lord Clarke deems that Mr McDonald was in a real sense working for the purposes of the power station and agrees with Lord Kerr [127]. Lord Reed, with whom Lord Neuberger agrees, undertakes an extensive review of the background to the 1931 Regulations. They would dismiss the appeal on the grounds that the 1931 Regulations are not engaged as they are intended to apply solely to asbestos processing within the asbestos industry. They hold that the Regulations were penal legislation which should be construed narrowly [158]. Lord Neuberger, Lord Kerr, Lord Clarke and Lord Reed would dismiss the cross appeal. They agree that, while the rest of the statutory criteria are met, there is no sufficient evidence to rebut the Court of Appeals conclusion that Mr McDonald had failed to establish that a substantial quantity of dust had been given off by the mixing process, as required by section 47(1) of the 1937 Act [90, 209]. Lady Hale would allow the cross appeal on the grounds that there is evidence upon which it could be determined that a substantial quantity of dust had been given off [108 109].

This appeal concerns the order in which claims made by an insured exhaust layers of insurance cover under a programme of professional liability insurance. Black and Veatch Corp (BV) is a firm of architects and engineers incorporated in Delaware, USA. BV purchased a programme of professional liability insurance containing various layers. The programme provided for a self insured retention of US$10 million per occurrence and US$20 million in the aggregate, as well as for a deductible of US$100,000 per claim (or US$250,000 in the case of remedial work under a special endorsement). Above the self insured retention and deductible, BV had a primary layer of insurance cover underwritten by the insurer Lexington. This primary layer was for US$5 million per claim excess of the self insured retention and deductible. The Lexington policy required BV to have paid the amount of the deductible and self insured retention prior to the Company indemnifying the Insured under the terms and conditions of this Policy. Above this primary layer was a so called PI tower consisting of three differently sized layers of excess insurance, providing in total a further US$55 million of cover. The excess policies covering these layers were underwritten by the appellant, Teal Assurance, which is BVs captive insurer, and reinsured with independent reinsurers not involved in these proceedings. The policies constituting the PI tower were worldwide in scope. Finally, BV had a US$10 million layer of top and drop insurance. It was again underwritten by Teal and was reinsured with the respondents. Unlike all the underlying policies, it excluded US and Canadian claims. Each excess layer policy, including the top and drop, was expressed to be subject to the same terms and conditions as the underlying Lexington policy and to drop down to continue as the underlying policy as and when the policy or policies underlying it were exhausted. Each also provided by clause 1 that liability to pay under it shall not attach unless and until the Insurers of the Underlying Policy(ies) shall have paid or have admitted liability or have been held liable to pay, the full amount of their indemnity inclusive of costs and expenses. During the relevant insurance year, BV notified 27 claims, four of which have a value in excess of US$1 million. Two of these four are US or Canadian claims; the other two claims are non US/Canadian claims. To maximise the cover available to its associate BV, Teal wishes to ensure that the non US/Canadian claims are met from the top and drop policy, irrespective of when BVs liability was ascertained. It maintains that BV can present or it can pay the US/Canadian claims first, and that, thereafter, when the PI Tower cover is exhausted, it can recover the other non US/Canadian claims under the top and drop policy, and pass them on to the respondent reinsurers. It maintains that the order in which BVs liability for claims or expenses was ascertained is irrelevant as a matter of general law and/or under the specific terms of the primary and excess policies. The Court of Appeal rejected Teal/BVs interpretation. The CA held that the claims should be met in the order in which BVs liabilities and expenses were ascertained. Teal appeals to the Supreme Court. The Supreme Court unanimously dismisses Teals appeal. Lord Mance gives the Courts judgment. The ascertainment by agreement, judgment or award, of the insureds liability to a third party, or the incurring by the insured of expenses, within the scope of a liability policy gives rise to a claim under the policy. This is turn exhausts the policy cover either entirely or pro tanto [17]. The Supreme Court rejects the appellants submission that liability insurance is as a matter of principle only exhausted pro tanto when the insurer either admits liability or meets the claim. The appellants analysis could lead to the insured having causes of action or recoverable claims which together exceed the limit of the cover. This would make no sense as an insurer is only liable up to the limit of the cover [16 18]. An insured can decide not to notify a claim to its insurer, or can withdraw or abandon a claim which it has notified. The insurance will not then be exhausted by that claim, and the next claim will be recoverable in the ordinary course under the insurance. That is different from what BV and Teal propose, namely to continue with claims, whilst adjusting their priority [19]. The requirement under the Lexington policy that BV have paid the amount of the deductible and the self insured retention prior to Lexington indemnifying the insured under the terms and conditions of the policy does not literally require BV to have made monetary disbursements. Instead the term paid is better understood as a measure of liability incurred [20 21]. Otherwise the present liability insurance would not provide the insured with indemnity to meet the threat of insolvency which might result from third party claims [21]. Even if the term paid does require BV to make monetary disbursements prior to being indemnified this does not mean that BV can alter the order in which claims are met by the insurance programme simply by choosing to make an earlier disbursement in respect of a later ascertained liability or expense [22]. Under the terms of the primary policy Lexington, and under the terms of each excess policy Teal, are liable for claims in the order that BV incurred ascertained expenses or third party liability up to the policy limit [23 and 25 26]. Clause 1 of the excess policies cannot alter this. It defines when liability arises, not the claims in respect of which liability arises [25 26]. It provides that liability only attaches under each excess policy in turn as and when the underlying insurers pay or admit or are held liable in respect of BVs ascertained expenses or third party liability [26]. As and when this occurs, each excess policy drops down to continue as if it were the primary policy [27]. This also constitutes the commercially more sensible interpretation [29 31].

Mr Mandalia came to the UK from India in 2008 to study. His visa was due to expire on 9 February 2012 and on 7 February 2012 he applied to the UK Border Agency (the Agency) for a visa extension in order to study accountancy [1]. To secure an extension, Mr Mandalia needed to satisfy certain requirements for student visas under the points based system set out in the Immigration Rules. In particular, he needed to demonstrate, by the provision of certain documents (including bank statements), that he had held at least 5,400 for a consecutive period of 28 days ending no earlier than one month prior to the date of his application (the 28 day requirement) [2 7]. In his application form, Mr Mandalia confirmed that he held at least 5,400 and submitted a bank statement covering the period from 29 December 2011 to 19 January 2012. The statement was numbered 64 and showed an opening credit balance of 11,090.60, a closing credit balance of 12,071.05, and a lowest intervening balance of 11,018.34. However, as the statement covered a consecutive period of only 22 days, it did not satisfy the 28 day requirement [8 9]. Following an acknowledgment of receipt, Mr Mandalia did not hear from the Agency again until a letter dated 21 April 2012 informing him that his extension application had been refused because of the failure to satisfy the 28 day requirement and that a decision had been made for his removal from the UK [10 11]. Mr Mandalias appeal to the First tier Tribunal (Immigration and Asylum Chamber) was dismissed [13 15]. In the course of those proceedings, the Tribunal was not referred to the Agencys instructions to its caseworkers on handling visa applications (the Process Instruction), which provided a degree of flexibility where an applicant had failed to provide information or evidence. On appeal to the Upper Tribunal, Mr Mandalia successfully challenged the decision to remove him. However, owing to some confusion over his grounds of appeal, the Upper Tribunal did not consider his challenge to the First tier Tribunals decision regarding the refusal of his visa extension application by reference to the Process Instruction [16 17]. Although the Court of Appeal accepted that it had jurisdiction to determine the issue, it dismissed Mr Mandalias appeal [18 20]. The question before the Supreme Court was whether the Agency had acted unlawfully in refusing the visa extension application without first inviting Mr Mandalia to supply a further bank statement(s) in accordance with the guidance set out in the Process Instruction [1]. The Supreme Court unanimously allows Mr Mandalias appeal and quashes the refusal of his visa extension application. Lord Wilson (with whom Lady Hale, Lord Clarke, Lord Reed and Lord Hughes agree) delivers the only judgment. The Court of Appeal did not have the benefit of the analysis of the Process Instruction by either of the specialist immigration tribunals. It was unfortunate that no reference had been made to the Process Instruction before the First tier Tribunal. Mr Mandalia could not be expected to have been aware of it, and the Home Office Presenting Officer clearly failed to discharge his duty to draw it to the Tribunals attention as policy of the Agency which was at least arguably relevant to Mr Mandalias appeal [19]. Legal effect of the Process Instruction The exercise of statutory powers can be restricted by government policy. An applicants right to the determination of an application in accordance with government policy is now generally taken to flow from a principle related to the doctrine of legitimate expectation, but freestanding from it. Individuals have a basic public law right to have their cases considered under whatever policy the executive sees fit to adopt, provided that the policy is a lawful exercise of the discretion conferred by statute. The Process Instruction was a lawful exercise of the power conferred on the Secretary of State under s.4(1) of the Immigration Act 1971. It was also accepted that there was ample flexibility to prevent the Process Instruction from being a fetter on the discretion of caseworkers, and that there were no good reasons for not following the Process Instruction in this case. The only issue is as to the correct interpretation of the Process Instruction, which is a question of law for the Court [29 31]. Interpretation of the Process Instruction The Process Instruction provided that caseworkers should show some limited flexibility in relation to applications from which requisite information or evidence had been omitted [21 22]. In particular, the Process Instruction set out several steps which should be followed when there is missing evidence [23]: Step three provided that, where there was evidence missing from an application which might affect its outcome, further information could be requested from the applicant where either it was established that evidence exists, or [there was] sufficient reason to believe the information exists. One of the examples given in the Process Instruction of where this might apply was where there were bank statements missing from a series [24 26]. Step four provided that [w]here there is uncertainty as to whether evidence exists, benefit should be given to the applicant and the evidence should be requested [27]. It was clear that Mr Mandalias bank statements numbered 62 64 formed a series, and it would be obvious to a caseworker looking at a statement numbered 64 that it formed the last in a series, and that the statement(s) covering the preceding six days were missing from that series (R (Gu) v Secretary of State for the Home Department overruled) [32 33, 37]. Caseworkers were not required to split hairs in construing the Process Instruction, as it stressed the need for flexibility. In particular (a) there was no limit on the amount of information that could be requested from an applicant, (b) bank statements missing from a series were only one example of further evidence which should be requested, and (c) where there was uncertainty as to whether evidence existed, the applicant should be given the benefit of the doubt [34]. Conferred with that degree of flexibility, a caseworker should have followed the Process Instruction by requesting Mr Mandalia to provide the statement(s) which covered the first six days of the 28 day period. The Agencys refusal of Mr Mandalias application was therefore unlawful [35 36].

In 2003 Ms Preston was admitted to full connexion in the Methodist Church and thereupon ordained. She was then stationed at the Taunton Circuit as a probationer and, in November 2005, she accepted an invitation to become the Superintendent Minister in the Redruth Circuit. In 2009, she brought a claim against the Church in an employment tribunal for unfair dismissal. Under section 94 of the Employment Rights Act 1996, only an employee has the right not be unfairly dismissed. Section 230 of that Act defines an employee as someone who has entered into or works under a contract of service or apprenticeship. The question at issue on this appeal is whether Ms Preston was employee. The tribunal held she was not. That decision was, however, reversed by the Employment Appeal Tribunal in a decision subsequently upheld by the Court of Appeal. The Supreme Court allows the appeal by a majority of four to one (Lady Hale dissenting), and restores the order of the Employment Tribunal dismissing Ms Prestons claim. Lord Sumption (with whom Lords Hope, Wilson and Carnwath agreed) gives the main judgment of the Court. The modern authorities made clear that the question whether a minister serves under an employment contract can no longer answered by classifying the ministers occupation by type: office or employment, spiritual or secular. Nor can it be answered by any presumption against the contractual character of the service of ministers. The primary considerations are the manner in which a minister is engaged, and the rules governing his service. This depends on the intentions of the parties and, as with all such exercises any such evidence of the parties intentions falls to be examined against the factual background. Part of that background is the fundamentally spiritual purpose of the functions of a minister of religion [10, 33]. The constitution and standing orders of the Methodist Church showed that [20]: (1) A ministers engagement is incapable of being analysed in terms of contractual formation. Neither admission to full connection nor ordination are themselves contracts. (2) A ministers duties thereafter are not consensual. They depend on the unilateral decisions of the Conference. (3) The stipend and manse are due to a minister by virtue only of admission into full connection or ordination, and while a minister remains in full connection and in active life, these benefits continue even in the event of sickness or injury. (4) The disciplinary rights under the Churchs Deed of Union, which determine the way a minister may be removed, are the same for ordinary members as well as ministers. (5) The relationship between the Church and the minister is only terminable by the Conference or its Stationing Committee or by a disciplinary committee, and there is no unilateral right to resign, even on notice. The ministry described in the constitution and standing orders is a vocation, by which candidates submit themselves to the discipline of the Church for life. Absent special arrangements with a minister, a ministers rights and duties arise from their status in the Churchs constitution and not from any contract [20, 34]. With regard to Ms Prestons ministry, the exchange of letters by which she came to be stationed at Redruth might in other contexts be viewed as contractual. However, the standing orders showed that a circuits invitation is no more than a proposal to the Conferences Stationing Committee that they should recommend the candidate to the Conference for stationing in their circuit. While every effort is made to meet the preferences of circuits and ministers, the decision is reserved to the Conference. It may be delegated only to the President of the Conference, not to the circuit, and then only if the appointment has to be made between Conferences. The relevant relationship is between the minister and the Conference, and the Conference can move a minister from one circuit to another even before the end of the period for which the circuit invited the candidate to serve. There is no fresh relationship with each invitation or with each appointment. Ms Preston was serving as a minister at Redruth not pursuant to the five year relationship envisaged in the exchange of letters, but pursuant to the life long relationship into which she had already entered when she was ordained [23]. Lady Hale (dissenting) held that it would be odd if a minister who was not paid his or her stipend or evicted from his or her manse could not rely upon his or her terms of appointment to enforce the payment or to regain possession. The suggestion that a minister would be a beneficiary under a trust upon which the Church holds its property was inconsistent with the stipend being paid centrally and the Church holding property under numerous different trusts. The Conference controls a ministers remuneration and accommodation. There is a distinction between being a minister and having a particular appointment within it. A minister is assigned to a particular post for a defined period with particular duties, a particular manse and a stipend dependent on the level of responsibility. In any other context, such a post would involve a contract of employment. A prior (non enforceable) commitment to go where you are assigned does not negate a mutual contractual relationship when you are assigned and agree to go to a particular place [48].

The appellants are two taxpayers who invested in and became limited partners of various partnerships in implementation of marketed tax avoidance schemes. The schemes were aimed at accruing substantial trading losses through investment in films. The partnerships claimed that they had suffered such losses in several tax years and claimed relief for film expenditure by taking advantage of tax incentives under section 42 of the Finance (No 2) Act 1992. In the early years of trading, a limited partner could use the provisions of sections 380 and 381 of the Income and Corporation Taxes Act 1998 (ICTA) to set off his allocated share of trading losses of a partnership against his general income for that year, or any of the previous three years of assessment. HMRC did not accept the partnerships claims for relief and initiated enquiries into their tax returns under section 12AC(1) of the Taxes Management Act 1970 (TMA). HMRC disallowed the partnerships claims for expenditure funded by non recourse or limited recourse loans to individual partners and also expenditure paid as fees to the promoters of the schemes. The partnerships appealed. Thereafter, on 22 August 2011, the partnership losses were stated at much reduced levels in a partnership settlement agreement. Between September and November 2011, HMRC wrote to the appellants to intimate that their carry back claims in their personal tax returns would be amended in line with the lower figures for the partnership losses stated in the partnership settlement agreement. The appellants raised judicial review proceedings against HMRCs decisions which were set out in the letters. They assert that HMRC was entitled to enquire into their claims only under Schedule 1A to the TMA and that, because the statutory time limit for such an enquiry had expired, the appellants claims to carry back the partnership losses in full had become unchallengeable. The Upper Tribunal rejected the appellants claim. The Court of Appeal dismissed their appeal. The appellants now appeal to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Hodge gives the lead judgment with which the other Justices agree. Section 42 TMA, unless otherwise provided, has effect in relation to a claim for relief. Section 42(2) provides that, where HMRC has given notice to a person requiring him to make and deliver a tax return, a claim for relief must be included in that tax return. In the case of a partnership, certain types of claim for relief (including the type of claim made in this case) shall be made, where section 42(2) applies, in a partnership return [14 15]. Schedule 1B to the TMA applies where (as in this case) relief is sought for a loss incurred in a later year (Year 2) by carrying it back to an earlier year (Year 1). According to paragraph 2(2) of Schedule 1B, section 42(2) is disapplied to such a claim. This disapplication means that a claim may be made under Schedule 1A notwithstanding that HMRC have required the provision of a tax return [17 20]. Enquiries into claims under Schedule 1A are subject to time limits [21]. The appellants asserted that their claims were governed only by Schedule 1A because they were stand alone and the fact that HMRC did not open an enquiry within the requisite time limit in Schedule 1A means that their claims became unchallengeable. This assertion was incorrect because of the provisions of the TMA which specify what a taxpayer must include in his return [22]. The disapplication of section 42(2) to claims falling within Schedule 1B does not mean that the taxpayer is released from the requirement to make the claim (i.e. a claim for relief involving two or more years) in his tax return in Year 2. Section 8(1) TMA imposes this requirement [20]. Section 8 sets out what a person must produce when given a notice to make and deliver a tax return. Under section 8(1)(a), the person is required to provide information needed for the purpose of establishing the amount to which that person is chargeable to income tax. This will include the persons share of partnership income or losses for the period which falls within the year of assessment [23]. A person must therefore include in the return for Year 2 his share of the losses of a partnership, of which he was a partner, which have been stated in a relevant statement relating to Year 2 [24]. If a taxpayer wished to claim to offset all of his share of partnership losses in Year 2 against his other income in Year 2 by invoking section 380(1)(a) of ICTA, he would have to include that claim in his return for Year 2 [27]. If a taxpayer wished to carry back part of the losses incurred in Year 2 to set off against his liability to income tax in respect of Year 1 by invoking section 380(1)(b) of ICTA, he would also have to make the claim in his return for Year 2. The information required as part of a taxpayers return for Year 2 will include both the relief which is claimed in the return and that which he has already received (for instance, any relief already received under Schedule 1A) as that information is necessary for the purpose of establishing the amounts in which the taxpayer is chargeable to income tax for that year of assessment (section 8(1)) [28 29]. HMRC is empowered to enquire into anything contained in the return, or required to be contained in the return, and was therefore empowered (under section 9A TMA) to enquire into the appellants carry back claims contained in their Year 2 tax returns. HMRC were not required to institute an enquiry under Schedule 1A in order to challenge the appellants claims [30]. HMRC by opening an enquiry into the partnership tax returns were deemed to have opened an enquiry into the partners personal tax returns in respect of Year 2 [32]. The partnerships appealed against the conclusions and amendments made by the closure notices following completion of HMRCs enquiries. The partnership settlement agreement made on 22 August 2011 had the same consequences as if the Special Commissioners (now the First Tier Tribunal) had determined the appeal in the manner set out in the agreement [33]. This deemed decision empowered HMRC to amend the appellants personal tax returns (section 50(9) TMA). Section 59B(5)(b) TMA provides for the payment by the taxpayer of sums payable as a result of such an amendment. Therefore, the amendment of the appellants returns (by letters dated September to November 2011) was lawful and the judicial review challenge fails [35 36]. The decision of the Supreme Court in Cotter v Commissioners for Her Majesty's Revenue & Customs [2013] UKSC 69 gives no support to the appellants in this appeal [37].

The subject of the appeal is an occupational pension scheme known as the Imperial Home Dcor Pension Scheme (the Scheme), which is winding up and has a significant deficit. The appeal is concerned with the dividing line, for regulatory purposes, between defined benefit (normally earnings related) schemes and defined contribution (or money purchase) schemes. The general nature of the distinction is that under a defined benefit scheme (the commonest variety of which is a final salary scheme), the amount of the benefit is not calculated by reference to the amount of the members contributions. Under a money purchase scheme, by contrast, the members and the employers contributions, and the investment return on them, are the measure of the members benefits. There is a variety of techniques by which, under a money purchase scheme, the amount of the contributions by or for a member, and the investment return on them, are mathematically transposed into quantifying the pension that is the primary benefit that the member expects to receive. The Secretary of States case is that some of the techniques (and in particular, those applicable to the voluntary investment planning (VIP) and MoneyMatch benefits under the Scheme) take the benefits outside the definition of money purchase benefits in section 181(1) of the Pension Schemes Act 1993. The essential feature of the definition is that the rate (typically so much a year) or amount (typically a lump sum) of the benefits is to be calculated by reference to contributions made in respect of that member. Section 73 of the Pensions Act 1995 provides a statutory order of priority in the winding up of pensions schemes but it does not apply to money purchase schemes, and it applies only in a limited way to hybrid schemes (under which some but not all of the benefits provided are money purchase benefits). The appeal is of great importance to the current and deferred pensioners interested under the Scheme, since if the Secretary of State is right part of the contributions paid by or in respect of members still in service or entitled to deferred pensions at the date of commencement of the winding up of the Scheme will be used, under the statutory order of priority, to satisfy the rights of those already entitled to receipt of pensions at that date. The three issues before the Supreme Court were: (1) Are MoneyMatch benefits money purchase benefits despite the presence of the Guaranteed Interest Fund (GIF)? (2) If not, are they money purchase benefits to the extent that they are attributable to contributions and credits not allocated to the GIF? (3) Are pensions granted by way of internal annuities money purchase benefits? As regards the first issue, a Scheme members total MoneyMatch contributions were, with three possible exceptions, credited to the GIF. As the actual investment returns on contributions might be less than the guaranteed rate of return this could lead to a deficit in the fund. As regards the third issue, in practice internal annuities were used in relation to VIP and MoneyMatch benefits, so that the members interest was converted into a pension using tables of factors periodically supplied by the Scheme actuaries and paid direct from the Scheme. This internal annuitisation necessarily involves some degree of risk of the resources of the fund proving insufficient to provide all the benefits due, if investment returns are disappointing or annuitants exceed their actuarial life expectations (or both). The proceedings were commenced in 2006 by Bridge Trustees Ltd (the Trustee), the independent corporate trustee of the Scheme. Three members of the Scheme were joined as representative defendants. The appellant Secretary of State was not a party to the first instance proceedings, but was granted leave to intervene in an appeal. The appellants case is that it is fundamental to the scheme of the legislation that money purchase schemes are always fully funded, with no risk of the assets being insufficient to meet the liabilities, and for that reason alone they are excepted from the statutory order of priority. Both the deputy judge and the Court of Appeal concluded that neither the GIF mechanism nor the provision of internal annuities (as opposed to the purchase of annuities from a life office) is incompatible with money purchase benefits. The Supreme Court, by a 4 1 majority, dismisses the Secretary of States appeal on the first and third issues, holding that equilibrium of assets and liabilities is not a requirement of the statutory definition of a money purchase scheme (and similarly for money purchase benefits). The second issue does not arise. Lord Walker gives the leading judgment. Lord Mance gives a separate dissenting judgment. On the first issue, the majority, while accepting that KPMG [2006] 1 WLR 97 was correctly decided on its facts, respectfully differ from the key conclusion reached by Jonathan Parker LJ in para 171 of his judgment in KPMG, that calculated by reference to means calculated only by reference to, in the sense that the benefit in question must be the direct product of the contributions. This interpretation involves reading in the word only, which Parliament did not use (whereas it did use solely in the definition of flat rate benefit). The altered phrase is then explained (in the sense that) by reference to the contributions direct product though the statutory definition makes no express reference to investment return. Still less is there anything in the statutory definition requiring meticulous investigation as to the actual investment return earned over the years by every contribution made in respect of a member. The GIF mechanism did not unhitch a members eventual benefits from that members total contributions. It provided for a yield of guaranteed interest at a modest rate fixed by an objective test, together with the prospect of further bonuses at a modest rate, fixed, again, by an objective test under which the trustees had no discretion. [70] [73] On the third issue, the provision of internal annuities (as opposed to the purchase of annuities from a life office) is not incompatible with money purchase benefits. As the deputy judge put it, the distinction would produce insupportable anomalies. As the Court of Appeal put it, annuity tables based on actuarial calculations are used only at the final stage, when the member retires and the amount earned by his or her defined contributions must be converted from a lump sum into an annuity. That is inescapable under either method of provision, in that actuarial tables will be used, on the advice of actuaries, either by the trustees or by the life office (with the latter building in a profit element). [76] Lord Mance is not persuaded that it is necessary or appropriate to read the 1993 Act (or subsequent legislation) as embracing within the concept of money purchase benefit, to some undefined and unclear extent, liabilities not matched with any specific asset held by the scheme. [94]

Mrs Knauer was employed by the Ministry of Justice as an administrative assistant at Her Majestys Prison, Guys Marsh. In the course of her employment, she contracted mesothelioma, from which she died in August 2009. Her husband, Mr Knauer, made a claim for future loss of dependency under the Fatal Accidents Act 1976. The Ministry of Justice admitted liability for Mrs Knauers death in December 2013. In a hearing before Bean J in July 2014, the parties agreed the annual figure for the value of the income and services lost as a result of Mrs Knauers death, the multiplicand. A dispute arose between the parties as to whether the number of years by which that figure is to be multiplied, the multiplier, should be calculated from the date of death or from the date of trial. The trial judge held that he was bound to follow the approach adopted by the House of Lords in the cases of Cookson v Knowles [1979] AC 556 and Graham v Dodds [1983] 1 WLR 808 and to calculate the multiplier from the date of death. The trial judge made it clear that, absent that authority, he would have preferred to calculate the multiplier from the date of trial in line with the approach recommended by the Law Commission in their report Claims for Wrongful Death (1999, Law Com No 263). Bean J granted a certificate under section 12 of the Administration of Justice Act 1969 to enable Mr Knauer to appeal direct to the Supreme Court. The Supreme Court unanimously allows Mr Knauers appeal. Lord Neuberger and Lady Hale give a joint judgment, with which the other Justices agree. Calculating damages for loss of dependency from the date of death, rather than the date of trial, means that the claimant suffers a discount for early receipt of the money when in fact that money will not be received until after trial, a discount that results in under compensation in most cases [7]. A ruling that damages should be assessed from the date of trial would involve departing from the established law as laid down by the House of Lords in Cookson v Knowles [1979] AC 556 and Graham v Dodds [1983] 1 WLR 808. Therefore, the question is whether this is a case in which the Court should apply the 1966 Practice Statement and depart from precedent [19 22]. The Court has no hesitation in concluding that it should do so in the present case [23]. In the current legal climate, the application of the reasoning in the two House of Lords decisions is illogical and its application also results in unfair outcomes. The most important reason for coming to that view is that there has been a material change in the relevant legal landscape [23]. Cookson v Knowles [1979] AC 556 and Graham v Dodds [1983] 1 WLR 808 were decided in a different era, when the calculation of damages for personal injury and death was nothing like as sophisticated as it is now and the use of actuarial evidence or tables was discouraged [12]. Lord Bridge, in Dodds, outlined two concerns which were said to justify the rule. First, adopting the date of death reduced the need to deal with uncertainties around what would have happened to the deceased between the death and the date of trial. Secondly, were the date of trial to be adopted, this would lead to the anomaly that, the longer the trial were delayed, the more a claimant would be able to recover [13 15]. The Ogden Tables were produced in 1984 and endorsed by the House of Lords in the landmark case of Wells v Wells [1999] 1 AC 354. As the Ogden Tables include fatal accident calculations based on the recommendations of the Law Commission, there is now a perfectly sensible way of addressing the first of Lord Bridges concerns [16 17]. As to the second of Lord Bridges concerns, this is less of an issue due to the respect in which the litigation landscape has been transformed since 1984; under the Civil Procedure Rules 1998, the court is now in a position to set timetables and insist that the parties keep to them. In any event, the proper use of the Ogden Tables makes the concern irrelevant [18]. Another reason why the Court should depart from Cookson and Dodds is that the unfair effect of the rule as set out in those cases, has led courts to distinguish them on inadequate grounds, which means that certainty and consistency are being undermined [8 9, 23].

This appeal concerns a child, S, who was born on 1 April 2000. His father is the appellant, and his mother is the first respondent. The second respondent is a solicitor who was appointed as curator ad litem to S in respect of these proceedings. The issue between the parties is whether the appellant should have contact with section Following the end of their relationship, the appellant and first respondent engaged in protracted family proceedings to determine the issue of contact with section The order giving rise to the appeal is set out in an interlocutor of Stirling Sheriff Court dated 22 January 2010. In a previous interlocutor the appellant had been granted parental rights and responsibilities with respect to S, as well as contact. On 22 January 2010, the sheriff recalled the previous interlocutor and withdrew all contact between the appellant and section On appeal to the Court of Session, the Inner House varied the sheriffs interlocutor so as to restore the appellants parental rights and responsibilities, but otherwise refused the appeal. The present appeal is brought against the decision of the Inner House. The Supreme Court dismisses the appeal. The lead judgment is given by Lord Reed, with whom the other justices agree. Lord Hope adds a brief concurring judgment. The Supreme Court notes that, where an appeal is taken to the Court of Session from the judgment of a sheriff proceeding on a proof, the judgment of the Court of Session is appealable to the Supreme Court only on matters of law: Court of Session Act 1988, section 32(5). The appellants submissions were therefore confined to three points. First, it was argued that the sheriff had failed to address his mind to the appropriate legal framework, specifically section 11 of the Children (Scotland) Act 1995 and the case law providing guidance as to its application. Secondly, it was argued that the sheriffs findings could not reasonably warrant the conclusion which he reached. Thirdly, it was argued that the sheriff had failed to act judicially, and that his decision should not therefore be allowed to stand. In that regard, counsel contended that remarks made by the sheriff betrayed a lack of objectivity and impartiality [9]. In relation to the first argument, it is apparent that the sheriff had in mind the correct test. His findings demonstrate that he treated the welfare of the child as the paramount consideration, and considered whether it was in the childs best interests that an order for contact should be made. In those circumstances, the sheriffs failure to make any explicit reference to section 11 of the 1995 Act, or to authorities, is of no consequence [11 12]. The second argument advanced on behalf of the appellant must also be rejected. Given his findings, the sheriff had a reasonable basis for his conclusion that contact would not be in the childs best interests [14]. There is force in counsels submissions that the greater part of the sheriffs findings are concerned with peripheral matters. This however reflects the evidence which was led on the basis of the pleadings, and the sheriffs obligation to make findings in relation to that evidence [15, 39]. In support of his third argument, counsel submitted that the sheriff had made critical remarks about the appellant and the counsel who represented him, which were expressed in inappropriate language. The characters of the parties were however relevant, to some extent at least, to determining whether the order sought would be in the best interests of the child. They were also the subject of a great deal of evidence. It was therefore appropriate for the sheriff to make findings in that regard [16 17]. Although a judge must be careful to strike the appropriate balance between plain speaking and appropriate restraint, it is only exceptionally that the language used by a judge can give rise to an issue of law which might vitiate his decision. In the present case, the Supreme Court cannot detect an error of law in relation to this matter [17]. As to the criticisms of counsel, a judge is entitled to comment in his judgment on the conduct of counsel appearing before him. It could only be in exceptional circumstances that such criticisms could give rise to an issue of law falling within the jurisdiction of the Court. In the present case, the concerns expressed do not raise such an issue. If however, under current practice, counsel may have neither advance warning of such criticisms nor any opportunity to respond, that is a matter which any fair minded sheriff or judge will bear in mind [18 19]. Before parting with the appeal, the Supreme Court considers it appropriate to comment on the duration of the proceedings and the costs incurred. It makes three observations. First, it questions whether traditional pleadings are the best means of identifying the issues in such cases. It notes that in the Report of the Scottish Civil Courts Review the introduction of an abbreviated form of pleadings, and of judicial control of any procedure for their adjustment or for the provision of further specification, was recommended (in Recommendation 116) [21 29, 40]. Secondly, further consideration might be given to the structure of a sheriffs judgment proceeding on a proof. The judgment will most clearly address the central issue if it focuses directly upon the factors which are relevant to the courts exercise of its discretion. Findings on any relevant facts can be made clear within the ambit of a judgment focused primarily upon the central issue; as opposed to the judgment being divided into findings of fact and law, and a note in which the findings are explained, as currently prescribed [30 33, 41 48]. Thirdly, it encourages the courts to make use of their existing case management powers [33 34, 40]. Finally, the Court notes a lack of clarity as to the role of the curator ad litem in the proceedings, and observes that a number of relevant recommendations were made in the Report of the Scottish Civil Courts Review [35 37].