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This case concerned the circumstances in which sentences passed on offenders who have given assistance to prosecuting authorities should be referred back to the sentencing court under section 74 of the Serious Organised Crime and Police Act 2005 (the 2005 Act). In August 2008 Robert and David Stewart, former members of a loyalist paramilitary organisation in Northern Ireland, arrived unexpectedly at a police station in Northern Ireland. They informed police about their involvement in offences including a murder in October 2000. They also supplied police with information concerning the alleged involvement of others in those offences. On foot of the information which they provided, the Stewarts entered into agreements with the prosecuting authorities to provide information and assist with ongoing investigations. They also undertook to provide truthful evidence at trial and to plead guilty to the offences they had committed. These agreements stated that failure to comply with the terms could result in any sentence received being referred back to the sentencing court for review pursuant to section 74 of the 2005 Act. In recognition of their assistance, the tariff for their life sentences was reduced by 75% and they both served 3 years in prison. A number of people were charged with different offences as a result of the information given by the Stewarts. Following a long trial, only one person was convicted but this was not because of evidence given by the Stewarts. Jason Loughlin was one of those acquitted. He applied for a judicial review of the decision of the prosecutor not to refer the case of the Stewarts back to the sentencing court. His application succeeded before the Divisional Court. The prosecutor appealed to this court against the Divisional Court's decision. The Supreme Court allows the appeal and dismisses the application by the Respondent, Mr Loughlin, for judicial review. Lord Kerr gives the judgment with which all other members of the panel agree. Section 74 of the 2005 Act requires that, before deciding to refer a sentence passed on an assisting offender back to the original sentencing court a prosecutor must be satisfied that the assisting offender had knowingly failed to comply with the terms of the agreement made with the prosecuting authorities and that a reference was in the interests of justice [11 12]. The Court rejected the Respondents argument that the prosecutor was required to carefully examine every conceivable aspect of the Stewarts accounts. This would have placed an impossible logistical burden on the prosecutor [15 16]. The prosecutor considered that it would not be in the interests of justice to refer the decision back to the sentencing court. She identified five factors relevant to her decision: (i) the nature and extent of assistance provided; (ii) the time which had elapsed since the original sentence had been passed; (iii) whether the imposition of a revised sentence might be considered oppressive; (iv) the potential damage to public confidence in the justice system if a referral was not made; and (v) the prospects of a successful application to the reviewing court. Having analysed these factors in relation to the Stewarts, the prosecutor concluded that the case should not be referred [17 19]. The Divisional Court had considered the key question to be whether circumstances had changed since the original sentence had been passed, suggesting that (i) the prosecutor must first consider whether there had been a change of circumstances; and (ii) if such a change had occurred, unless there were countervailing circumstances, she was bound to conclude that it was in the interests of justice that the case be referred [21 22]. The Court rejected this conclusion. To require the prosecutor to refer a sentence back where there had been a change of circumstance would entail a reference in any instance of deviation by the assisting offender from the agreement. The requirement that the referral be in the interests of justice would then have no meaningful content. Consideration of the interests of justice involves an open ended deliberation section 74(4) does not impose any constraints on how the prosecutor should approach the question [29 31].

The Appellant owns and occupies a mobile home that sits on a plot at Meadowview Park, a mobile homes site belonging to the Respondent. He pays an annual pitch fee to the Respondent for licence to use the plot. Under the terms of his agreement with the Respondent (the agreement), he is not permitted to act in such a way as to annoy or disturb other occupiers of Meadowview Park (the anti social behaviour covenant) [5]. Under the Mobile Homes Act 1983 (the 1983 Act), a site owner can only terminate an occupiers licence in certain limited circumstances [1]. This appeal concerns Paragraph 4 of Chapter 2 of Part 1 of Schedule 1 to the 1983 Act (para 4), which provides: The owner shall be entitled to terminate the agreement forthwith if, on the application of the owner, the appropriate judicial body (a) is satisfied that the occupier has breached a term of the agreement and, after service of a notice to remedy the breach, has not complied with the notice within a reasonable time; and (b) considers it reasonable for the agreement to be terminated. Previously, Section 3(g) of the Mobile Homes Act 1975 (the 1975 Act) provided for the right of the owner to determine the agreement for breach of an undertaking, subject to the requirement, in the case of a breach which is capable of being remedied, that he has served written notice of the breach upon the occupier and has given the occupier a reasonable opportunity of remedying it (emphasis added). However, in the 1983 Act any such clarification that the notice and reasonable time requirements only apply to remediable breaches was omitted [20]. The Appellant suffers some mental ill health, has a mild learning difficulty and exhibits autistic traits [6]. On 31 July 2006 he startled another resident of Meadowview Park, Miss Puncher, by jumping out at her from behind a tree wearing camouflage clothing [7]. In doing so he breached the anti social behaviour covenant. On 15 August 2006 the Respondent wrote to the Appellant warning that he must not make unsolicited approaches to other residents, or the Respondent would apply to court to have the agreement terminated and his mobile home removed. This letter amounted to notice to the Appellant to remedy his breach of the anti social behaviour covenant for the purposes of para 4 [8]. The Appellant did not commit any further breach until 15 July 2009, when he told another resident, Mr Carter, that two women had reported him for jumping out on them in the woods and he was going to kill them. The Appellant then made threats to kill Mr Carter [10]. The Respondent applied to court for termination of the agreement [11]. On 17 August 2011 HHJ Moloney QC found that the requirements of para 4 were satisfied, granted the Respondents application and ordered that the Appellants licence to station his mobile home at Meadowview Park be terminated. The Appellant appealed to the Court of Appeal and his appeal was dismissed on 16 May 2012 [3]. The Supreme Court unanimously allows the Appellants appeal against the order to terminate his licence to station his mobile home at Meadowview Park. Lord Wilson gives the main judgment. Lady Hale and Lord Toulson give concurring judgments. Lord Carnwath (with whom Lord Reed agrees) gives a concurring judgment allowing the appeal for different reasons. The panel reached the following conclusions as to the correct application of para 4: Whether para 4 applies to an irremediable breach Lord Wilson (with whom Lady Hale [44] and Lord Toulson [62] agree) holds that the notice requirement in para 4 applies only to a breach that is remediable [22]; it would be nonsensical to require service of a notice to remedy a breach which is incapable of remedy [20]. Lord Carnwath (with whom Lord Reed agrees) considers that a notice to remedy is required in all cases because the omission of limiting words in para 4 (such as the words in the 1975 Act, namely in the case of a breach which is capable of being remedied) must be regarded as deliberate [81]. The views of the court on this question are obiter dicta as the panel unanimously holds that the Appellants breach of 31 July 2006 was remediable [47] (see below). Whether a breach of an anti social behaviour covenant can be remedied It is the unanimous view of the court that an occupier can in principle remedy a breach of an anti social behaviour covenant. To decide if a breach is remediable requires a practical enquiry as to whether, and if so how, the mischief resulting from the breach can be redressed [31][52]. Some breaches are so serious as to be irremediable [37][53]. What constitutes compliance with a notice to remedy a breach of an anti social behaviour covenant Lord Wilson [37], Lady Hale [48] and Lord Toulson [63 64] hold that the occupier complies with a notice to remedy by not committing any further anti social behaviour for a reasonable time. Lord Wilson explains that in cases involving breach of a negative obligation, the words within a reasonable time in para 4 must be read as meaning for a reasonable time [32]. Lady Hale characterises reasonable time as such time as is sufficient for the fears and anxiety caused by the anti social behaviour to calm down [48]. Lord Carnwath (with whom Lord Reed agrees) takes the minority view that that in the case of a negative user condition, compliance with a notice to remedy must continue indefinitely [90]. Whether the requirements of para 4 were satisfied in this case The mischief resulting from the Appellants breach of 31 July 2006, namely the alarm caused to Miss Puncher, was capable of being redressed [32]. In the view of the majority (Lord Wilson [36], Lady Hale [49] and Lord Toulson [65]) the period of almost three years during which the Appellant complied with the 15 August 2006 notice did amount to reasonable time. Therefore, following the Appellants further breach on 15 July 2009, the Respondent ought to have served a fresh notice to remedy, or to have raised an allegation that this later breach was irremediable [36]. As it failed to do so, the agreement could not be terminated pursuant to para 4. Lord Carnwath (and Lord Reed) would allow the appeal on the alternative basis that there needs to be a causal or temporal link between the notice to remedy and the subsequent breach [91] which was absent in this case [95].

The United States Government is seeking the extradition of the appellant, Mr Norris, so he may be tried on an indictment charging him with obstruction of justice. He had originally faced a further charge of price fixing. The House of Lords ruled in 2008 ([2008] UKHL 16) that the conduct alleged in relation to the price fixing charge was not capable of amounting to an extradition offence as it was not a crime under English law when it was committed. His case was then sent back to the district judge to decide whether he should be extradited on the remaining charges in the indictment. Mr Norris submitted that extradition would cause disproportionate damage to his and his wifes physical and psychological wellbeing having regard to their age, their state of health and the likely effect of the separation that extradition would impose upon them. Thus extradition would be incompatible with his right to private and family life under article 8 of the European Convention on Human Rights and he should be discharged pursuant to s 87 Extradition Act 2003. The district judge found there to be no bars to extradition. His decision was upheld on appeal to the High Court, which found that the public interest in honouring extradition treaties was such as to require Mr Norris to show striking and unusual facts or reach a high threshold if his article 8 rights were to prevail. Mr Norris appealed to the Supreme Court, arguing that the courts below had wrongly required him to demonstrate exceptional circumstances in order to show that his extradition would be disproportionate. The Supreme Court unanimously dismissed the appeal. It held that a test of exceptional circumstances had not been applied. However, in an extradition case, the consequences of any interference with article 8 rights would have to be exceptionally serious before this could outweigh the public importance of extradition. This was not such a case. Lord Phillips (with whom all the members of the court agreed) stated that it was common ground that the extradition of Mr Norris would interfere with the exercise in this country of his right to respect for his private and family life. The critical question was whether this interference was necessary in a democratic society for the prevention of disorder or crime. On the issue of principle of whether a court could properly require a person resisting extradition on article 8 grounds to demonstrate exceptional circumstances, there was no rule of law that this was the test of disproportionality but the public interest in extradition weighed very heavily indeed [paragraph 51]. It was of critical importance in the prevention of disorder and crime that those reasonably suspected of crime were prosecuted and, if found guilty, duly sentenced. Extradition was part of the process for ensuring that this occurred on a basis of international reciprocity [paragraph 52]. The reality was that only if some quite exceptionally compelling feature, or combination of features, was present that interference with family life consequent upon extradition would be other than proportionate to the objective that extradition served. Exceptional circumstances was a phrase which said little about the nature of the circumstances: it was more accurate and more helpful to say that the consequences of interference with article 8 rights must be exceptionally serious before this could outweigh the importance of extradition. The courts below were justified in considering how if at all the impact of extradition on family life would differ from the normal consequences of extradition [paragraph 56]. Three subsidiary issues arose,, which the court answered as follows: The gravity of the offence could be of relevance, especially if it was at the bottom of scale, but it usually would not be [paragraph 63]; The effect of extradition on innocent members of the family of a person resisting extradition was relevant and could be a cogent consideration [paragraph 64]; and It would rarely be relevant to consider whether the person resisting extradition could be prosecuted in the requested state. The extradition process should not become an occasion for debate about the most convenient forum for criminal proceedings [paragraph 67] On the facts of Mr Norris case, he was now 67 and had suffered ill health for some years. His wifes psychiatric condition would preclude her from travelling to the United States to support her husband and she would lose his support. The offences of obstructing justice, although subsidiary to the price fixing charge, were however very grave indeed [paragraph 72]. The public interest would be seriously damaged if any defendant with family ties and dependencies such as those which bound Mr Norris and his wife was thereby rendered immune from being extradited to be tried for serious wrongdoing [paragraph 82].

On 13 May 2003 the Respondent was injured in an accident at work. In May 2006 the Respondent issued a claim against the Appellant, his former employer, alleging breach of duty and/or negligence. In August 2007 the county court gave judgment for the Respondent on liability, with damages to be assessed at a later date. Between October 2007 and September 2008 the Appellant subjected the Respondent to undercover surveillance. This revealed the Respondent was grossly exaggerating the effect of his injuries and his incapacity to work. In December 2008 the Respondent served his first schedule of loss. He claimed damages of 838,616 including a claim for loss of earnings up to October 2008. Soon afterwards the Appellant disclosed the surveillance evidence to the Respondent. At the same time it served a re amended defence asserting that the Respondents claim was dishonestly exaggerated and should be struck out in its entirety. The Respondent subsequently served two further schedules of loss valuing the claim at approximately 250,000. All of the Respondents pleadings and schedules of loss were supported by statements of truth. The trial on damages took place in January 2010. The Respondent did not challenge the surveillance evidence. The judge held there was no doubt the Respondent had suffered serious fractures which required at least two operations. However he also found that the evidence established beyond reasonable doubt that the Respondent had fraudulently misstated the extent of his injuries and had deliberately lied to the medical experts and to the Department of Work and Pensions. The judge found that the Respondent had been fit for work and able to get work since the end of June 2007. Before that date he had been unable to work, but was not as housebound and incapable of activity as he claimed. On the basis of these findings the judge awarded the Respondent damages for loss of earnings between the date of the accident and 30 June 2007. In addition, he awarded general damages of 18,500 and damages for additional care and assistance. The total award was 88,716.76. The Appellant submitted that the court had power to strike out the claim in its entirety on the ground that it was tainted by fraud and was an abuse of process. Both the judge and the Court of Appeal (Ward and Smith LJJ) held they were bound by the decisions of the Court of Appeal in Ul Haq v Shah [2009] EWCA Civ 542 and Widlake v BAA [2009] EWCA Civ 1256 to refuse the application on the ground that the court had no power to strike out a statement of case in such circumstances. The Supreme Court unanimously holds that the court does have jurisdiction to strike the claim out for abuse of process, but declines to exercise the power in the present case. The judgment of the Court is given by Lord Clarke. The issues in the appeal are (1) whether, following a trial at which the court has held that the defendant is liable in damages to the claimant in an ascertained sum, the court nevertheless has power to strike out the claimants statement of case on the basis that it is an abuse of process; and (2) if so, in what circumstances that power should be exercised [1]. In Ul Haq v Shah the Court of Appeal held there is an invariable rule that a person cannot be deprived of a judgment for damages to which he is otherwise entitled on the ground that he is guilty of an abuse of process [25] [28]. The principles in Ul Haq were restated by the Court of Appeal in Widlake v BAA [31]. Notwithstanding those decisions, the court does in fact have power to strike out a statement of case even after the trial of an action where the court has been able to make a proper assessment of both liability and the amount of damages [33]. The language of the Civil Procedure Rules supports the existence of a jurisdiction to strike a claim out for abuse of process even where to do so would defeat a substantive claim. The express words of CPR 3.4(2)(b) give the court power to strike out a statement of case on the ground that it is an abuse of the courts process. It is common ground that deliberately to make a false claim and to adduce false evidence is an abuse of process. It follows from the language of the rule that in such a case the court has power to strike out the statement of case. There is nothing in the rule itself to qualify this power. The only restriction is that contained in CPR 1.1 and 1.2 that the court must decide cases in accordance with the overriding objective of determining cases justly [41]. The position is the same under the inherent jurisdiction of the court, so that in future it is sufficient for applications to be made under the CPR [42] However as a matter of principle the court should only exercise this power in very exceptional circumstances [36], [65]. Under the CPR the court has a wide discretion as to how its powers should be exercised. The power to strike out a claim at the end of a trial should only be exercised if the court is satisfied that the partys abuse of process was such that he had thereby forfeited the right to have his claim determined. This is a largely theoretical possibility. It must be a very rare case in which, at the end of a trial, it would be appropriate for a judge to strike out a case rather than dismiss it in a judgment on the merits in the usual way. The same is true where, as in this case, the court is able to assess both the liability of the defendant and the amount of that liability [43]. This conclusion is compatible with the European Convention on Human Rights (ECHR). In deciding whether or not to exercise the power to strike out the court will examine the circumstances of the case scrupulously. It will only strike out the claim if this is a proportionate means of achieving the aim of controlling the process of the court and dealing with cases justly [46] [48]. It is very difficult to think of circumstances in which such a measure would be proportionate. However they might include a case where there had been a massive attempt to deceive the court but the award of damages would be very small [49]. The Court rejects the submission that unless exaggerated claims are struck out, dishonest claimants will not be deterred. There are many other ways in which deterrence can be achieved. These include ensuring that the dishonesty does not increase the award of damages, making orders for costs (including indemnity costs), reducing interest, proceedings for contempt and criminal proceedings. In appropriate cases adverse inferences can also be drawn against the claimant [52],[61]. In the present case the Respondent accepts that in making statements of truth which he knew to be false and in presenting a dishonest case as to the effect of his injuries and on quantum, he was guilty of a serious abuse of process [24]. Nevertheless, as a matter of substantive law the Respondent did suffer significant injury as a result of the Appellants breach of duty. In all the circumstances it would not be proportionate or just to strike the claim out. The appeal is therefore dismissed [63] [65].

These appeals concern the obligations of insurance companies under various contracts of employers liability (EL) insurance. In particular, the appeals concern the scope of the insurers obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later. The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendants negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employees mesothelioma was caused by exposure to asbestos during a particular policy year. At first instance Burton J held that the policies should all be interpreted as having a causation wording. He therefore held that the liability trigger under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed. A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease contracted during the relevant insurance period); however they concluded that other policies (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma sustained or contracted at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employees body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an employee sustained or contracted mesothelioma during a particular policy period? The Supreme Court dismisses the insurers appeal by a 4 1 majority; Lord Phillips dissenting on the second issue. Lord Mance gives the main judgment. To resolve the meaning of the EL policies it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more generally [19]. Several features point the way to the correct construction. First, the wordings of the policies on their face require the course of employment to be contemporaneous with the sustaining of the injury [20]. Second, the wordings demonstrate a close link between the actual employment undertaken during each period and the premium agreed by the parties for the risks undertaken by the insurers in respect of that period. Third, on the insurers case there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to disease or injury in another later period [24]. Fourth, on the insurers case employers would be vulnerable to any decision by the insurers not to renew the policy. A decision not to renew might arise from the employers complying with their duty to disclose past negligence upon any renewal. Employers who discovered that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease would have such a duty. The insurers could then simply refuse any renewal or further cover [25]. Fifth, the way most of the policies deal with extra territorial issues throws doubt on any suggestion that the wordings are so carefully chosen that a court should stick literally to whatever might be perceived as their natural meaning [28]. Section 1 of the Employers Liability Compulsory Insurance Act 1969 also points the way to the correct interpretation. This states that every employer shall insure, and maintain insuranceagainst liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment. In order to give proper effect to the protective purpose of that legislation, the Act requires insurance on a causation basis [47]. There is no difficulty in treating the word contracted as looking to the causation of a disease, rather than its development or manifestation. The word contracted used in conjunction with disease looks to the initiating or causative factor of the disease [49]. While the word sustained may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later [50]. In relation to the second issue, the question is whether the EL policies cover employers liability for mesothelioma arising under the special rule in Fairchild/Barker [71]. Under that rule the law accepts a weak or broad causal link between the employers negligence and the employees mesothelioma. When construing the EL policies the concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule [74]. The purpose of the EL policies was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies [88]. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurers obligation to indemnify the employer [74]. Lord Phillips dissents on the second issue. The special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. This conclusion is not affected by section 3 of the Compensation Act 2009, which did not alter the jurisprudential basis of the Fairchild/Barker approach [132] [133].

The appellant, Mr Johnson, was born in Jamaica in 1985 to a Jamaican mother and British father who were not married to one another. His father moved to the United Kingdom with him when he was four, and he has lived here ever since. Under the law in force at his birth, Mr Johnson became a Jamaican citizen but not a British one. He would have been a British citizen had his mother and father been married to one another, or married subsequently, or had his mother had been the parent with British citizenship. He would also have been granted British citizenship had he or his father applied while he was still a child and, if over 16, of good character. But no application was made. Between 2003 and 2008 Mr Johnson was convicted of a series of serious criminal offences, culminating in a conviction for manslaughter for which he was sentenced to nine years imprisonment. In 2011 the Secretary of State made a deportation order against him on the ground that he was liable to automatic deportation as a foreign criminal under section 32(5) UK Borders Act 2007 (UKBA). Removal directions were set. Mr Johnson appealed, arguing that deportation would breach his right to family life protected by article 8 of the European Convention on Human Rights (the Convention) and be unlawfully discriminatory under article 14, given that he would not have been liable to deportation had his parents been married to one another. After reconsideration the Secretary of State confirmed her decision and also certified that Mr Johnsons claim was clearly unfounded, thereby removing his right of appeal against her decision in this country. Mr Johnsons claim was amended to challenge both the deportation decision and the issue of the certificate. The High Court held that discrimination against a child of unmarried parents at birth and thereafter violated Mr Johnsons Convention rights, and quashed the certificate. The Court of Appeal allowed the Secretary of States appeal, holding that there had been no violation of Mr Johnsons rights at the relevant time, namely his birth, which was long before the Human Rights Act 1998 (HRA) came into force. The Supreme Court unanimously allows the appeal, finding that Mr Johnsons liability to deportation by reason of the accident of his birth outside wedlock is unlawfully discriminatory, in breach of his Convention rights. The consequence is that the certificate granted by the Secretary of State will be quashed and Mr Johnsons appeal against the decision to deport him will be certain to succeed. The court also makes a declaration that the statutory requirement that a person in Mr Johnsons position must also be of good character in order to be granted British citizenship is incompatible with Convention rights, pursuant to section 4 HRA. Lady Hale gives the only substantive judgment, with which the other justices agree. Over the past fifty years there has been progressive reform of provisions discriminating against children of unmarried parents. Since 2006 a person in Mr Johnsons position has been entitled to automatic British citizenship at birth but this change was not retrospective [12, 14 17]. One of the benefits of British citizenship is the right not to be deported as a foreign criminal. The obligation on the Secretary of State to deport a foreign criminal does not, however, apply if removal will breach his Convention rights: s 33(1) UKBA [18]. The issue before the court was whether the basis for Mr Johnsons appeal, namely that to deport him would breach his Convention rights, was clearly unfounded so as to justify the grant of the certificate. This raised the questions of whether the rules denying him citizenship had a one off effect at his birth or had continuing consequences which were within the scope of the HRA, and whether this discriminatory effect could be justified [23]. The right to a nationality is not as such a Convention right but denial of citizenship when it has important effects on a persons identity falls within the ambit of article 8 and so triggers the application of the prohibition of discrimination in article 14 [27]. Birth outside wedlock is a status for the purpose of article 14 and falls within the class of suspect grounds where very weighty reasons are required to justify discrimination [29, 30]. In Mr Johnsons case, what needed to be justified was his current liability to deportation when he would not be so liable but for the accident of birth outside wedlock for which he was not responsible. No justification had been suggested for this and it cannot therefore be said that his claim that deportation would breach his Convention rights was clearly unfounded [34]. In these circumstances the certificate would be quashed and Mr Johnsons appeal allowed to proceed. His appeal is also, for the same reasons, certain to succeed [35]. The court went on to consider whether any of the statutory provisions affecting persons in Mr Johnsons position should be subject to a declaration that they are incompatible with Convention rights, pursuant to s 4 HRA. It was not necessary to do so in order to dispose of the case, but the court makes such a declaration in respect of paragraph 70 of Schedule 9 to the Immigration Act 2014, which imposes a requirement that an applicant for British citizenship who, but for their parents marital status would have automatically acquired citizenship at birth, be also of good character [36 39].

Private Jason Smith, a member of the Territorial Army since 1992, was mobilised for service in Iraq in June 2003. After acclimatising for a short period in Kuwait he was sent to a base in Iraq, from where he was billeted in an old athletics stadium. By August the daytime temperature in the shade was exceeding 50 degrees centigrade. On 9 August he reported sick, complaining of the heat. Over the next few days he was employed in various duties off the base. On the evening of 13 August he collapsed at the stadium and died of heat stroke. An inquest found that Private Smiths death was caused by a serious failure to address the difficulty he had in adjusting to the climate. Private Smiths mother commenced proceedings to quash that verdict and for a new inquest to be held. She argued that the United Kingdom had owed her son a duty to respect his right to life which was protected by article 2 of the European Convention on Human Rights (ECHR) and that the inquest had to satisfy the procedural requirements of an investigation into an alleged breach of that right. The Secretary of State denied that a further inquest was required on the facts of the case. He also denied that a soldier on military service abroad was subject to the protection of the Human Rights Act 1998 when outside his base, while accepting that in this case Private Smith had died within the UKs jurisdiction on the base. The High Court held that Private Smith had been protected by the Human Rights Act 1998 at all times in Iraq and ordered a fresh inquest. Before the Court of Appeal the Secretary of State agreed he would not submit to the new coroner that the requirements of article 2 were inapplicable. Notwithstanding that concession, both the Court of Appeal and the Supreme Court considered that the appeal of the Secretary of State raised two issues of general importance and of practical concern: whether on the true interpretation of article 1 of the ECHR British troops operating on foreign soil fell within the jurisdiction of the United Kingdom (the jurisdiction issue); and whether the fresh inquest into the death of Private Smith must conform with the procedural requirements implied into article 2 (the inquest issue). The Court of Appeal answered both questions in the affirmative. The Supreme Court allowed the appeal on the jurisdiction issue (Lady Hale, Lord Mance and Lord Kerr dissenting) and unanimously dismissed the appeal on the inquest issue. It held that it was not necessary in every case of a death of a serviceman abroad to carry out an investigation which examined whether there was fault on the part of the state because (a) the Human Rights Act 1998 did not apply to armed forces on foreign soil and (b) in any event, there was no such automatic right. The type of investigation would depend on the circumstances of the case. The jurisdiction issue Lord Phillips stated that the European Court of Human Rights in Strasbourg had held that jurisdiction within the meaning of article 1 was essentially territorial but extended in exceptional circumstances requiring special justification to other bases of jurisdiction. The difficulty lay in defining those exceptions [para 11]. It was unlikely that the Contracting States, when they agreed the ECHR in 1951 in the aftermath of a global conflict in which millions of troops had been deployed, regarded it as desirable or practicable to extend the protection of article 2 to troop operations abroad [para 58]. It was a novel suggestion that a states armed forces by reason of their personal status fell within the jurisdiction of the state when on foreign soil and the proper tribunal to resolve the issue was the Strasbourg Court itself [para 60]. Lord Collins observed that in practice the exceptions recognised by the Strasbourg court had consisted of (i) territorial jurisdiction by a state over the territory of another contracting state; (ii) extensions of territorial jurisdiction by analogy and (iii) commonsense extensions of the notion of jurisdiction to fit cases which plainly should be within the scope of the ECHR [para 305]. This case came within none of them. Jurisdiction could not be established simply on the basis of the UKs authority and control over them, nor were there policy grounds for extending the scope of the ECHR to armed forces abroad, which would ultimately involve the courts in issues relating to the conduct of armed hostilities which were essentially non justiciable [para 308]. Lord Mance, dissenting, considered that as an occupying power in Iraq, the UK had under international law an almost absolute power over the safety of its forces. The relationship was not territorial but depended on a reciprocal bond of authority and control on the one hand and allegiance and obedience on the other [para 192]. In his view the Strasbourg court would hold that the armed forces of a state were within the meaning of article 1 and for the purposes of article 2 wherever they might be [para 199]. Lord Kerr agreed. If the state could export its jurisdiction by taking control of an area abroad it could equally do so when it took control of an individual. In his view this had already been recognised albeit obliquely by the Strasbourg court [para 331]. The inquest issue Lord Phillips stated that where there was reason to suspect a substantive breach by the state of the article 2 right to life, it was established that the state of its own motion should carry out an investigation into the death which had certain features: a sufficient element of public scrutiny, conducted by an independent tribunal, involving the relatives of the deceased and which was prompt and effective [para 64]. There was no automatic right to such an investigation whenever a member of the armed forces died on active service [para 84]. The UK had a staged system of investigation into deaths. Some form of internal investigation would always be held into military deaths in service [para 85] and a public inquest was required whenever a body was brought back to this country. This would satisfy many of the procedural requirements of article 2. If, in the course of the inquest, it became apparent that there might have been a breach by the state of its positive article 2 obligations, this should, insofar as possible, be investigated and the result reflected in the coroners verdict, so as to satisfy the procedural requirements of article 2 [para 86]. In Private Smiths case, the courts below were correct to hold that the coroner should have found a possibility that there had been a failure of the system to protect soldiers in extreme temperatures. It followed that the new inquest should comply with the procedural requirements of article 2 [paras 87 and 88]. Lord Rodger considered that the Secretary of State had correctly conceded that an article 2 investigation was needed on the facts of this case but this was not always the position. The protection of the armed forces could never be complete; deaths and injuries were inevitable. It was for this very reason that the armed forces deserved and enjoyed the admiration of the community [para 122]. It was contrary to the very essence of active military service to expect the authorities to ensure that troops would not be killed or injured by opposing forces [para 125]. Furthermore, many issues of concern to the relatives of soldiers killed on active service raised questions of policy not legality, and would fall outside the scope of any investigation by a coroner [para 127].

On 12 May 2006 the appellant became a volunteer adviser for the respondent following an interview. The position was unpaid and no contract was signed. However, both parties signed a volunteer agreement setting out the nature of the role and what was expected of them. The volunteer agreement was not legally binding. After signing the agreement the appellant completed a period of training before starting as a voluntary adviser carrying out a wide range of advice work duties. Around a year later, on 21 May 2007, the appellant claims she was asked to cease to act as a volunteer adviser in circumstances amounting to discrimination on grounds of disability. As a result the appellant sought to bring proceedings against the respondent. The substance of this claim has yet to be the subject of adjudication as the Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal have all held that the Employment Tribunal has no jurisdiction to hear the case. Each held that the appellant, as a volunteer rather than an employee, falls outside the scope of the protections against discrimination on the grounds of disability afforded by the Disability Discrimination Act 1995 and Directive 2000/78/EC (the Framework Directive). The appellant appeals to the Supreme Court on the basis that the lower courts erred in interpreting the Directive. She argues that her voluntary activities constituted an occupation for the purposes of article 3(1)(a) of the Framework Directive, that the protection against discrimination on the grounds of disability intended to be afforded by the Directive should therefore extend to her, and that effect should be given to this conclusion either under the principle in Marleasing Case C 106/89 or alternatively by recognising her as having a direct claim under the principle in Mangold Case C 144/04. She further contends that the meaning of the Framework Directive is at least open to reasonable doubt and that a reference should be made to the Court of Justice of the European Union (CJEU) in order to clarify whether the Directive applies to at least some categories of volunteer. The Supreme Court unanimously dismisses the appeal. Since the appellant had no contract, she did not on the face of it benefit by the domestic protection afforded by the Disability Discrimination Act 1995. Whether she could have any claim thus depended upon whether it is the intention of article 3(1)(a) of the Framework Directive that there should be wider protection, covering volunteers in her position. In the Courts unanimous view, that is not its intention. This is not open to reasonable doubt and there is no need for a reference to the CJEU for a preliminary ruling. The judgment of the Court is given by Lord Mance. The Directive is not unlimited in scope or extent; instead it confers carefully defined protections against discrimination on grounds of disability to apply in specified circumstances [24]. In this sense the Directive is of a piece with other anti discrimination measures enacted both domestically and at EU level which confer specific protections on specified groups of persons [24 26]. The appellant relies upon the Directives application in relation to access to employment, to self employment or to occupation (article 3(1)(a)). However, the Court does not accept that her complaint relates to access to occupation within the meaning of these words. [45]. The concept of access to occupation contemplates access to a sector of the market rather than to a particular post. The words must be understood in the context of article 3(1)(a) of the Directive and do not operate on the same level as the terms employment and self employment [29 30]. This interpretation finds support from other language versions of the text, from the lack of any reference to occupation in article 3(1)(c) concerning employment and working conditions, including dismissals and pay and from the internationally accepted meaning of occupation in the context of the International Labour Organisations Convention No 111, to which Convention the Directive refers in recital 4 [31 35]. The legislative history confirms that it was not intended that article 3(1)(a) should encompass voluntary work. First, no reference was made to voluntary work in the European Commissions original proposal or in the annexed impact assessment [37 38]. Second, a proposed amendment emanating from the European Parliament which would have extended article 3(1)(a) to include unpaid or voluntary work was not accepted by the Council [39 41]. Subsequent to the passage of the Directive the European Commission has continued to review its implementation by Member States, without it ever being suggested that the apparent absence in the UK or any other Member State of general protection in respect of to volunteers amounts to a failure to properly implement the Directive [42]. There is no scope for reasonable doubt about the conclusion that the Directive does not cover voluntary activity [46 48]. Recommendations by the French equivalent of the Equality and Human Rights Commission (EHRC) indicating otherwise carry no greater weight in the construction of the Directive than the EHRCs own submissions before the Supreme Court in this case [49 51]. Since article 3(1)(a) does not extend to voluntary activities of the sort undertaken by the appellant, it is unnecessary to consider the issues of EU law which would have arisen from a contrary conclusion, particularly the possible relevance and scope of the principle in either Marleasing or Mangold [58].

The case concerns the application of the criteria for making a care order under section 31 of the Children Act 1989 when the risk is of future psychological or emotional harm and the role of the appellate courts once the trial judge has made an order. The child concerned was removed from her parents at birth under an interim care order. The mother was for many years in an abusive relationship with her step father. She also has criminal convictions for dishonesty and a history of making false allegations. She has been diagnosed with somatisation disorder, a condition which involves making multiple complaints to medical professionals of symptoms for which no adequate physical explanation can be found. In the course of the proceedings she was also diagnosed with factitious disorder, a related psychiatric condition involving the deliberate exaggeration or fabrication of symptoms and the recitation of a false medical history. In 2009 she escaped the abusive relationship with her stepfather, leaving behind their ten year old daughter, and quickly formed a relationship with the father of this child, who has been convicted of many serious offences. He has four older daughters, with whom he has an amiable relationship but his involvement in their lives has been marginal, not least because of the many years he has spent in prison. While the child was in interim care, the parents visited frequently and formed a good relationship with their daughter. They had shown their commitment to her in spades. The trial judge found that, if placed in her parents care, there was a risk that the child would be presented for and receive unnecessary medical treatment, that she might grow up to copy her mothers behaviour, and at the very least be confused at the difference between the real world and her mothers dishonest presentation of it. There would have to be a multi disciplinary programme of monitoring and support to avert these risks and the parents would not be able to co operate with such a programme because of their fundamentally dishonest and manipulative approach towards social workers and other professionals whom they perceived to be challenging of their points of view. Accordingly, there was no other way in which the feared harm to the child could be prevented than by a care order with a view to adoption. The Court of Appeal upheld that judgment. Both parents appealed to the Supreme Court. The Supreme Court by a majority of 4:1 (Lady Hale dissenting) dismisses the appeal. The High Court judge was entitled to conclude that the threshold conditions for the making of a care order had been satisfied in this case [48, 64, 131]: Before a care order may be made under section 31 of the 1989 Act, the judge has to be satisfied that: (a) the child is suffering or is likely to suffer significant harm; and (b) the harm or likelihood of harm is attributable to the care likely to be given to the child if a care order is not made, not being what it would be reasonable to expect a parent to give to the child, or to the childs being beyond parental control [23, 177]. A likelihood of significant harm means no more than a real possibility that it will occur, but a conclusion to that effect must be based upon a fact or facts established on the balance of probabilities. Harm means ill treatment or impairment of health or development, and development includes emotional development. Whereas the concept of ill treatment is absolute, the concept of impairment of health or development is relative to the health or development which could reasonably be expected of a similar child [24, 25, 178]. Courts should avoid seeking to explain the meaning of the word significant. However, the severity of the harm required is inversely correlated with the likelihood of the harm, i.e. the less likely the harm is to occur the more serious the harm will need to be [26, 56, 188]. Article 8 of the ECHR is not engaged when a court assesses whether or not harm is significant for these purposes; that provision will only be engaged in a case such as this if there is an interference with the right to respect for family life, which can only occur at the stage of determining whether or not a care or supervision order should be made [29, 62, 189]. The character of the parents is relevant at every stage of the inquiry, including the assessment of whether the threshold conditions set out in section 31(2) of the 1989 Act have been satisfied because the character of the parents may affect the quality of their parenting [31, 71]. The conduct of the parents giving rise to harm or the likelihood of harm is not required to be intentional or deliberate; the harm or likelihood of harm need only be attributable to the care given by the parents or the care likely to be given by them not being what it would be reasonable to expect a parent to give to the child [31]. A determination as to whether the threshold conditions for a care order have been satisfied depends on an evaluation of the facts of the case as found by the judge at first instance; it is not an exercise of discretion. An appellate court may interfere with such a decision only if it is wrong, but it need not have been plainly wrong [44, 61, 110, 139, 203]. In determining whether the threshold conditions for a care order are satisfied and whether it is appropriate to grant a care order, an appellate court must have regard to the advantages which the judge at first instance had over an appellate court, including the judges ability to assess what may happen to the child in the future on the basis of the oral evidence given by the candidates for the care of the child [40 42, 58 60]. The High Court judge was also entitled to conclude that the making of a care order in relation to Amelia, with a view to her being adopted was necessary and did not violate the rights of Amelia, M, or F to respect for their family life under article 8 of the ECHR [48, 98, 131 133]: A high degree of justification is needed under article 8 if a decision is to be made that a child should be adopted or placed in care with a view to adoption against the wishes of the childs parents. Domestic law runs broadly in parallel with article 8 in this context: the interests of the child must render it necessary to make an adoption order. A care order in a case such as this must be a last resort [34, 74 78, 82, 130, 135, 198, 215]. Section 6 of the Human Rights Act 1998 does not require an appellate court to determine afresh issues relating to Convention rights; an appellate court, including the Supreme Court, is required only to conduct a review of the lower courts decision [36 37, 83 90, 136]. The making of a care order, however, is not a purely discretionary decision; a trial judge has an obligation under section 6 of the 1998 Act to ensure that he/she does not violate article 8 of the ECHR. Accordingly, it is not appropriate for an appellate court reviewing such a decision to apply the test normally used when reviewing a purely discretionary decision, i.e. whether the lower court exceeded the generous ambit within which reasonable disagreement is possible [45]. The appropriate test is whether the lower court was wrong [47, 91 92, 139]. Lady Hale and Lord Kerr disagree with this analysis, taking the view that an appellate court reviewing whether a care order violates article 8 of the ECHR must consider that issue for itself on the basis of the material put before it (whilst attributing appropriate weight to the reasons given by the lower court) [115 120, 204 205]. There are a number of features relative to the personalities of Amelias parents, and to the psychiatric conditions of M, which raised a real possibility that, in their care, Amelia would suffer impairment of her emotional development. The key feature of this case which justified the judges decision not only that the threshold conditions for making a care order were satisfied but that such an order was appropriate was that Amelias parents were unable to offer the elementary cooperation with professionals that her safety in their home would require. Adoption was the only viable option for Amelias future [48, 99 100, 132, 106]. Lady Hale takes the view that this was a case based on the mere possibility that the child would suffer psychological harm in the future. There was no risk that these parents would neglect or abuse their child. Even if this were sufficient to cross the threshold laid down in section 31(2) of the Children Act 1989, it had not been demonstrated that a care order with a view to adoption was necessary to protect the child that nothing else would do when nothing else had been tried. The care order was not, therefore, a proportionate response to the harm which is feared.

Vauxhall Motors Ltd has a large manufacturing plant at Ellesmere Port in Cheshire on the banks of the Manchester Ship Canal. When the plant was built in the early 1960s, Vauxhall entered into a contract (the Licence) with the Manchester Ship Canal Company (MSCC) allowing Vauxhall to construct a system of pipes and chambers across MSCCs land (the Spillway) and to drain surface water and treated industrial effluent into the Canal. Vauxhall agreed to pay 50 per year to MSCC in exchange for these rights. Clause 5 of the Licence allowed MSCC to terminate the Licence if (among other things) Vauxhall did not pay its annual rent within 28 days of a demand. Vauxhall duly built the Spillway and has used it for drainage from its Ellesmere Port factory ever since. Its right to use the Spillway is worth several hundreds of thousands of pounds per year. In early 2014, by administrative oversight, Vauxhall failed to pay its rent within 28 days of a demand. On 10 March 2014, MSCC served notice terminating the Licence under clause 5. This meant that Vauxhall faced having to negotiate a new licence at a cost of hundreds of thousands per year for its failure to pay 50. Vauxhall asked the High Court to grant equitable relief from forfeiture. This doctrine allows the court to relieve parties from terms which forfeit their rights in order to secure some lesser primary obligation if they operate harshly. In this case, MSCCs right to terminate under clause 5 was a forfeiture clause which secured Vauxhalls obligation to make an annual payment of 50. HHJ Behrens QC granted relief from forfeiture, effectively reinstating the Licence on condition that Vauxhall paid its arrears and certain other costs. The Court of Appeal upheld his decision. MSCCs appeal to the Supreme Court concerns whether the court had jurisdiction to grant relief on the facts of this case. MSCC argues that in relation to land the courts can only relieve parties from the forfeiture of proprietary rights which would exclude Vauxhalls contractual rights under the Licence. Vauxhall argues the doctrine is broad enough to protect any right to use land. The Supreme Court unanimously dismisses the appeal. Lord Briggs gives the main judgment with which Lord Carnwath, Lady Black and Lord Kitchin agree. Lady Arden gives a concurring judgment. The Court rejects MSCCs argument that, in the context of land, equitable relief is only available for forfeiture of property rights, as opposed to a right to possession under a contract. In the context of personal property (property which is not land), the decided cases suggest that equitable relief is available for forfeiture of proprietary or possessory rights [24]; [28]; [32] [34]. On a proper analysis, possessory rights means something falling short of ownership, or of a proprietary interest [43]. Now that it is settled that equitable relief may apply to forfeiture of possessory rights in the context of personal property, there are powerful reasons why it should also do so in the context of land. First, the doctrine of relief from forfeiture historically developed in the context of land [44]. Secondly, there is no logical or principled reason for distinguishing between rights over land and rights over other forms of property [45]; [76]. Thirdly, MSCCs distinction would lead to arbitrary results. The courts should identify the scope for equitable intervention by taking a principled approach and consider the nature and purpose of its power to grant relief [47]. The concept of possessory rights does not lead to significant uncertainty in the law. It is frequently used in the context of commercial law and there is no immediately obvious reason why it should not be used in relation to rights over land [41] [42]. Therefore, the Court concludes that the courts may relieve against the forfeiture of possessory rights over land. However, the majority rejects Vauxhalls wider argument that relief from forfeiture should extend to all rights to use land [50]. Lady Arden expresses no view on this point because it was not fully argued and is not essential to the appeal [69]. On the facts, this Licence did grant possessory rights to Vauxhall. As the Court of Appeal explained, Vauxhall gained virtually exclusive possession of the Spillway and a high degree of control over it in perpetuity. As a result, Vauxhall was entitled to ask the court for relief from forfeiture of those rights [46]; [48]; [56] [57]; [89] [90]. In her concurring judgment, Lady Arden sets out the underlying principles in detail [60] [91]. On her approach, the key question is not what category of rights are at stake, but whether the circumstances in which relief from forfeiture is sought to be invoked are those in which equity would grant relief [76] [77]. She holds that the extension of relief from forfeiture to possessory rights does not create an unacceptable loss of certainty [88].

In January 1997, Mr Peacock was convicted of five offences of conspiracy to supply controlled drugs and sentenced to 12 years imprisonment, reduced on appeal to ten years. Mr Peacock was found to have benefited from his drug trafficking to the extent of 273,717.50. However, at the time of sentence, he owned realisable assets worth only 823, so, accordingly, a confiscation order was made against him just for this lesser sum. Following his release from prison in November 2000, Mr Peacock went into the property business and, entirely legitimately, acquired very substantial assets. The prosecution sought recovery of the full 273,717.50 and applied to the High Court. The High Court granted the appropriate certificate increasing the realisable amount under the original confiscation order; and, on application by the prosecution, the Crown Court substituted for the 823 originally recoverable the sum of 273,717.50. Mr Peacock appealed the lawfulness of the certificate issued by the High Court. The Court of Appeal dismissed his appeal. Had Mr Peacock committed the drug trafficking offences of which he was convicted after 24 March 2003, the Proceeds of Crime Act 2002 (POCA) would have applied and, under section 22(3) of that Act, Mr Peacock would clearly have been liable to a further court order increasing to the full extent of his criminal gain the amount recoverable under the confiscation order by reference to his after acquired assets. However, Mr Peacock committed the relevant drug trafficking offences in 1995, and the question therefore arose whether the same position had obtained under section 16(2) of the Drug Trafficking Act 1994 (the 1994 Act). The questions for the Supreme Court were: (1) Did section 16 of the 1994 Act apply after POCA came into force on 24 March 2003? (2) If section 16 was in force after 24 March 2003, was the High Court entitled to have regard to after acquired assets under section 16(2) when issuing a certificate to increase the amount payable under the confiscation order? The Supreme Court dismisses the appeal by a majority (Lord Hope and Lady Hale dissenting on the second issue). Lord Brown gives the leading judgment of the Court with which Lord Walker and Lord Wilson agree. The first issue before the Court is dealt with swiftly and by unanimous agreement. The statutory transitional provisions implemented alongside POCA in 2003 disapplied the entire POCA confiscation order regime in respect of offences committed prior to 24 March 2003. In respect of such offences, the whole confiscation order scheme provided for by the 1994 Act continues in force. Accordingly, section 16 of the 1994 applies to Mr Peacocks circumstances [16]. The statutory purpose of the 1994 Act could hardly have been made clearer: to strip those convicted of serious crimes of the proceeds of their wrongdoing [33] [34]. Section 16(2) of the 1994 Act enables the High Court, on application, to issue a certificate certifying that the amount that might be realised in the case of a person against whom a confiscation order has been made is greater than the amount taken into account in making the confiscation order (whether it was greater than was thought when the order was made or has subsequently increased). Nothing in the definition sections of the 1994 Act requires section 16(2) to be construed as if it refers to the amount that might have been realised at the time the confiscation order was made. On the contrary, section 16(2) is plainly directed to the amount that might be realised now and by reference to realisable property now held by the defendant [21]. It is common ground between the parties that, in relation to pre acquired assets, the inquiry is into their value at the time of the application rather than their value at the time when the confiscation order was made [44]. That the provision also applies to after acquired assets property accruing to a person (whether as earnings or by gift, inheritance or some other windfall) without a corresponding diminution in that persons existing assets [35] is clear from the words in section 16(2) in parentheses which encompass all ways in which the amount might have grown [22]. Parliament would have made it clearer had its intention been to exclude after acquired assets from the scope of section 16(2) [49]. Section 17 of the 1994 Act, enabling the High Court on application to grant a certificate that the defendants realisable property is inadequate to meet the amount remaining to be recovered under the confiscation order, is symmetrical to section 16 [23], [41]. They are opposite sides of the same coin [46]. It is logical that, by the same token that a defendant cannot require his after acquired assets to be ignored in the determination of his present ability to pay, nor should they be ignored in deciding whether he can pay an additional amount up to the point when he will have disgorged an amount equivalent to all the benefit which has accrued to him from drug trafficking [23]. By enacting section 16, Parliament decided to leave it open to the courts as a matter of discretion under section 16(4) to deprive a defendant of his criminal gains on an ongoing basis irrespective of precisely how and when he came by any increased wealth [29] [30], [47]. Accordingly, the section 16(2) certificate here was lawfully issued and the appeal is dismissed [31]. Lord Hope (with whom Lady Hale agrees) dissents from the outcome reached by the majority of the Court. The effect of reading section 16(2) so as to include legitimate after acquired assets could be to penalise a defendant for the efforts of his own enterprise and hard work after he is released from custody. To deprive Mr Peacock of the increase in the value of his assets legitimately accrued following his release from custody ought not, according to well established principles, to be assumed to have been what Parliament intended unless it provided for this in clear terms [59]. The general principle of construction, of universal application, is that a statute should not be held to take away property rights without compensation unless the intention to do so is expressed in terms which are clear and unambiguous [60]. Although there are no words that exclude after acquired property from the scope of section 16, the confiscatory nature of the exercise under that provision requires us to be satisfied that the inclusion of after acquired property within its scope was what Parliament really intended and to give the benefit of the doubt to the defendant if we are not [64], [71].

TN, MA and AA: (a) are Afghan nationals; (b) were smuggled into the UK as unaccompanied minors; (c) claimed asylum here; and, (d) had their accounts disbelieved and their claims rejected. TN travelled to the UK in August 2010 and was arrested on 8 September 2010. TNs agreed date of birth is 1 January 1994. MA arrived in the UK on 27 July 2009. He claimed to be 13 years old but was assessed to be 16 and given a notional birth date of 1 January 1993. AA arrived in the UK in mid 2011 and was, subsequently, arrested by the police. AAs accepted date of birth was 29 December 1995. They all claimed asylum on the asserted basis that if they returned to Afghanistan they would be in danger from the Taliban, the government and/or the police. When making these asylum decisions, the Respondent had to comply with the three EU Directives harmonising the asylum systems of the EU Member States: the Reception Directive (2003/9/EC), the Qualification Directive (2004/83/EC) and the Procedures Directive (2005/85/EC). Article 19.3 of the Reception Directive requires Member States to endeavour to trace the members of [the unaccompanied minors] family as soon as possible. The Respondent failed to do this in making the decision to reject the Appellants asylum claims. Article 39 of the Procedures Directive requires Member States to ensure that applicants for asylum have the right to an effective remedy before a court or a tribunal against a decision taken on their application for asylum. Sections 82 and 83 of the Nationality, Immigration and Asylum Act 2002 (NIAA) (as in force at the material time) allow an appeal of an asylum rejection only in certain circumstances. The relevant circumstances are where the applicant no longer has leave to enter and remain in the UK, where a decision to remove the applicant has been made, or where the applicant has been granted leave to enter or remain in the UK for over one year. Otherwise, the decision can only be judicially reviewed. In accordance with the Respondents published policy, TN, MA and AA were granted discretionary leave to enter and remain in the UK until the age of 17 years and six months. As TN and MA were aged over 16 years and six months when their asylum applications were rejected, they could not appeal their asylum decisions (although they could: (a) judicially review it; and/or, (b) appeal the length of their discretionary leave) as they did not fall within the section 82 and 83 NIAA circumstances. They could only appeal the asylum rejection when a decision to remove them had been taken at the end of their discretionary leave at which point they would be unable to rely on their age as a ground for claiming refugee status. TN and MA appealed the length of their discretionary leave and judicially reviewed their exclusion from an appeal until their removal, arguing this violated their rights to an effective remedy under article 39 of the Procedures Directive. TNs appeal as to the length of discretionary leave was allowed by the Upper Tribunal but the Court of Appeal dismissed the other appeals. AA appealed pursuant to section 83 NIAA. Along with TN and MA, he argued that the Respondents failure to carry out her tracing duty vitiated her decision to reject the asylum claims. Moreover, if the Respondent had complied with her tracing duty it would have produced evidence to support their accounts which the Respondent had disbelieved. The Court of Appeal also dismissed these appeals. The Supreme Court (with Lord Toulson giving its judgment) unanimously dismisses the appeals. Right to an effective remedy issue TNs and MAs right of appeal to the tribunal was not immediate but was still effective. The deferment was not for long and there were understandable reasons for it. For example, where there is a surge of asylum applications following short term crisis conditions in a particular country it is not in the public interest, or the interest of the applicants, for tribunals to become clogged with cases which are due to be reviewed before long in any event [32]. Although it was argued that TN and MA would thereby be deprived of the ability to argue that they should be protected on the basis of the status as minors who were effectively orphans, when it comes to the kinds of risk including forcible recruitment and sexual exploitation persecution is not respectful of birthdays. In any event, any entitlement to refugee status on the basis of age would be time limited in the same way to correspond with the attendant risk [33]. As a result, it is not necessary to consider whether judicial review provides an effective remedy [34]. Tracing issue The principle established in the case of Ravichandran is sound; asylum appeals should be determined by reference to the situation at the time of the appellate decision rather than by reference to the situation at the time of the original decision [70]. The exception to this established in the case of Rashid that an abuse of power by the state enables the court to intervene to give appropriate relief to compensate a past breach of duty even if the asylum applicant is presently no longer in need of protection lacks a satisfactory principle, is unclear and should no longer be followed [71 72]. In deciding whether to accept an applicants account, the tribunal must act on the evidence before it with no presumption of credibility. The fact that the Respondent fails properly to discharge her tracing obligation does not affect this [72 73]. Given that MAs and AAs accounts were disbelieved by the Upper Tribunal, their appeals should not have been allowed merely by reason of the Respondents breach of her tracing obligation [74]. The purpose of tracing a childs family is for the childs welfare in promoting reunification, not for the purpose of gathering evidence, although it may lead to that result. The child should be consulted about tracing before any steps are taken [69]. Neither MA nor AA gave any information from which their family could be traced and the conclusion that their accounts lacked credibility was properly open to the Upper Tribunal. In relation to TNs discretionary leave application, the Respondent can now re take her decision pursuant to these principles [74].

On 29 January 2009, the chemical carrier mv LONGCHAMP (the vessel) was transiting the Gulf of Aden. Pirates boarded the vessel and ordered its course to be altered towards the Bay of Eyl, Somalia. After seven weeks of negotiations, the crisis management team formed by the vessels owners (the Appellants) agreed a ransom in the amount of US $1.85m (the initial demand had been for US$6m). The cargo on the vessel was carried by the cargo interests (the Respondents) under a bill of lading which stated on its face that General Average, if any, shall be settled in accordance with the York Antwerp Rules 1974 (the Rules). General Average refers to the system of maritime law by which sacrifices of property made, and loss and expenditure incurred, as a direct result of actions taken for preserving a common maritime adventure from peril, are rateably shared between all those whose property is at risk. The Rules are internationally agreed and derive legal force through contractual incorporation. They aim to achieve uniformity in ascertaining whether losses fall within the principle of general average, the method of calculating those losses and deciding how they are to be shared. The essential issue in this appeal was whether the vessel operating expenses incurred during the period of negotiation (the negotiation period expenses) were allowable in general average under Rule F of the Rules which provides that any extra expense incurred in place of another expense which would have been allowable as general average shall be deemed to be general average and so allowed without regard to the saving, if any, to other interests, but only up to the amount of the general average expense avoided. An adjudicator found that the negotiation period expenses fell within Rule F. The Respondents challenge to the adjudicators decision was dismissed in the Commercial Court. The Court of Appeal allowed the Respondents subsequent appeal. The Appeal is allowed. Lord Neuberger gives the lead judgment with which Lord Clarke, Lord Sumption and Lord Hodge agree. Lord Sumption gives a concurring judgment. Lord Mance dissents on the facts. The Appellants submitted that the negotiation period expenses fell within the expression expense incurred by the owners within Rule F and those expenses were incurred in place of another expense (i.e. the $4.15m saved as a result of the negotiations with the pirates). Further, the negotiation period expenses were less than the general average expense avoided and it thereby followed that they were properly allowable under Rule F [14]. The Court found that the Judge and Court of Appeal incorrectly assumed that the owners had to establish that it would have been reasonable to accept the pirates initial demand in order to justify the contention that the negotiation period expenses were allowable under Rule F. Such an assumption would lead to very odd results. It would mean that, if a ship owner incurs an expense to avoid paying a reasonable sum, he can in principle recover under Rule F, whereas if he incurs expense to avoid paying an unreasonable sum (i.e. a larger sum), he cannot recover [18]. Further, the reference in Rule F to another expense which would have been allowable as general average does not mean an expense whose quantum is such that it would have qualified as a claim under Rule A of the Rules (which refers to extraordinary sacrifice or expenditure) [19]. Therefore, subject to the Respondents other arguments, the negotiation period expenses fell under Rule F as they were incurred to avoid paying $6m [20]. The Respondents submitted that the negotiation period expenses did not fall within Rule F because the payment of reduced ransom of $1.85m was not an alternative course of action to the payment of the ransom originally demanded but was merely a variant [22]. The Court found that the incurring of the negotiation period expenses did represent an alternative course of action from the payment of the $4.15m (the amount by which the ransom was reduced). The former involved incurring vessel operating expenses and the latter involved paying a ransom [26]. To imply some qualification such as the requirement that the negotiation period expenses must be incurred so as to achieve an alternative course of action was very dangerous [29]. The Rules are an international arrangement and should be interpreted in the same way as an international convention or treaty, unconstrained by technical rules of English law or by English legal precedent, on broadly accepted general principles [29]. The Respondents raised four further points. Firstly, they contended that the Appellants could not recover under Rule F as they had never made a conscious and intentional choice between paying the $6m ransom initially demanded or negotiating [33]. The Court held that the question of whether one expense has been incurred in the place of another expense must be assessed objectively [34]. Secondly, the Respondents contended that the negotiation period expenses were not extra expenses within the meaning of Rule F. The Court found that there was no reason for restrictively interpreting the word extra so as to require an expense to be of a nature which would not normally have been incurred in response to the peril threatening the adventure [35]. Thirdly, the Respondents contended that the negotiation period expenses may have been incurred even if the owners had agreed to the pirates initial demand. However, the Judge considered that it was more likely than not that the vessel would have been released promptly if the $6m demand had been accepted. It was not appropriate for the Supreme Court to interfere with this finding of the Judge [36]. Finally, the Respondents contended that because Rule C of the Rules excludes indirect loss from general average expenditure and/or because Rule IX includes crew wages and maintenance where it applies, the claim in the present case must fail. The Court held that even though negotiation period expenses fall within Rule C it does not follow that they fall outside Rule F. By definition, sums recoverable under Rule F are not themselves allowable in general average, but are alternatives to sums which would be allowable [37]. Further, in terms of Rule IX, the Court did not agree that because vessel operating expenses were specifically allowed in one type of case that it should be presumed that they are excluded from every other type of case [38]. Both the lead judgment by Lord Neuberger [25] and the concurring judgment by Lord Sumption [42] observed that a variety of practices have been developed by practitioners in relation to the Rules but that the law cannot be determined by reference to these practices. In his dissenting judgment [45 68], Lord Mance concluded that whilst the Appellants had established that Rule F is in principle capable of applying to negotiation period expenses, they had not established on the only factual basis on which their case had been put that they had a claim under Rule F [68].

The question on this appeal was whether the appellant, Mr Anson, was entitled to double taxation relief on income he remitted to the UK from the US. This depends on the interpretation of article 23(2)(a) of the UK/US Double Taxation Convention 1975 and its successor, article 24(4)(a) of the UK/US Double Taxation Convention 2001. The relevant question under both provisions is whether the UK tax is computed by reference to the same profits or income by reference to which the United States tax is computed. The relevant period was the seven UK tax years running from 6 April 1997 to 5 April 2004, during which Mr Anson was a member of a Delaware limited liability company (the LLC), classified as a partnership for US tax purposes. As such, Mr Anson was liable to US federal and state taxes on his share of the profits. Mr Anson remitted the balance to the UK and was liable to UK income tax on the amounts remitted, as income arising from possessions outside the UK, subject to any double taxation relief which might be available. The respondents, the Commissioners, decided that he was not entitled to any double taxation relief on the basis that the income that had been taxed in the US was not Mr Ansons income, but that of the LLC. On Mr Ansons appeal, the First tier Tribunal (FTT) found that the combined effect of the Delaware LLC Act (the LLC Act) and the LLC agreement made between the members was that profits of the LLC belong to the members as they arise. It concluded that Mr Anson was taxed on the same income in both countries, so he was entitled to double taxation relief. The Upper Tribunal allowed the Commissioners appeal. The Court of Appeal dismissed Mr Ansons appeal. The Supreme Court unanimously allows Mr Ansons appeal. Lord Reed gives the leading judgment, with which Lord Neuberger, Lord Clarke, Lord Sumption and Lord Carnwath agree. The Upper Tribunal construed the FTTs finding that the profits belonged to the members as they arose as a legally erroneous finding that the profits vested in the members as their property. It was however clear from the FTTs decision that it based its conclusion that the profits belong as they arise to the members not upon a confusion between profits and assets, but upon expert evidence as to the combined effect under Delaware law of the LLC Act and the LLC agreement. The natural reading of the FTTs decision is that when it described the profits as belonging to the members it was referring to a personal right rather than a proprietary right. This is consistent with Mr Ansons expert evidence and with the comparison that the FTT made between the LLC and a Scottish partnership. [38 40] The Court of Appeal focused on whether Mr Anson had a proprietary right to the profits of the LLC as they arose, rather than addressing whether the income taxed in one country is the same as the income taxed in another. The Court of Appeal also accepted the Commissioners submission that the FTTs finding that the profits belonged to the members as they arose was a holding on UK domestic tax law, with which the Upper Tribunal was entitled to interfere. However, questions about whether the members had a right to the profits, and if so, what is the nature of that right, were questions of non tax law, governed by Delaware law. The FTTs conclusion on them was a finding of fact. Domestic tax law then fell to be applied to the facts as so found. [47 51] The Court of Appeal was also diverted by its consideration of the case of Memec plc v Commissioners of Inland Revenue [1998] STC 754, which was concerned with article 23(2)(b) of the 1975 Convention, not article 23(2)(a). [43, 50, 101 109] If the words used in article 23(2)(a) are given their ordinary meaning, it is necessary to identify the profits or income by reference to which the taxpayers UK tax liability is computed, primarily a question of UK tax law. Next one must identify the profits or income from sources within the US on which US tax was payable under the laws of the US and in accordance with the Convention. That is primarily a question of US tax law. Then it is necessary to compare the profits or income in each case, and decides whether they are the same. [113] While Mr Anson maintains that his income arises as profits are earned by the LLC, so that the income liable to tax is his share of the profits regardless of whether they are distributed, the Commissioners position is that his income arises only when profits are distributed by the LLC, so that the income liable to tax is the distributions. The premise of the Commissioners submissions is that, because the business of the LLC is carried on by the LLC, it follows that the profits generated by the business belong to the LLC. This argument is contradicted by the FTTs finding that the members of the LLC have an interest in the profits of the LLC as they arise. The FTT was entitled to make that finding. Therefore, Mr Anson was entitled to the share of the profits allocated to him, rather than receiving a transfer of profits previously vested (in some sense) in the LLC. It follows that his income arising in the US was his share of the profits. That is the income liable to tax under UK law, to the extent that it is remitted to the UK. Mr Ansons liability to UK tax is therefore computed by reference to the same income as was taxed in the US. Accordingly he qualifies for double taxation relief under article 23(2)(a). [115 121] The Court dismisses an alternative ground focused on a provision in article 23(2)(a) relating to the treatment of dividends. The history of that provision makes clear that the treatment of dividends reflects changes necessitated by the UKs adoption of corporation tax; nothing in the context suggests they were intended to have any wider implication. [60 96]

The appellant is an English qualified solicitor. In February 2010, she became a member of Clyde & Co Limited Liability Partnership (LLP). She signed a Deed of Adherence to the LLPs Members Agreement. The other parties to the Deed were the LLP and each of the Members individually. In November 2010, the appellant reported to the LLPs money laundering reporting officers that the managing partner of the Tanzanian law firm, with whom the LLP were doing business, had admitted paying bribes to secure work and to secure the outcome of cases. She claims that these were protected disclosures within the meaning of section 43A of the 1996 Employment Rights Act (the 1996 Act). She also claims that she was subject to a number of detriments as a result, including suspending her and ultimately expelling her from the LLP in January 2011. These claims are denied by the LLP and have not yet been tried. In February 2011, the appellant brought claims in the Employment Tribunal against the LLP and one of its Senior Equity Members under the whistle blowing provisions of the 1996 Act. The respondents objected to her whistle blowing claim on the ground that she was not a worker within the meaning of section 230(3) of the 1996 Act and, as such, does not benefit from the protection given to whistle blowers. There are two definitions of worker for the purpose of that Act. Limb (a), not relevant to this case, covers an individual who has entered into, works under, or has worked under a contract of employment and Limb (b) of section 230(3) covers an individual who has entered into or works under or worked under any other contractwhereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer. The main question in this appeal is whether a member of a LLP can be a worker within the meaning of section 230(3)(b) of the Employment Rights Act 1996? The Employment Tribunal found that she was not a worker. The Employment Appeal Tribunal held that she was a worker. The LLPs appeal to the Court of Appeal was successful, but on a completely different ground from those argued in the Tribunals. The Court of Appeal, cited section 4(4) of the Limited Liability Partnership Act 2000 (the 2000 Act), which states that a member of a limited liability partnership shall not be regardedas employed by the [LLP] unless, if he and the other members were partners in a partnership, he would be regarded for that purpose as employed by the partnership. The Court of Appeal held that the phrase employed by included limb (b) contracts and, thus, the appellant was not a worker. The Supreme Court unanimously allows the appeal and holds that the appellant is a worker within the meaning of the 1996 Act. As such, she is entitled to claim the protection of its whistle blowing provisions. Lady Hale gives the lead judgment. The Court finds that there is no need to give such a strained construction to section 4(4). It is saying that, whatever the position would be if the LLP members were partners in a traditional partnership, then that position is the same in an LLP. The Court holds that that is how section 4(4) is to be construed [21]. The phrase employed by in section 4(4) covers a person employed under a contract of service [22]. The Court holds, however, that it does not also cover those who undertake to do or perform personally any work or services for another party to the contract. Section 4(4) of the 2000 Act does not mean that members of an LLP can only be workers within the meaning of section 230(3) of the 1996 Act if they would also have been workers had the members of the LLP been partners in a traditional partnership [23 28]. Next the Court considers the analysis of the Court of Appeal that underlying the statutory definition of worker is the notion that one party has to be in a subordinate relationship to the other. The Court of Appeal suggested that a member of a LLP would not by virtue of that status alone constitute either an employee or a worker. If by this, the Court of Appeal meant that those members who undertake personally to work for the LLP cannot be workers, then this Court does not agree. While subordination may sometimes be an aid to distinguishing workers from other self employed people, it is not a freestanding and universal characteristic of being a worker [30 40]. As the appellant has protection under the 1996 Act as interpreted in a conventional way, the Court does not find it necessary to decide whether her convention rights would require and permit it to interpret the Act compatibly [41 45]. In a concurring judgment, Lord Clarke agrees with Lady Hale that by the terms of the appellants contract with the respondent LLP, she undertook to perform personally certain work or services for it and her status was not by virtue of the contract that of a client or customer [47]. Lord Clarke adds that, in his opinion, the effect of the relevant provisions of the 1996 Act and the 2000 Act, read together, is that a person who is a limb (b) worker within section 230(3) is a person regarded for any purpose as employed by the LLP within the 2000 Act [49 54]. In a concurring judgment, Lord Carnwath emphasises that, in his view, the conclusion in this case turns on the special characteristics of a LLP, which is something of a hybrid as between a conventional 1890 Act partnership and a limited company. It does not necessarily have any direct relevance to the resolution of equivalent issues in relation to other forms of partnership, under English or Scottish law [55 59]. The main judgment leaves open the question of what the position would be in a traditional partnership.

The two appellants, Ms McCool and Mr Harkin, were at all material times married to one another. They were both convicted of a series of offences of making dishonest claims for state benefits by pretending that they were single people when they were not and, in the case of Mr Harkin, by claiming housing benefit for a house when he was living with Ms McCool at a different house. The Proceeds of Crime Act 2002 (the 2002 Act) came into force on 24 March 2003 (the commencement date). Section 156 of the 2002 Act provides for the making of orders to confiscate benefits obtained by criminal activity (confiscation orders). All of the offences in the present appeal, except one in each case, were committed after the coming into force of the 2002 Act. There are stipulations in the the commencement, transitional and savings provisions of the Proceeds of Crime Act 2002 (Commencement No 5, Transitional Provisions, Savings and Amendments) Order 2003 (the Commencement Order) which set out when the 2002 Act applies. The issue is whether, given these stipulations, a confiscation order under section 156 of the 2002 Act could be made by a Crown Court if the Crown disclaims reliance on any pre commencement offence for the purpose of the order. The Supreme Court by a majority of three to two (Lord Reed and Lord Mance dissenting) dismisses the appeal. Lord Kerr gives the main judgment. Lord Hughes gives a concurring judgment with which Lady Black agrees. Lord Reed gives the dissenting judgment, with which Lord Mance agrees. The appellants argue that the wording of the Commencement Order is such that where a defendant is committed for a number of offences, where any of the offences has been committed before the commencement date, then none of the offences can be dealt with under the 2002 Act. Lord Kerr observes that his would produce an anomalous result the appellants are effectively submitting that the jurisdiction of the court to make confiscation orders under the 2002 Act could be controlled by tactical decisions by the prosecution to not proceed with charging offences committed before the commencement date [11 12]. The overarching consideration is that it was Parliaments intention that (i) offences committed before the commencement date should not be included in the section 156 consideration; and (ii) offences committed after that date which could generate confiscation orders under the Act should be dealt with under section 156. It cannot have been intended that a number of post 2003 offences should be removed from the scope of the 2002 Act simply because the defendant was convicted of an associated offence before the commencement date [17]. Further, the court should seek to avoid an interpretation of the statute which would produce an absurd result. Here, the consequence of the 2002 Act being disapplied to a wide range of offences committed after the commencement date and requiring them to be dealt with under earlier legislation is undesirable. Contemporary cases would have to be dealt with according to standards and rules which have been replaced [24 26]. It is not necessary to read words into the statute in order to permit applications for confiscation orders for offences committed after the commencement date [38]. Lord Hughes agrees with Lord Kerr that it is not necessary to read words into the statute to achieve this result [68]. The issue depends on whether the offences referred to in section 156(2) are all offences or only those on which reliance is placed for the purposes of asking the court to make a confiscation order. He considers the differences between the earlier legislation and the 2002 Act and concludes that the key question is whether the construction proposed by the Crown would result in any unfairness to the defendants. If it would or might, then the principle that penal statutes must be construed strictly in favour of those penalised would carry considerable weight. There is nothing unfair in saying that the appellants should bear the confiscation consequences of post March 2003 offences, as required by the 2002 Act, unless those consequences differ in some way from what they would have been if they had not committed the earlier offences, which they do not [70 83]. There is no unfairness caused by any of the differences between the earlier regime and the regime under the 2002 Act where the 2002 Act regime is applied only to post commencement offences, because the rules which are being applied are those which were in force, and publicly known, at the time the offences generating the confiscation order were committed [93 94]. It is not improper for there to be an element of election by the Crown in relation to which offences are relied on for the confiscation process [97]. Although the question of the Court of Appeals power to put an error right by substituting an order did not arise given the conclusion, Lord Hughes notes that it ought not to be assumed that there is no such power [108 114]. Lord Kerr agrees with this analysis [55]. Lord Reed dissents from the conclusion of the majority and would have allowed the appeal. His view is that the language of the provisions cannot be interpreted as excluding offences which the prosecution had elected to leave out of account for the purpose of assessing the benefit obtained by the defendant [128].

This appeal arises from the fact that the foundation structures of two offshore wind farms at Robin Rigg in the Solway Firth, which were designed and installed by the respondent, MT Hjgaard A/S (MTH), failed shortly after completion of the project. The dispute concerns who bears the remedial costs in the sum of 26.25m. In May 2006, the appellants, two companies in the E.ON group (E.ON), sent tender documents to various parties including MTH, who in due course became the successful bidders. The tender documents included E.ONs Technical Requirements. The Technical Requirements laid out minimum requirements that were to be taken into account by the contractor, i.e. ultimately MTH. Amongst other things, the Technical Requirements called for the foundations to be in accordance with a document known as J101. J101 was a reference to an international standard for the design of offshore wind turbines published by an independent classification and certification agency. J101 provides for certain mathematical formulae to calculate aspects of the foundation structures. One such formula included , which was given a specific value. Only later, a review showed that the value given for was wrong by a factor of about ten. This error meant that the strength of the foundation structures had been substantially over estimated. Having been selected as the contractor for the works, MTH duly set about preparing its tender in accordance with E.ONs requirements and J101. Finally, E.ON and MTH entered into a contract under which MTH agreed to design, fabricate and install the foundations for the proposed turbines. Clause 8.1(x) of this contract stated that MTH should carry out the works so that they shall be fit for its purpose. Fit for Purpose was ultimately defined in a way that it included adherence to the Technical Requirements. The parties agreed to carry out remedial work immediately after the foundation structures started failing. These proceedings concern the question as to who should bear the cost of the remedial works. The High Court found for E.ON that Clause 8.1(x) of the contract ultimately referred to the Technical Requirements. Para 3.2.2.2 of the Technical Requirements and another provision, para 3b.5.1, required the foundations to be designed so that they would have a lifetime of twenty years. As they were not, MTH was held liable. On appeal, the Court of Appeal found otherwise. There was an inconsistency between paras 3.2.2.2 (and para 3b.5.1) of the Technical Requirements on the one hand and other contractual provisions (in particular adherence to J101) on the other hand. The Court of Appeal ruled that the other contractual provisions should prevail. The Supreme Court unanimously allows E.ONs appeal. Lord Neuberger gives the judgment, with which Lord Mance, Lord Clarke, Lord Sumption, and Lord Hodge agree. The central issue in this appeal is whether para 3.2.2.2 (and para 3b.5.1) of the Technical Requirements was infringed [27, 33]. The second limb of para 3.2.2.2 reads: The design of the foundations shall ensure a lifetime of twenty years in every aspect without planned replacement. Taking into account other aspects of the Technical Requirements, this can be read in two ways: either as a warranty that the foundations will actually have a lifetime for twenty years, or as an undertaking to provide a design that can objectively be expected to have a lifetime of twenty years. Although there is some force in the latter argument, especially in the contracts (exclusive) remedies regime [27 32], the question does not warrant an answer in this appeal. The foundations neither had a lifetime of twenty years, nor was their design fit to ensure one [24 32]. Therefore, the effect of para 3.2.2.2 according to its terms would be to render MTH liable. The reference to J101, the international design standard, which included the flawed value attributed to , does not require a different construction which would deviate from the natural language of para 3.2.2.2. Both J101 and para 3.2.2.2. are part of the same contract. The reconciliation of various terms in a contract, and the determination of their combined effect must be decided by reference to ordinary principles of contractual interpretation [37, 48]. While each case must turn on its own facts, the courts are generally inclined to give full effect to the requirement that the item as produced complies with the prescribed criteria, even if the customer or employer has specified or approved the design. Thus, generally speaking, the contractor is expected to take the risk if he agreed to work to a design which would render the item incapable of meeting the criteria to which he has agreed [38 44]. The Technical Requirements expressly prescribe only a minimum standard. It was the contractor, i.e. MTHs, responsibility to identify areas where the works needed to be designed in a more rigorous way (para 3.1.(1)). Further, it was contemplated that MTH might go beyond certain standards, including J101 (para 3.1.2) [45 47]. Finally, para 3.2.2.2 of the Technical Requirements is not too weak a basis on which to rest a contention that MTH had a liability to warrant that the foundations would survive for twenty years or would be designed so as to achieve twenty years of lifetime. Applying the ordinary principles of interpretation, in a complex contract, this interpretation gives way to the natural meaning of para 3.2.2.2 and is not improbable or unbusinesslike [48 51].

Section 29(1) of the Scotland Act 1998 (the Scotland Act) provides that any Act passed by the Scottish Parliament will not be law so far as any provision of the Act is outside the legislative competence of the Parliament. Section 29(2) says that a provision is outside of the legislative competence of the Scottish Parliament if, amongst other things: it relates to matters which are reserved to the UK Parliament (including international relations); is in breach of the restrictions in Schedule 4 of the Scotland Act (which specifies provisions of enactments passed by the UK Parliament which cannot be modified by the Scottish Parliament); or is incompatible with European Union (EU) law. On 29 March 2019, the UK is due to withdraw from the EU. On 13 July 2017, the UK Government introduced the European Union (Withdrawal) Bill (the UK Bill) in the House of Commons, to repeal the statute which had taken the UK into the EU and to make provisions to achieve legal continuity within each of the UKs constituent jurisdictions. On 26 June 2018, the UK Bill became an Act (the UK Withdrawal Act). The UK Withdrawal Act amended Schedule 4 to the Scotland Act to include itself within the prohibition against modification. On 27 February 2018, the Scottish Government introduced the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill (the Scottish Bill), to make its own provision for legal continuity following the UKs withdrawal from the EU. The Scottish Bill was passed by the Scottish Parliament on 21 March 2018. Section 17 of the Scottish Bill relates to subordinate legislation made by Ministers in the UK Government after withdrawal from the EU on matters of retained EU law which, if they were contained in a statute, would be within the legislative competence of the Scottish Parliament. The section provides that any such subordinate legislation will be of no effect unless the consent of the Scottish Ministers is obtained. Section 33 of and Schedule 1 to the Scottish Bill provide for the repeal of references to EU law and institutions of the EU in the Scotland Act. In accordance with section 33(1) of the Scotland Act, the Attorney General and the Advocate General for Scotland made a reference to the UK Supreme Court asking for a decision on whether the Scottish Bill is within the competence of the Scottish Parliament. The Supreme Court gives a unanimous judgment. It finds that the whole of the Scottish Bill would not be outside the legislative competence of the Scottish Parliament. However, section 17 would be outside the legislative competence of the Parliament because it would modify the Scotland Act and, at least in part, the sections referred to in the final paragraph below would be outside the competence of the Scottish Parliament because they would modify provisions of the UK Withdrawal Act. It is not for this Court to express any view on the question of which institutions of the UK should exercise the legislative powers currently held by EU institutions upon the UKs withdrawal. Instead, the role of the Court is to determine as a matter of law whether, and to what extent, the Scottish Bill would be within the legislative competence of the Scottish Parliament [11]. Is the Scottish Bill as a whole outside the legislative competence of the Scottish Parliament? The only relevant question is whether the Scottish Bill relates to relations with the EU (a reserved matter) [26]. To relate to a reserved matter, a provision must have more than a loose or consequential connection with it [27]. The Scottish Bill does not relate to relations with the EU. It simply regulates certain of the legal consequences of the cessation of EU law as a source of domestic law [33]. Is section 17 of the Scottish Bill outside the legislative competence of the Scottish Parliament? Under Schedule 4 to the Scotland Act, the Scottish Parliament does not have legislative competence to modify the Scotland Act [42]. An enactment is modified by a later enactment if it is implicitly amended, disapplied or repealed in whole or in part [51]. The UK Parliament has the power to authorise Ministers to make subordinate legislation, but the effect of section 17 would be to make the legal effect of such subordinate legislation conditional upon the consent of the Scottish Ministers. The imposition of this condition would be inconsistent with the recognition in section 28(7) of the Scotland Act that the UK Parliament has unqualified legislative power in Scotland. It would therefore have to be treated as impliedly amending (and thus modifying) section 28(7) of the Scotland Act [52]. Are section 33 of and Schedule 1 to the Scottish Bill outside the legislative competence of the Scottish Parliament? There is an exception to the rule that the Scottish Parliament does not have legislative competence to modify the Scotland Act, which allows the Parliament to repeal any enactment which is spent [69]. Spent means that the provision has no continuing legal effect [72]. The provisions which section 33 and Schedule 1 would repeal will not be spent until the UKs withdrawal from the EU [76]. However, the Scottish Ministers do not have power to bring section 33 into force until the UK has withdrawn, at which point the provisions to be repealed would have become spent [77]. As a result, section 33(1) and Schedule 1 do not breach Schedule 4 to the Scotland Act [79]. Are various provisions of the Scottish Bill outside the legislative competence of the Scottish Parliament because they (i) are incompatible with EU law, (ii) modify section 2(1) of the European Communities Act 1972 (ECA), and/or (iii) are contrary to the rule of law? None of the provisions which are challenged take legal effect until the provisions of EU law with which they are incompatible have ceased to have effect as a consequence of the UKs withdrawal from the EU. Without such legal effect, there is no incompatibility with EU law and no modification of section 2(1) of the ECA [84 85]. The challenge based on the rule of law is misconceived [86]. Can the Supreme Court consider the effect of the UK Withdrawal Act in the context of this reference? Yes, because the Courts task is to decide whether the Bill would be within the legislative competence of the Scottish Parliament if it received the Royal Assent at the time of the Courts decision [97]. What is the effect of the UK Withdrawal Act on the legislative competence of the Scottish Parliament in relation to the Scottish Bill? The UK Withdrawal Act is not a reserved matter but it is protected against modification under Schedule 4 [99]. Several provisions of the Scottish Bill in whole or in part amount to modifications of the UK Withdrawal Act. These are: section 2(2) [101]; section 5 [102]; section 7(2)(b) and 7(3) [103 104]; section 8(2) [105]; section 9A [106]; section 9B [107]; section 10(2), 10(3)(a) and 10(4)(a) [108 110]; section 11 [111 113]; section 13B, section 14, section 14A, section 15, section 16, section 19(1) and section 22 (to the extent that these provisions relate to section 11) [114 118, 120 121]; section 26A(6) [122]; and section 33 and Schedule 1 paragraphs 11(a) and 16 [123 124].

This appeal concerns the question whether the power to create criminal offences granted to Her Majestys government by section 1 of the United Nations Act 1946 (the 1946 Act) may only lawfully be exercised at or about the time of the relevant resolution by the Security Council of the United Nations which such order is implementing. At the time of the hearing of this appeal, the appellants, Forsyth and Mabey, were awaiting criminal trial on a number of charges, of which one is an offence of making funds available to Iraq contrary to the Articles 3(a) and 11(4) of the Iraq (United Nations Sanctions) Order 2000 (the Order). As a preliminary issue prior to the trial, the appellants sought to establish that the Order creating the offence of making funds available to Iraq was ultra vires section 1 of the 1946 Act. Section 1 grants power to the government to implement resolutions of the Security Council by an executive order without any parliamentary process. The appellants argument was that such a wide executive power could be justified only if the resolutions of the Security Council were implemented urgently and the power, therefore, must be construed as subject to its being exercised within a very short timescale. In essence, the appellants maintained that unless the power to make an order under the 1946 Act is exercised at or about the same time as the relevant Security Council resolution, that power is lost by the passage of time. The Order in question was made 10 years after the relevant resolution. The appellants lost both in the Crown Court and the Court of Appeal. The matter came before this court on 6 December 2010 when, at the outset of the hearing, the appellants were granted permission to appeal; at the conclusion of the hearing the appeal was dismissed for reasons to be given later. The present judgment contains those reasons. Lord Brown delivered the judgment of the court which held that the power conferred on the government by section 1 of the 1946 Act cannot be restricted by confining its exercise within an artificially restricted timeframe. The suggested analogy between the case of A v HM Treasury which was concerned with proper limits of the content of orders made pursuant to section 1 of the 1946 Act and the present appeal seeking to impose limits upon the time within which the power is properly exercisable is false: [9]. Unlike the case of A, where Hansard needed to be examined to confirm the absence of parliamentary intention to permit fundamental human rights to be overridden, there is no good reason to look behind the actual words of the 1946 Act in this case, and indeed a real risk of breaching parliamentary privilege if one does. Had Parliament intended to confine the order making power to urgent use, one would have expected it to be clearly provided for in the 1946 Act: [10] [11]. Instead, the 1946 Act is entirely silent on the question and indeed provides for a power to vary the existing order without placing any time limitations upon this power of variation: [12]. The history of how the Order in the present case came to be made so long after the UN resolution it was implementing confirms that it would be inappropriate to limit the exercise of the power conferred by the 1946 Act within a restricted timeframe by demonstrating that Security Council resolutions are not simply one off measures requiring immediate implementation by member states which then recede into history: [18].

The respondent was born in the United Kingdom. He had lived in Taiwan for about 19 years when he was involved in road traffic accident there which killed a man in 2010. He was convicted by the District Court of Taipei of driving under the influence of alcohol, negligent manslaughter and leaving the scene of an accident. He was sentenced to four years imprisonment. While his appeal was pending, he fled Taiwan and came to Scotland. In his absence his conviction was confirmed and the Taiwanese authorities applied for his extradition. The Ministry of Justice of Taiwan obtained a provisional arrest warrant for the respondent under the Extradition Act 2003 (the 2003 Act). The respondent was arrested in Scotland on 17 October 2013 and remained in custody for almost three years. An extradition hearing commenced in January 2014, following which the sheriff decided that the respondents extradition would be compatible with his Convention rights and refused the respondents devolution minutes. The Scottish Ministers made an extradition order on 1 August 2014. The respondent appealed against the sheriffs decision and against the extradition order of the Scottish Ministers. The Appeal Court of the High Court of Justiciary (the Appeal Court), ordered an evidential hearing to determine whether prison conditions in Taiwan were such that to extradite the respondent would breach his right under article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) not to be subjected to torture or to inhuman or degrading treatment or punishment. It reserved its opinion on the extradition order appeal until it had dealt with the article 3 challenge. The Appeal Court, by majority, found that even if the written assurances given by the Taiwanese authorities to the Lord Advocate in respect of the conditions in which the respondent would be held were fulfilled, a real risk of ill treatment would remain and thus the respondents extradition to Taiwan would be incompatible with article 3 ECHR. The Lord Advocate appeals the judgment of the Appeal Court, on the ground that it had not applied the correct legal test in assessing the risk of harm which the respondent might face in Taiwan from non state actors. The respondent raises a separate issue: whether the Appeal Court determined a devolution issue and, therefore, whether the Supreme Court has jurisdiction to hear the Lord Advocates appeal. The respondent also advanced challenges under articles 5 and 8 ECHR. The Supreme Court unanimously rejects the respondents challenge to the competency of the appeal and allows the Lord Advocates appeal on the devolution issue. The Court remits the case to the Appeal Court to deal with the respondents appeal against the extradition order of the Scottish Ministers and his devolution minute in that appeal. Lord Hodge gives the judgment, with which the other Justices agree. The competency of the appeal to the Supreme Court The challenge to the competency of the appeal is misconceived [14]. An appeal from the sheriffs decision under section 87(1) of the 2003 Act as to whether extradition would be compatible with the respondents Convention rights raises a question of the legal competence of the Scottish Government [15]. Schedule 6 to the Scotland Act 1998 paragraph 1(d) includes within the definition of a devolution issue a question whether a [] proposed exercise of a function of the Scottish Executive [] would be, incompatible with any of the Convention rights [18]. Therefore, the question whether the Scottish Governments acts in seeking to extradite the respondent are compatible with Convention rights is a devolution issue which was determined by the Appeal Court [19, 22]. Neither party to the appeal intimated the devolution issue to the Advocate General for Scotland thus depriving him of his right to take part in the Appeal Court proceedings. That omission, however, does not affect the competence of any appeal of the determination of the devolution issue to this court [21]. The correct legal test The Appeal Court, in assessing the compatibility of the extradition with article 3 ECHR, applied the wrong legal test [9]. The correct legal test when the threat comes from the acts of third parties is whether the state has failed to provide reasonable protection against harm inflicted by non state agents. The Appeal Court did not address that test and no clear distinction was drawn between the threat from other prisoners, and the conduct for which the state was responsible. The court must assess, first, whether the Taiwanese authorities are undertaking to provide the respondent with reasonable protection against violence by third parties while in prison, and, secondly, if they are, whether the conditions in which he is to have such protection would infringe article 3 [24]. There is no evidence that the Taiwanese authorities will not give the respondent reasonable protection against harm at the hands of other prisoners: the undertakings would allow him to elect to remain in his cell and exercise outdoors alone [39]. As to whether the confinement which such a regime would entail would risk a breach of article 3, the relative isolation which the respondent may elect for his own protection does not come close to a breach of article 3. Further, the other factors which influenced the majority of the Appeal Court, including the ratio of medical staff to prisoners and the monitoring of the assurances by UK consular staff, do not outweigh the other factors which point towards accepting the assurances [40 47]. The assurances offer the respondent reasonable protection against violence by non state actors and the circumstances of his confinement, should he be unable to mix with the wider prison population, do not entail a real risk of his being subject to treatment that infringes article 3 [48]. Article 5 and Article 8 The article 5 and article 8 challenges are without substance [49]. There is nothing arbitrary for the purposes of article 5 in the respondent serving two thirds of the remainder of his sentence in Taiwan before he would be eligible for parole. The respondents inability to obtain credit toward parole in Taiwan for the time spent in custody in Scotland is the result of his flight from justice in Taiwan. This involves no injustice [50]. The interference with the respondents article 8 right to private life which arises from his extradition and imprisonment in Taiwan is justified because it is necessary for both the prevention of crime and for the protection of the rights and freedoms of others [51].

A fraudster, B, established four ghost websites falsely pretending to offer cut price motor insurance. In order to carry out this plan he recruited associates to open bank accounts for channelling the proceeds. H was one such associate. One website was named AM Insurance, which operated from 1 September 2011 to January 2012. Shortly before the website went live, H opened two bank accounts, one with Lloyds Bank and one with Barclays Bank. Subsequently, B took control of these accounts and the related bank cards. In total, members of the public were duped into paying 417,709 into the Lloyds account and 176,434 into the Barclays account for non existent insurance cover. B pleaded guilty to a number of offences. H stood trial at the Central Criminal Court charged with entering into or becoming concerned in an arrangement which he knew or suspected would facilitate the retention, use or control of criminal property, namely the money received into the accounts, by or on behalf of B, contrary to section 328(1) of the Proceeds of Crime Act 2002 (POCA). The trial judge upheld the submission that H had no case to answer, finding that at the time H entered into the arrangement no criminal property existed. The Court of Appeal dismissed the prosecutions appeal; although it was not necessary for criminal property to exist when B and H came to the prohibited arrangement, the arrangement must relate to property which was criminal property when the arrangement begun to operate on it. In this case, the money was not criminal property when the arrangement began to operate on it, in other words at the moment the money was paid into the accounts. The prosecution appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. Lord Toulson (with whom all the other Justices agree) delivers the judgment of the Court. Whether s 328 POCA requires property to constitute criminal property prior to the arrangement operating Criminal property in sections 327 329 of POCA refers to property which already has the quality of being criminal property (as defined in section 340 of POCA) by reason of prior criminal conduct distinct from the conduct alleged to constitute the commission of the money laundering offence itself. This accords with the natural meaning and underlying purpose of these sections [32], the explanatory notes to POCA [33] and Council Directives 91/308/EEC and 2005/60/EC [34]. If section 328 did not require property to constitute criminal property before an arrangement came into operation, it would have serious potential consequences in relation to, for example, banks and other financial institutions who are already under onerous obligations to report known, suspected or reasonably suspected money laundering [37]. Whether criminal property has to exist when the defendant enters or becomes concerned with the arrangement The Court of Appeal was correct to hold that it does not matter whether criminal property existed when the arrangement was first made. What matters is that the property should be criminal when the arrangement operates on it [40]. Whether the sums received into the bank accounts constituted criminal property before being paid into the accounts The submission that the money paid into the accounts represented underlying choses in action and that, therefore, criminal property existed before money was received in the accounts would presumably have involved a contract between AM Insurance and the victims. There is a stark absence of material to substantiate the existence of such a contract [42]. Whether the actus reus of the s 328 POCA offence was committed Nonetheless, in the present case the character of the money although lawful at the moment of payment changed on being paid into the bank accounts. The money became criminal property in the hands of B by reason of the fraud perpetrated on the victims. As such, it is legitimate to regard H as entering into or becoming concerned in an arrangement to retain criminal property for the benefit of another. Consequently, the ruling that H had no case to answer was erroneous [47]. Although this same reasoning applies to sections 327 329 of POCA, the wide ambit of these sections can be managed by: (i) the prosecution only adding parasitic counts to substantive ones where there is a proper public purpose in doing so [48]; and, (ii) courts using their powers to discourage inappropriate use of the POCA provisions to prosecute conduct sufficiently covered by substantive offences [49].

This is a procedural appeal about the jurisdiction of the English courts in relation to a group tort claim. It concerns alleged toxic emissions from the Nchanga Copper Mine (the Mine) in Zambia. The claimants (the respondents to this appeal) are approximately 1,826 Zambian citizens who live in the Chingola District. They are very poor members of rural farming communities who are reliant on open bodies of water for drinking and irrigation for their crops. They allege that their health and farming activities have been damaged by the discharge of toxic matter from the Mine into those waterways from 2005 onwards. The owner of the Mine is the second defendant, Konkola Copper Mines plc (KCM). KCM is a Zambian company. The first defendant, Vedanta Resources PLC (Vedanta), is KCMs ultimate parent company. It is incorporated and domiciled in the United Kingdom. The Zambian government has a significant minority stake in KCM, but Vedantas published materials state that, in practice, it has the same ultimate control of KCM as it would if it were a wholly owned subsidiary of Vedanta. The claims against the defendants (the appellants to this appeal) are for the torts of negligence and breach of statutory duty. The claims against KCM, as the foreign defendant, are based on its role as the operator of the Mine. The claims against Vedanta rely on its allegedly high level of control and direction over KCMs mining operations and compliance with applicable health, safety and environmental standards. Against Vedanta, the claimants rely on its domicile in England, pursuant to article 4.1 of Regulation (EU) 1215/2012 (Recast Brussels Regulation). Against KCM, the claimants rely on the necessary or proper party gateway for service out of the jurisdiction in paragraph 3.1 of Practice Direction 6B in the Civil Procedure Rules (CPR). The claimants issued the present proceedings in England in July 2015. Vedanta was served within the jurisdiction, while KCM was served out of the jurisdiction, with permission obtained on a without notice application. Both Vedanta and KCM applied to challenge jurisdiction. Coulson J, in the High Court, dismissed that challenge in May 2016. The Court of Appeal dismissed the defendants appeals in October 2017. The defendants appealed to the Supreme Court and the claimants cross appealed. The main issues are: (1) whether it is an abuse of EU law to rely on article 4 of the Recast Brussels Regulation for jurisdiction over Vedanta as anchor defendant so as to make KCM a necessary or proper party; (2) whether the claimants pleaded case and supporting evidence disclose no real triable issue against Vedanta; (3) whether England is the proper place in which to bring the claims; and (4) even if Zambia would otherwise be the proper place, whether there was a real risk that the claimants would not obtain access to substantial justice in the Zambian jurisdiction. Both in the High Court and in the Court of Appeal, the claimants succeeded on all four issues. The Supreme Court dismisses the appeal. Lord Briggs gives the lead judgment, with which all members of the Court agree. The claimants succeed on issues (1), (2) and (4), though not on issue (3). (1) Abuse of EU law: Article 4.1 of the Recast Brussels Regulation confers a right on any claimant (regardless of their domicile) to sue an English domiciled defendant in England irrespective of connecting factors to other jurisdictions [16]. Issue (1) presupposes that there is a real triable issue against Vedanta [17, 26]. Further, the judges finding that Vedanta was sued in England for the genuine purpose of obtaining damages, even though attracting English jurisdiction over KCM was a key contributing factor, is not open to challenge [27]. Any implied exception to the effect of article 4.1 must be construed narrowly [29 30]. The EU case law on abuse of law under article 8.1 (related defendants) is equally restrictive [31 34]. In that context, the test is whether the sole purpose of joining a defendant is to sue them other than in their Member State of domicile [35]. The EU case law also suggests that the abuse of law doctrine is limited to situations where EU law is invoked collusively to subvert other EU provisions [36]. In light of the decision in Owusu v Jackson (C 281/02) [2005] QB 801 (CJEU), arguments based on forum conveniens cannot justify derogating from the primary rule of jurisdiction in article 4.1 [36 40]. The concern about the wide effect of article 4.1 in this case is best addressed under the domestic law on the necessary or proper party gateway [40]. The claimants thus succeed on issue (1) [41]. (2) Real triable issue as against Vedanta: The summary judgment test applies to issue (2) and it falls to be decided without cross examination or disclosure of the opposing partys documents, given the need for proportionality [42 43]. In this case, the question what level of managerial intervention by Vedanta in KCMs operation of the Mine is sufficient to attract liability in negligence is a question for Zambian law, but the question what that level actually was is a pure question of fact [44]. The assertion that the negligence claim against Vedanta raises a novel and controversial legal issue is misplaced, as the liability of parent companies in relation to the activities of their subsidiaries is not, in itself, a distinct category of negligence unsuited to summary determination [49 51, 54]. On the facts, there was sufficient material identified by the judge in support of the view that the claimants case was arguable and the judge made no error of law in assessing this issue, so his decision on the negligence claim must stand [55 62]. Further, as Zambian law requires substantially the same factual inquiry for the breach of statutory duty claim, the judge properly concluded that this claim was also arguable and, in any event, the point is academic [65]. (3) England as the proper place: The domestic law proper place test requires a summary examination of connecting factors to one or more potential jurisdictions [66]. The search is for a single jurisdiction in which the claims against all defendants may most suitably be tried [68]. Importantly, in cases where it was found that the claim(s) against the anchor defendant will be continued in England, the courts have treated the risk of irreconcilable judgments as a decisive factor in favour of England as the proper place for the claim against the non EU defendant as well [70]. The judge in this case applied that approach [71 72]. That was a legal error in circumstances where Vedanta had by the time of the hearing offered to submit to the Zambian jurisdiction, so that the whole case could be tried there [75, 79]. While an offer to submit does not preclude a claim in England against Vedanta alone, it has the effect that a risk of irreconcilable judgments would be the result of the claimants choice to exercise their article 4 right, rather than because Zambia is not an available forum for all the claims [75]. Leggatt Js judgment in OJSC VTB Bank v Parline Ltd [2013] EWHC 3538 (Comm) is overruled on this point since: (1) article 4 is not designed to avoid the risk of irreconcilable judgments; (2) article 8.1 on joinder is limited to the intra EU context and gives claimants a choice to consolidate proceedings in order to avoid that risk; and (3) there is no reason therefore why claimants should not have to make the same choice, merely because the foreign defendant is domiciled outside the EU [79 83]. It does not follow that the risk of irreconcilable judgments is not a relevant factor in this case, but it is no longer a trump card such that the judge made an error of principle in regarding it as decisive [84]. Looking at the relevant connecting factors in the round, Zambia would plainly have been the proper place for this litigation as a whole, provided substantial justice was available to the parties in Zambia [85 87]. The risk of irreconcilable judgments mainly concerns the claimants, and they have the choice to avoid it by suing all the defendants in Zambia, or to incur it by exercising their right to sue Vedanta in England. (4) Substantial justice in Zambia: Even if the court concludes that a foreign jurisdiction is the apparently the proper place, the court may still permit service of English proceedings on the foreign defendant if cogent evidence shows that there is a real risk that substantial justice would not be obtainable in that foreign jurisdiction [88]. In this case, the judge identified access to justice issues in Zambia [89]. It is not in doubt that Zambia has independent judges, courts and civil procedure which would ensure a just trial of large environmental group claims like this one [89]. The issues are twofold. First, the practicable impossibility of funding such group claims where the claimants are all in extreme poverty, because they could not obtain legal aid and because conditional fee agreements (CFAs) are unlawful in Zambia [89 90]. Secondly, the absence within Zambia of sufficiently substantial and suitably experienced legal teams to enable effective litigation of this size and complexity, in particular against a well resourced opponent like KCM [89]. The criticisms that the judge failed in his approach to the access to justice issue are not well founded [92 98]. Overall, the defendants fail on issue (4), which means their success on issue (3) is academic [101 102]. Conduct of litigation on jurisdiction: The court takes the opportunity to warn litigants of the need to conduct jurisdiction disputes in an economical and proportionate manner [6 14].

The appellant, Bocardo, is the freehold owner of the Oxsted Estate, Surrey. The apex of an oil field (the Palmers Wood oil field) lies at a depth of some 2,800 ft below ground within the Oxsted Estate. Pursuant to section 2 of the Petroleum (Production) Act 1934 Star held a licence issued by the Secretary of State for Energy on behalf of the Crown giving them the exclusive right to search and bore for and get the petroleum lying underground (the property in which section 1 of the 1934 Act had vested in the Crown) in a part of Surrey including the Palmers Wood oil field. To win the petroleum, Star needed to drill and install three wells. These three wells were drilled diagonally from a site outside Bocardos Oxsted Estate. They each entered the estate at various depths below ground level (between about 800 ft and 1,300 ft), ran through the estate for between about 250 m and 700 m and then exited the estate at a depth below ground level that was even greater than the depth at which they entered the estate. Their drilling and installation occasioned no harm whatsoever to the estate. There was no interference with Bocardos use or enjoyment of its land. The Mines (Working Facilities and Support) Act 1966 applied to enable Star to acquire such ancillary rights as they required in order to win the petroleum. Stars predecessors did not seek to negotiate any contractual licence or way leave from Bocardo to drill and install the wells. Nor did they apply for any statutory right to do this under the 1966 Act or the Pipelines Act 1962. Star in turn did not seek to do this when they acquired the licence from their predecessors. So far as material, section 8(2) of the 1966 Act provides that [t]he compensation or consideration in respect of any right. shall be assessed. on the basis of what would be fair and reasonable between a willing grantor and a willing grantee. And section 3(2)(b) of the 1934 Act gave the grantor a minimum uplift in compensation of 10% on account of the acquisition of the right being compulsory. The issues that this case raises fall into two parts: The trespass issue: was the drilling of the wells under Bocardos land an actionable trespass? The High Court held that it was and its decision was affirmed by the Court of Appeal. The damages issue: if there was an actionable trespass, what is the correct measure of damages? The measure that was adopted by the High Court was rejected by the Court of Appeal, which made a very substantial reduction in the award of damages. Bocardo appealed to the Supreme Court on the damages issue, and the respondents cross appealed on the trespass issue. The Supreme Court unanimously dismisses the respondents cross appeal on the trespass issue, with Lord Hope giving the judgment of the Court on this issue. By a majority (Lord Walker, Lord Brown and Lord Collins), the Supreme Court dismisses Bocardos appeal on the damages issue, with Lord Brown giving the judgment of the majority on this issue. The trespass issue The question whether the drilling of the wells under Bocardos land, and the continued presence of the well casing and tubing within them, was an actionable trespass raises the following issues: (1) Whether Bocardos title to the land extends down to the strata below the surface through which the three wells and their casing and tubing pass. (2) Whether possession or a right to possession is a pre condition for bringing a claim for trespass and, if so, whether Bocardo has or is entitled to possession of the subsurface strata through which these facilities pass. (3) Whether the respondents have a right under the 1934 Act to drill and use the three wells and their casing and tubing to extract petroleum from beneath Bocardos land which gives them a defence to a claim in trespass. As to (1), the Court holds that the owner of the surface is the owner of the strata beneath it, including the minerals that are to be found there, unless there has been an alienation of them by conveyance, at common law or by statute, to someone else. There must obviously be some stopping point, as one reaches the point at which physical features such as pressure and temperature render the concept of the strata belonging to anybody so absurd as to be not worth arguing about. But the wells that are at issue in this case are far from being so deep as to reach the point of absurdity. Indeed the fact that the strata can be worked upon at those depths points to the opposite conclusion [para 27]. As to (2), as the paper title carries with it title to the strata below the surface, Bocardo must be deemed to be in possession of the subsurface strata too. There is no one else who is claiming to be in possession of those strata through Bocardo as the paper owner [para 31]. As to (3), the right to search and bore for and get the petroleum was obtained by the respondents under licence from the Crown. There is no common law defence against a claim of trespass in relation to a landowner who was not a party to that arrangement [para 32]. The relevant statutory provisions (and the context in which they were enacted) also do not give the respondents a defence to Bocardos trespass claim [paras 33 35]. The damages issue The answer to the damages issue depends upon the answers to two fundamental questions: (1) Do the principles ordinarily governing the approach to valuation in the field of compulsory land purchase apply equally to the construction of the application of section 8(2) of the 1966 Act with regard to the compulsory acquisition of ancillary rights over (or, as here, under) land? (2) Even assuming that compulsory purchase principles apply to the assessment of compensation under section 8(2), can Bocardo nevertheless assert and benefit from the key value of the ancillary right which Star needed to acquire here? As to the first question, that the present context is one of compulsory acquisition of rights over land seems to Lord Brown indisputable. Lord Brown notes that this could not be more clearly demonstrated than by the express requirement under section 3(2)(b) of the 1934 Act for a 10% or greater uplift in compensation on account of the acquisition of the right being compulsory [para 71]. If the Court is to construe section 8(2) consistently with other legislative provisions governing compulsory acquisition, it falls to be approached on the basis that what is fair and reasonable depends not on what the grantee is gaining but rather on what the grantor is losing [para 74]. As to the second question, Lord Brown referred to the decision of the House of Lords in Waters v Welsh Development Agency [2004] 1 WLR 1304, in which it was reaffirmed that if any premium value of a strip of land was due to the very scheme of which the acquisition forms an integral part, that value fell to be disregarded (the no scheme rule). However, it was also recognised in Waters that a strip of land may have special value if it is key to the development of other land. In that event this feature of the land represents part of its value as much for purposes of compensation as on an actual sale in the open market [paras 80 81]. The scheme in the present case is the exploitation of the petroleum licence in the specified area. There cannot be any doubt that, whatever particular value existed in the ancillary right here required to facilitate that exploitation (any premium or key or ransom value), it existed exclusively because of the scheme. But for the scheme, there was no potential use of value whatever in the right being granted [para 82]. It is impossible to characterise the key value in the ancillary right being granted here as pre existent to the scheme [para 83]. It must be recognised that by the 1934 Act, Parliament in terms (a) vested the property in all petroleum in the Crown, (b) gave the Crown the exclusive right of searching and boring for and getting such petroleum (a right that could be licensed to others, as here to Star) and (c) enabled any licencee compulsorily to acquire any necessary ancillary right (as here to access the petroleum through Bocardos land). The correct analysis is that by these provisions Parliament was at one and the same time extinguishing whatever pre existing key value Bocardos land might be thought to have had in the open market and creating a new world in which only the Crown and its licencees had any interest in accessing the oilfield and in which they had been empowered to do so compulsorily and on terms subject to the no scheme rule approach to compensation [para 90].

This appeal concerns a fathers application for an order for the immediate return of his daughter from England and Wales to Israel. The issue raised is whether the Court of Appeal, having determined that such an order could not be granted under the Hague Convention on the Civil Aspects of International Child Abduction 1980 (the Convention), was nonetheless entitled to grant it under the inherent jurisdiction of the High Court to make orders in relation to children (the inherent jurisdiction). The childs parents are Israeli nationals who married in 2013. She is their only child and is now aged almost three. Her parents lived at first in Israel but moved to London in November 2018. There the marriage broke down. The father returned to Israel, but the mother refused to do so, and remained in London with the child. The father applied under the Convention, which is set out in Schedule 1 to the Child Abduction and Custody Act 1985 (1985 Act), for a summary order for the childs immediate return to Israel. The allegation underpinning his application was that, on 10 January 2019, when the marriage broke down, the mother had wrongfully retained the child in England. The High Court granted the fathers application. On appeal, the Court of Appeal ruled that it had not been open to the judge to make an order under the Convention and set his order aside. It held that there had been no grounds for concluding that the mothers retention of the child in England had been wrongful, and so the Convention had not been engaged. However, it then referred to passing observations made by the High Court judge to the effect that, if he had found that the child had been habitually resident in England, he would have reached the same decision to order the childs immediate return under the inherent jurisdiction as he had under the Convention. Relying on those observations, the Court of Appeal made a summary order for the childs return under the inherent jurisdiction. The mother appealed to the Supreme Court. On 14 August 2019, the Supreme Court unanimously allowed the appeal and set aside the Court of Appeals order. Owing to the urgency of the decision, a judgment giving reasons was not issued at that time. Lord Wilson now gives the unanimous judgment of the court setting out its reasons. The appeal raises two questions. First, was the inherent jurisdiction available to the Court of Appeal in principle? Second, if so, was the exercise of it flawed? The answer to both questions is yes [2 3]. Inherent Jurisdiction Available The mother argued that the inherent jurisdiction had not been available to the Court of Appeal on the grounds that a summary order (i.e. an order made without a full, conventional, investigation) for the childs return outside the Convention could only have been made as a specific issue order under the Children Act 1989 (the 1989 Act) [26]. A specific issue order is an order made to decide a question connected with any aspect of parental responsibility for a child: had it been appropriate on the facts to make such an order here, it would have been open to the Court of Appeal to do so [27 28]. Before the introduction by the 1989 Act of specific issue orders, summary orders for the return of a child abroad could be made under the inherent jurisdiction [29 30]. Such orders continued to exist alongside orders under the Convention after it was introduced into domestic law by the 1985 Act, since differences between the inherent jurisdiction and the Convention mean that an order for a childs return may, in some circumstances, be required under the former, but not the latter, legal framework [31]. But did the 1989 Act do away with the inherent jurisdiction to order a childs return [32]? The mother argued that para 1.1 of Practice Direction 12D, supplementing the Family Procedure Rules 2010, showed that the 1989 Act did have that effect: for it instructs that the inherent jurisdiction should only be invoked where the issues cannot be resolved under the 1989 Act [33 36]. However, practice directions have no legal authority to the extent that they state the law incorrectly [37 38]. There is no statutory basis for the instruction in para 1.1, and the case law indicates that an order can be made under the inherent jurisdiction even where a specific issue order would also have been available [39 43]. Therefore the instruction in para 1.1 goes too far. However, if an order is available by both routes and a party chooses to invoke the inherent jurisdiction, the judge will need to be persuaded early in the proceedings that that choice was reasonable [44]. Nor does the court accept the mothers argument that an application for a summary specific issue order requires a different inquiry from an analogous application under the inherent jurisdiction. The same approach is required under both frameworks, as both are based on the principle that the childs welfare is paramount [45 50]. Exercise of Inherent Jurisdiction Flawed The Court of Appeal did not inquire into whether the childs welfare required a summary order for her return, as it considered that the High Court had made that determination and had not erred in doing so [51]. Yet the judge had not made a determination under the inherent jurisdiction [52]. Nor could his determination under the Convention stand as one under the inherent jurisdiction: for the Convention, unlike the inherent jurisdiction, is not based on the paramountcy of the childs welfare [53]. The fact that the father had not invoked the inherent jurisdiction did not prevent the Court of Appeal from making an order under it. But it did place a duty on the Court of Appeal to ask whether the mother had had sufficient notice of its intention to use the inherent jurisdiction to allow her to seek to oppose it [54]. The Court of Appeal should also have considered eight further questions before making its order under the inherent jurisdiction, including whether the evidence before it was sufficiently up to date, and whether the High Court judge had made findings sufficient to justify the order [55 63]. Its failure to consider any of these questions is what led the Supreme Court to uphold the appeal [64].

The issue in the appeal is: what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, when such approval has never been given? In particular, is any evidence which makes use of the fingerprints taken on such a device inadmissible at the defendants trial? The appellants were charged with theft in Northern Ireland. The offence was alleged to have taken place on 6 October 2007. A stack of building materials had been found removed from the owners depot apparently ready for collection by thieves. The appellants were found nearby in a van but said they were waiting there innocently. They were arrested and their fingerprints were taken at the police station using an electronic fingerprint scanner called Livescan. This machine has been commonly used by police in the UK, including in Northern Ireland, for a number of years. A fingerprint matching Elliotts left thumb was found on packaging of the building materials. Article 61 of the Police and Criminal Evidence (Northern Ireland) Order sets out the powers of the police to take fingerprints without consent. Between 1 March 2007 and 12 January 2010 article 61(8B) provided that where a persons fingerprints are taken electronically, they may only be taken using such devices, as the Secretary of State has approved for the purpose of electronic fingerprinting. Due to an oversight no approval was ever given to any device (including Livescan) until it was belatedly provided on 29 March 2009. Article 61(8B) was later repealed by the Policing and Crime Act 2009. Therefore at the time the fingerprints were taken from the appellants there was no approval for the Livescan machine in breach of article 61 (8B). The appellants were convicted at trial and no issue over the fingerprints was taken. After the lack of approval for the Livescan device was noticed the appellants appealed to the County Court which, after a full re hearing, declared the fingerprint evidence inadmissible and acquitted the appellants. The Public Prosecution Service appealed to the Court of Appeal who allowed the appeal and reinstated the appellants convictions. The appellants primary argument before the Supreme Court and the courts below was that the lack of approval for the Livescan device meant that the fingerprints obtained with it were automatically inadmissible at the appellants trial. The Supreme Court dismisses the appeal. Lord Hughes gives the judgment of the court. The difficulty with the appellants argument is that the statute says nothing about the potential consequences of failure to use an approved device. This is despite the fact that there are numerous examples of other statutes where such consequences are expressly spelled out, such as in relation to obtaining specimens of breath for road traffic offences [8]. There is a well understood common law rule that evidence which has been obtained unlawfully does not automatically become inadmissible. It is clear that this rule extends equally to evidence created by an unlawful process as it does to existing material uncovered by unlawful process. The common law background to the legislation (article 61 (8B)) shows that inadmissibility of the fingerprints here under consideration cannot possibly simply follow from the existence of the requirement for device approval [9]. It is not correct to say that article 61 (8B) would have no purpose unless fingerprints obtained from unapproved devices were inadmissible at trial. A defendant who was asked to give a fingerprint on an unapproved device could lawfully refuse to do so. While, if such devices were found to be routinely in use by police, there would be no defence to an application for judicial review in which their unlawfulness could be declared and further use prohibited [10]. The appellants relied on the rule that the product of a breathalyser test was inadmissible unless the testing device was an approved one. However, the requirement for approval of fingerprint devices is not analogous to that in cases of breath tests or speed guns. The latter are methods of measuring something that cannot be re measured, they capture a snapshot of the suspects activity and are often the offence itself i.e. being found to be over the prescribed limit of alcohol at the time of driving. The fingerprints on the other hand could be reproduced at any time afterwards, and would be the same. If the Livescan readings were disputed they could readily be independently checked for accuracy and further fingerprints taken by a different method. The ease of which this could be done shows there was no need for Parliament to stipulate that the product of unapproved fingerprint readers should be inadmissible. Further, no challenge was ever made by the appellants to the accuracy of the fingerprints taken by the Livescan device [15]. The background material to the legislation shown to the Court further shows that the purpose of the requirement for device approval was not principally the protection of the individual against the risk of conviction on inaccurate evidence [16]. Relevant parts of the Protection for Freedoms Act 2012 and Criminal Justice (Northern Ireland) Act 2013 regarding fingerprints that have yet to come into force further support the construction of the legislation chosen by the Supreme Court in this case as, where required, express provision is made for evidence to be inadmissible [18].

The respondent (ATK) brought a public procurement claim against the appellant, a non departmental public body (the NDA), in connection with ATKs unsuccessful bid for a contract for services to decommission sites previously used for nuclear generation. The parties have agreed to compromise the claim, but have requested the Court to issue its judgment nonetheless. For this purpose, the NDA is to be taken, as the judge held, to have failed wrongly to award the contract to the consortium to which ATK belonged, in breach of its obligations under the Public Procurement Regulations 2006 (the 2006 Regulations), which give effect in the UK to the Public Procurement Directive No 2004/18/EC (the PP Directive). Directive No 89/665/EEC, as amended (the Remedies Directive), requires effective remedies for economic operators to be made in such cases, including compensation and the setting aside of awards. It was given domestic effect by amendment of the 2006 Regulations. Regulation 47G of the 2006 Regulations thus requires a contracting authority, on becoming aware of the issue of a claim form relating to its procurement decision, to refrain from entering into the contract with the successful tenderer, if not already entered into, until court order or disposal of the proceedings. Although the NDA observed an extended standstill period during which, pursuant to regs.32(1) and 32A(5), it could not enter into a contract with the successful tenderer, it refused ATKs request for a further extension and proceeded to enter into the contract. ATK subsequently issued the present proceedings, within the 30 day time limit provided by reg.47D. The following preliminary issues regarding the circumstances in which damages may be recoverable for breaches of the 2006 Regulations arose for consideration: (i) whether the Remedies Directive only requires a damages award to be made when any breach of the PP Directive is sufficiently serious; (ii) whether reg.47J(2)(c) of the 2006 Regulations confers a power to award damages in respect of any loss or damage suffered by an economic operator in the case of any breach (not merely a sufficiently serious breach) of the Regulations; and (iii) whether (and, if so, when) a damages award under reg.47J(2)(c) of the 2006 Regulations may be refused on the basis that an economic operator issued proceedings within the 30 day period provided by reg.47D, but not before the contracting authority entered into the contract. The Court of Appeal determined these issues to the following effect: (i) Yes; (ii) Yes; and (iii) no. The NDA appeals to the Supreme Court on issues (ii) and (iii). The Supreme Court allows the NDAs appeal on issue (ii) but dismisses it on issue (iii). Lord Mance gives the judgment, with which the rest of the Court agrees. Issue (i) The sufficiently serious condition in EU law ATKs case in the Supreme Court was that EU law requires a remedy in damages for any breach, whether serious or not, or that this issue should at least be referred to the Court of Justice. This case would, if accepted, have constituted a reason for reaching the same result as the Court of Appeal did by reference to domestic law. ATKs case is not, however, accepted on this issue. The decision of the Court of Justice in Spijker (Case C 568/98) provides clear authority that the liability of a contracting authority under the Remedies Directive for breach of the PP Directive is assimilated to that of the state or of a public body for which the state is responsible [19 25]. Such liability is only required to exist where the minimum Francovich conditions are met, the second of which is that the breach must be sufficiently serious [9]. Articles 1 to 3 of the Remedies Directive do not evince an intention to provide a remedy in damages for harm caused by infringements generally [14; 25]. Any further international obligation (if any) to which the EU may have committed itself under the Government Procurement Agreement (GPA 1994), including under article XX(7), provides only weak support for ATKs argument to the contrary and cannot in any event withstand the clear impact of the Courts judgment in Spijker [15; 25]. Issue (ii) The second Francovich condition at domestic law level The UK legislator has not, by the 2006 Regulations, gone further than EU law requires by conferring a power to award damages in respect of loss or damage suffered by an economic operator in the case of any breach, as opposed to only a sufficiently serious breach, of the Regulations. The Court of Appeal was correct to consider that the explanatory materials preceding the amendments to the 2006 Regulations indicate the legislators intention to do only what was necessary to implement the Remedies Directive without any gold plating [33 35]. However, the Court of Appeal erred in its assumption that any claim for damages under the 2006 Regulations was no more than a private law claim for breach of a domestically based statutory duty, and that this categorisation automatically freed the claim from any conditions which would otherwise apply under EU law [37 39]. The scheme of the Remedies Directive is a balanced one, with the Francovich conditions representing the Court of Justices conclusion as to the appropriate level of minimum protection by way of damages which an economic operator can expect. The UK legislator would not have gone further than required by EU law when implementing this scheme without considering this and making it clear [39]. This conclusion is also consistent with the use of the word may in regs.47I(2) and 47J(2)(c) which would otherwise have no real significance [32; 39]. Issue (iii) Failure to claim before the contract is made ATK cannot be said to have failed to mitigate (or avoid) its loss by not having taken steps to prevent the NDA from carrying its breach of duty into effect. The remedies scheme aims specifically at giving an economic operator the opportunity to stop the wrongful award of a procurement contract to a competitor. But an operator will not act unreasonably in not taking advantage of that opportunity. The scheme gives both parties choices as to how to proceed and how to protect themselves [53 55]. The NDA could have delayed entry into the contract under after the 30 day period which ATK had to commence proceedings. ATK may not have issued its claim form at a time when this would have put an automatic stop on the NDA entering into the contract because it appreciated that this would lead to the NDA seeking to lift the stop, and ATK in turn having to put up security for any loss the NDA would suffer through the continuation of the stop [51 52]. An economic operator cannot be said to have acted unreasonably in deciding not to pursue a course which exposes it to the risks associated with the possibility of its challenge to the contract award decision failing [54].

Highbury Poultry Farm Produce Ltd (HPFPL) operates a poultry slaughterhouse. The average throughput is 75,000 chickens per day, equating to 19,500,000 or so chickens per annum. The birds have their legs shackled to a moving line and are then submitted to a number of sequential processes, including stunning, bleeding and scalding. On 31 August, 12 September and 5 October 2016 a chicken went into the scalding tank (where its feathers would be removed) while still alive because its neck had not been properly cut by a certified operative. HPFPL was charged with two offences in respect of each of the three incidents: failure to comply with article 3 of Regulation (EC) No 1099/2009 (the EU Regulation), (i) which required that animals should be spared avoidable suffering during their killing, contrary to regulation 30(1)(g) of the Welfare of Animals at the Time of Killing (England) Regulations 2015 (the WATOK Regulations 2015); and failure to comply with article 15(1) of the EU Regulation by failing to sever the carotid arteries and verify that the animal presented no signs of life before scalding, contrary to regulation 30(1)(g) of the WATOK Regulations 2015. The trial judge dismissed HPFPLs argument that regulation 30(1)(g) of the WATOK Regulations required proof of mens rea (ie proof that the defendant had knowledge of the factual circumstances constituting the alleged offence) or culpability on the part of the defendant. HPFPL challenged this ruling by way of judicial review. The Divisional Court found that there was a presumption that the WATOK Regulations 2015 required proof of mens rea, but that this presumption was displaced, not least due to social concern regarding animal welfare. HPFPL appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Burrows gives the sole judgment. The Court holds that both offences are offences of strict liability. Negligence by the business operator does not have to be proved. Regulation 30(1)(g) of the WATOK Regulations provides that it is an offence to contravene the EU Regulation. Article 3(1) of the EU Regulation provides that Animals shall be spared any avoidable pain, (ii) distress or suffering during their killing and related operations. Article 15(1), Annex III, point 3.2 of the EU Regulation provides that in case of simple stunning the two carotid arteries or the vessels from which they arise shall be systematically severed Further dressing or scalding shall only be performed once the absence of signs of life of the animal has been verified [9]. HPFPL submitted that it was sufficient for negligence to be required under either the EU Regulation or the WATOK Regulation. As to the latter, in interpreting a domestic legal provision, there is a presumption that a crime requires mens rea or culpability [11]. However, the Court holds that the WATOK Regulations are no more than the mechanism through which the EU Regulation is given effect in domestic law. It is solely the interpretation of the EU Regulation that matters. In general, an EU regulation leaves Member States with the discretion to decide whether to create criminal offences in their domestic legislation. The WATOK Regulations 2015 create such offences [14]. However, while member states have a discretion as regards penalties, they have no discretion to lower the standards required by the EU regulation in question. If the EU regulation imposes strict liability, the domestic regulation must do the same [15]. Thus, if HPFPL fails to establish that negligence is required under the EU Regulation, then it cannot succeed on the basis that, in any event, regulation 30(1)(g) of the WATOK Regulations 2015 requires negligence and does not impose strict liability [16]. The EU Regulation has to be interpreted in accordance with EU law principles [19]. Insofar as they are different, domestic rules of statutory interpretation are displaced by those principles [23]. The teleological approach to legislative interpretation required by EU law means that there is a heavy stress on seeking to ensure that the interpretation of the words fulfils the purposes of the legislative provision and, more generally, the purposes of the EU [27]. The imposition of strict liability in the context of criminal law is not contrary to EU law [28]. The wording of article 15(1), requiring the severing of the carotid arteries, suggests the imposition of strict liability. There is no hint that business operators shall be liable only if the operational rules are intentionally or negligently infringed [33]. This interpretation is supported by the purpose of the provision. Strict liability imposes a clear and easily enforceable standard, uniform across the EU, and avoids the difficulty in pinpointing the individual upon whom the requisite state of mind must be attributed [34]. Article 15(1) therefore imposes strict liability [37]. The wording of article 3(1), requiring animals to be spared any avoidable suffering during their killing, also suggests strict liability [39]. Recital (2) to the EU Regulation, despite mentioning suffering being induced by negligence or intention, does not affect the wording of article 3(1). It merely clarifies that a breach of article 3(1) will usually entail fault. Negligence or intention are examples of the ways in which a breach of the EU Regulation induces suffering, but they do not form an exhaustive list [48]. The recitals to an EU regulation cannot be interpreted in such a way as to contradict the clear wording of that regulation [49]. Further, the earlier incarnation of the EU Regulation, Directive 93/119/EEC, did not include the words negligence or intention in the relevant recital. It is highly unlikely that the EU would have made its animal welfare requirements less strict under the EU Regulation than under the Directive it replaced [52]. Article 3(1) therefore also imposes strict liability [53].

This appeal concerns the decision of the respondent Secretaries of State for Foreign Affairs and Defence to refuse to hold a public inquiry into events which took place while the UK was the colonial power in the former Federation of Malaya (now Malaysia). The UK government sent troops to the Federation in 1948 in response to an insurgency. On 11 12 December 1948, a patrol of Scots Guards killed 23 unarmed civilians in the village of Batang Kali in Selangor, one of the states of the Federation. The Appellants are related to one or more of the victims. Following the incident, the UK government characterised the events as killings of bandits who had attempted to escape. There were subsequent calls for an investigation and, following statements by participants in the operation that the deceased had been massacred on orders and that those killed had not been fleeing, the Metropolitan Police began an investigation in 1969. This investigation was subsequently terminated in 1970. Allegations of unlawful killing resurfaced in 1992 with the broadcast of a BBC documentary. An investigation was started by the Royal Malaysian Police in July 1993 but subsequently closed in 1997. On 12 December 2008, a campaign group called The Action Committee Condemning the Batang Kali Massacre presented a petition seeking a public inquiry from the British government. The Respondents informed the Appellants by letter on 29 November 2010 and 4 November 2011 of their decision to refuse to hold an inquiry into the killings. The Appellants applied for judicial review of the refusal to hold a public inquiry, arguing that a public inquiry was required on three different grounds: (i) under Article 2 (right to life) of the European Convention on Human Rights (ECHR); (ii) under the common law by virtue of its incorporation of principles of customary international law; and (iii) under the common law by judicial review of the Respondents exercise of their discretion under section 1 of the Inquiries Act 2005. The Respondents cross appealed contending that the issues were not within the jurisdiction of the UK courts. The Supreme Court unanimously rejects the Respondents jurisdiction argument, but unanimously dismisses the appeal on grounds (i) and (ii) and dismisses the appeal on ground (iii) by a majority of 4 1 (Lady Hale dissenting). Lord Mance gives a judgment, with which the other Justices agree, holding that the Court has jurisdiction; on the three grounds of appeal, Lord Neuberger rejects them in a judgment, with which Lord Mance and Lord Hughes agree, Lord Kerr gives a concurring judgment, and Lady Hale gives a dissenting judgment. Preliminary issue: Jurisdiction The issue of jurisdiction has two strands: (i) whether the UK can be said to have been responsible for the killings; and (ii) whether the UK can be held responsible for not holding an inquiry now [152]. As to the first strand, the Respondents contended that, as the Scots Guards were operating within the constitutional framework of Selangor and the Federation, their acts were not attributable to the UK government. This argument is rejected. The Scots Guards were in the Federation in the service of His Majesty and in the interests of the United Kingdom. The powers of the British government in the Federation were not solely referable to the domestic arrangements in the Federation [187]. Those who were killed were within the British armys control at the time, whether they were seeking to escape or not [189]. Had the ECHR been in force in 1948, the killings would have occurred within the United Kingdoms jurisdiction for the purposes of article 1 of the ECHR [189 90]. As to the second strand, the Respondents contended that any liabilities or obligations which the UK may have had prior to 1957 passed that year to the newly independent Federation by virtue of article 167(1) of the Federal Constitution [154]. This argument is rejected. It is not at all clear that the actions of the UK government fell within article 167(1) as they are more properly characterised as being carried out in the interests of the UK rather than being rights, liabilities and obligations in respect of the government of the Federation as required by article 167(1) [192]. In any event, the UK governments duty to hold an inquiry, whether under domestic or international law, could not be released on the basis that the independent Federation had been a successor state to the UK as a matter of international law, even if this were the case [197]. Ground (i): Article 2 The ECHR came into force for the UK on 3 September 1953 and was extended to the Federation of Malaya on 23 October 1953. The UK recognised the right of an individual to petition the European Court of Human Rights (ECtHR) on 14 January 1966. The Respondents argued that the Appellants had no article 2 claim because the killings occurred before the ECHR came into force in the UK. Article 2 creates a separate and autonomous duty on a state to carry out an effective investigation into any death which occurs in suspicious circumstances [69]. While the general principle is that the ECHR is not retrospective, article 2 could create obligations for a state to investigate a death which occurred before the date of the entry into force of the ECHR (the critical date) where there exist: (i) relevant acts or omissions after the critical date; and (ii) a genuine connection between the death and the critical date [71 72]. The first criterion was satisfied in the present appeal because there had been no prior full or public investigation of the killings and no publicly available evidence from any member of the patrol to suggest that the killings had been unlawful prior to 1969 and 1970, and the evidence which subsequently came to light in 1969 and 1970 appears to have been compelling and suggests that the killings were unlawful [75]. As to the second criterion, in order for there to be a genuine connection, the lapse of time between the death triggering the investigative duty and the critical date must remain reasonably short, and should not exceed ten years [76]. As to the question of whether the critical date is the date of the coming into force of the ECHR or the date when the right of petition was recognised by the UK, the majority holds that it was the date when the right of petition was recognised that is the relevant critical date [81, 87]. On this basis, as the killings occurred more than ten years before the critical date, there is no genuine connection and the article 2 claim must fail [88 89]. Lord Kerr and Lady Hale come to the same conclusion but for different reasons. Lord Kerr considers that, as there was no clear guidance from the ECtHR as to which of the two dates was the relevant critical date, the Court could not say that the ECtHR would have concluded that the date of the coming into force of the ECHR is the critical date [239]. Lady Hale considers that the critical date is the date that the ECHR came into force [290 291, 299] but would dismiss the article 2 claim, because (i) the inquiry is sought for the purposes of establishing historical truth rather than legal liability [300]; and (ii) as a matter of principle, there is a difficulty in finding that there could be a genuine connection between killings which occurred before the coming into effect of the ECHR and obligations imposed by the ECHR [301]. Ground (ii) Duty to hold an inquiry under the common law by virtue of incorporation of principles of customary international law It is only within the last 25 years that international law has recognised a duty on states to carry out formal investigations into at least some deaths for which they were responsible and which may have been unlawful. The fact that the killings took place before this requirement became a part of customary international law means that the duty could not be relied upon [115], even where there are strong reasons for believing that a war crime had occurred [112, 268]. Further, even if a duty existed, such a requirement could not be implied into the common law [112]. Parliament has expressly provided for investigations into deaths through the coroners courts, the Inquiries Act 2005 and the incorporation of article 2 of the ECHR through the Human Rights Act 1998. In these circumstances, it would be inappropriate for the courts to take it upon themselves to impose a further duty, particularly one with such potentially wide and uncertain ramifications [117, 151]. Ground (iii) Judicial review of the Respondents failure to hold an inquiry under section 1 of the Inquiries Act 2005 Applying the ordinary principles of judicial review, the majority considers that the grounds for the decision contained in the Respondents letters to the Appellants informing them of the Respondents decision not to hold an inquiry were not unreasonable and thus not open to challenge [129]. Had the decision not to hold an inquiry been reviewed on the standard of proportionality, the conclusion would have been the same, namely that the decision was not disproportionate [139, 143, 283]. Lady Hale (dissenting) considers that the decision of the Respondents was one which no reasonable authority could reach [313], because the Respondents did not consider the public interest in properly inquiring into an event of this magnitude, the private interests of the relatives and survivors in knowing the truth and the importance of setting the record straight [312]. In this case, the value of establishing the truth was, in her view, overwhelming [313].

Mexfield Housing Co Operative Ltd (Mexfield) is a fully mutual housing co operative association founded by a bank as part of a mortgage rescue scheme with a view to buying mortgaged properties from borrowers in difficulty and letting the properties back to them. The borrowers were required by Mexfields rules to become members of the association: [1]. One of the properties acquired in that way was 17 Elton Avenue, Barnet, which Mexfield bought from Ms Ruza Berrisford and let back to her under an Occupancy Agreement dated 13 December 1993: [2]. The Occupancy Agreement provided that rent was to be payable weekly in advance at 89 per week (subject to annual increases). The only express provisions of the Occupancy Agreement dealing with its termination provided that it could be determined, under clause 5, by Ms Berrisford giving Mexfield one months notice in writing and, under clause 6, by Mexfield by the exercise of the right of re entry specified in this clause but ONLY in [certain specified] circumstances which did not include the giving of notice to quit: [5]. Because Mexfield was a mutual housing association the only statutory protection from which Ms Berrisford benefited was a right to (a) not be evicted without a court order and (b) at least four weeks notice to quit: [6]. Ms Berrisford remained in occupation and complied with her obligations under the Occupancy Agreement until (apparently through no fault of her own) she fell into arrears with her rent, which she soon paid off. Rather than invoke any of the provisions of clause 6 of the Agreement, Mexfield sought to end Ms Berrisfords occupancy by serving a notice to quit: [7]. Mexfield applied for summary judgment on the basis that the Occupancy Agreement could not be a valid express tenancy because it was of uncertain duration. However, it said, an implied periodic tenancy arose by virtue of the payment and acceptance of rent since 1993, and, pursuant to well established principles, Mexfield was therefore entitled to determine such a tenancy by notice to quit: [9]. At first instance, His Honour Judge Mitchell refused Mexfields application for summary judgment. On appeal, Peter Smith J, and on appeal from him, the Court of Appeal, accepted Mexfields argument and made an order for possession: [10]. The Supreme Court unanimously allows the appeal. The Occupancy Agreement takes effect as a lease for 90 years, determinable by Mexfield only on one months notice on Ms Berrisfords death or in accordance with the provisions of clause 6 of the Occupancy Agreement. Lord Neuberger gives the leading judgment with which Lord Hope, Lord Walker, Lady Hale, Lord Mance, Lord Clarke and Lord Dyson agree, each adding further comments of their own. The first point to consider was whether Mexfield was entitled on a proper construction of the Agreement, to terminate Ms Berrisfords occupancy on one months notice. For the purposes of interpreting the Occupancy Agreement, the surrounding circumstances were that Mexfield was a co operative housing association and the purpose of the agreement was to provide Ms Berrisford with a home; these factors together with the mortgage rescue background tends to support the notion that Ms Berrisfords right of occupation was not intended to be precarious: [15]. Despite the fact that the Agreement is expressed to be a tenancy from month to month, it seems clear from the language of the Agreement that the parties intended that the arrangement should only be determinable pursuant to clauses 5 or 6:[18] [22]. On a review of the authorities, such an agreement cannot take effect as a tenancy according to its terms as it is for an uncertain duration: [23] [34]. While there is no apparent justification for the rule that an agreement for a term of uncertain duration cannot give rise to a tenancy and the law is not in a satisfactory state, this rule has been established for many centuries and should not be jettisoned, at least in this case: [34] [37]. However, before the Law of Property Act 1925 came into force, the common law treated an agreement for an uncertain terms such as the Occupancy Agreement as a tenancy for the life of the tenant, determinable before the tenants death according to its terms: [38] [44]. The effect of section 149(6) of the 1925 Act is that the Occupancy Agreement, as a tenancy for life at common law, is to be treated as a term of 90 years determinable on the death of Ms Berrisford, subject to the rights of determination in clauses 5 and 6: [45] [53]. Accordingly Ms Berrisford retains her tenancy and Mexfield is not entitled to possession: [57]. Although this conclusion makes it unnecessary to consider Ms Berrisfords alternative case in contract, having heard full submissions, Lord Neuberger expresses the view that, if Ms Berrisford had failed in establishing that she had a subsisting tenancy, she would have defeated Mexfields claim for possession on the ground that she is entitled to enforce her contractual rights as between the parties, albeit that they are not capable of binding the parties successors as no interest in land or other proprietary interest would subsist: [58] [68]. Lady Hale does not think it necessary to express an opinion on this alternative case in contract: [96].

These appeals concern the obligations of insurance companies under various contracts of employers liability (EL) insurance. In particular, the appeals concern the scope of the insurers obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later. The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendants negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employees mesothelioma was caused by exposure to asbestos during a particular policy year. At first instance Burton J held that the policies should all be interpreted as having a causation wording. He therefore held that the liability trigger under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed. A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease contracted during the relevant insurance period); however they concluded that other policies (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma sustained or contracted at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employees body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an employee sustained or contracted mesothelioma during a particular policy period? The Supreme Court dismisses the insurers appeal by a 4 1 majority; Lord Phillips dissenting on the second issue. Lord Mance gives the main judgment. To resolve the meaning of the EL policies it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more generally [19]. Several features point the way to the correct construction. First, the wordings of the policies on their face require the course of employment to be contemporaneous with the sustaining of the injury [20]. Second, the wordings demonstrate a close link between the actual employment undertaken during each period and the premium agreed by the parties for the risks undertaken by the insurers in respect of that period. Third, on the insurers case there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to disease or injury in another later period [24]. Fourth, on the insurers case employers would be vulnerable to any decision by the insurers not to renew the policy. A decision not to renew might arise from the employers complying with their duty to disclose past negligence upon any renewal. Employers who discovered that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease would have such a duty. The insurers could then simply refuse any renewal or further cover [25]. Fifth, the way most of the policies deal with extra territorial issues throws doubt on any suggestion that the wordings are so carefully chosen that a court should stick literally to whatever might be perceived as their natural meaning [28]. Section 1 of the Employers Liability Compulsory Insurance Act 1969 also points the way to the correct interpretation. This states that every employer shall insure, and maintain insuranceagainst liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment. In order to give proper effect to the protective purpose of that legislation, the Act requires insurance on a causation basis [47]. There is no difficulty in treating the word contracted as looking to the causation of a disease, rather than its development or manifestation. The word contracted used in conjunction with disease looks to the initiating or causative factor of the disease [49]. While the word sustained may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later [50]. In relation to the second issue, the question is whether the EL policies cover employers liability for mesothelioma arising under the special rule in Fairchild/Barker [71]. Under that rule the law accepts a weak or broad causal link between the employers negligence and the employees mesothelioma. When construing the EL policies the concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule [74]. The purpose of the EL policies was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies [88]. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurers obligation to indemnify the employer [74]. Lord Phillips dissents on the second issue. The special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. This conclusion is not affected by section 3 of the Compensation Act 2009, which did not alter the jurisprudential basis of the Fairchild/Barker approach [132] [133].

The Supreme Court unanimously dismisses the Secretary of States Appeal holding that the Reception Directive can apply to second and subsequent applications for asylum. Lord Kerr delivered the judgment of the Court. The Supreme Court identified two principal issues in the appeal: (1) whether Article 11 of the Reception Directive applies to a person who has had an application for asylum in the United Kingdom finally determined against him when he makes a further application for asylum, and (2) whether the Court should apply for a reference to the European Court of Justice for a preliminary ruling on the proper interpretation of the Reception Directive, in particular whether it is intended to cover only the first application for asylum made by an individual to a Member State (paras [8][9]). In relation to the first issue, considering the context in which the Reception Directive was made, it is clear that it was part of a comprehensive charter dealing with the various aspects of asylum applications. The Procedures Directive, which was adopted ten months after the Reception Directive was required to be transposed into national law and sets out minimum standards on procedures in Member States for granting and withdrawing refugee status, is part of that charter. Article 2 of both Directives contain virtually identical definitions for the terms application for asylum and applicant or asylum seeker. There can be no doubt that subsequent applications for asylum come within the definitions contained in Article 2 of the Procedures Directive. For the Secretary of State to be correct therefore, the expression application for asylum must be given a different meaning in each of two Directives. Whilst as a matter of general principle, later legislation should not operate to change the established meaning of an earlier enactment, the later legislation may give an insight into the proper interpretation of the earlier instrument. In any event, in this case the matter is put beyond doubt by an examination of the legislative history of the two measures (paras [14][15], [22][28]). The proposal for the Reception Directive makes it clear that it had always been intended not only that the definitions of applicant for asylum in both Directives should be the same but also that an application should not be regarded as having been subject to a final decision until all possible remedies had been pursued and determined. This can only mean that subsequent applications would fall within the definitions of application for asylum and asylum seeker in the Reception Directive. Accordingly, an application for asylum in the Reception Directive must be interpreted to include a subsequent application made after an original application has been determined and asylum seeker should be construed accordingly to include a person who makes such a subsequent application (paras [29][30]). Having decided to dismiss the appeals for the reasons set out above, the Court then considered the Secretary of States arguments that numerous anomalies would arise if the Reception Directive was held to apply to subsequent asylum claims. The Court concludes that none of the claimed anomalies leads to the view that it was intended that the Reception Directive should not apply to subsequent asylum applications. On the contrary, curious consequences would follow if the Reception were held not to apply to such applications (paras [33][42]). The Secretary of State further argued that if the Reception Directive is held to apply to subsequent applications for asylum, the potential for abuse of the system would be greatly increased. The Secretary of States concern was that applicants would bring wholly unmeritorious claims with the aim of delaying their removal and gaining access to the benefits that the Reception Directive confers. Whilst there was some force in the Secretary of States arguments in this context, the Court considers that the problem of unmeritorious applications should be dealt with not by disapplying the Reception Directive to all repeat applications but by identifying and disposing promptly of those which have no merit and ensuring that genuine applicants are not deprived of the minimum conditions that the Reception Directive provides for (paras [43][49]). On the second issue, the Court concluded, particularly in light of the legislative history of the Reception Directive and the Procedures Directive, that a reference to the ECJ was not required (paras [50][51]).

This appeal related to wills made by a Mr and Mrs Rawlings. They each intended to make wills leaving their respective estates to the other, and, if the other had already died, to the appellant, Mr Marley. Owing to an oversight by their solicitor (the Solicitor), Mr Rawlings signed the will meant for Mrs Rawlings, and Mrs Rawlings signed the will meant for Mr Rawlings. The Supreme Court concluded that each will was nonetheless valid (see [2014] UKSC 2), contrary to the conclusions reached by the High Court and the Court of Appeal. As a result, the appellant inherited the estate of Mr Rawlings which was in the region of 70,000. If the will had been invalid, the respondents would have inherited the estate. The question which now arises is how the costs of these proceedings should be borne. The appellant contends that this was ordinary hostile litigation, and the respondents should pay the appellants costs in all three courts. The Solicitors insurers (the Insurers) have made submissions in support of the appellants case. The respondents contend that all parties costs should come out of the estate, or, in the alternative, should be paid by the Solicitor. The respondents solicitors and counsel acted on a traditional basis in the High Court and the Court of Appeal, but in the Supreme Court were instructed on conditional fee agreements (CFAs), sometimes called no win, no fee arrangements. In a judgment given by Lord Neuberger, the Supreme Court unanimously decides that the Insurers should pay the costs of both parties in the High Court and Court of Appeal. In relation to the costs in the Supreme Court, the Insurers should pay the appellants costs, the respondents solicitors disbursements, and, the respondents two counsels fees, conditional on the respondents counsel disclaiming any entitlement to their success fees under their CFA. The position disregarding the CFAs If there had been no negligence on the part of the Solicitor, it would have been difficult to decide what order to make as between Mr Marley and the respondents. Where there is an unsuccessful challenge to the validity of a will, when the challenge is a reasonable one and based on an error which occurred in the execution of the will, the court often orders all parties costs to come out of the estate. On the other hand, there is considerable force in Mr Marleys argument that, although these proceedings involved a reasonable dispute over the validity of a will, it was ultimately hostile litigation to which the usual rule of loser pays should apply [6].This would be especially true given the small size of the estate, because an order that costs were paid out of the estate would deprive Mr Marley of any benefit from the litigation [7]. However, this is not a case where it could possibly be right to ignore the position of the Solicitor [8]. The problem in this case arose as a result of the Solicitors negligence, and the Insurers, on behalf of the Solicitor, had required Mr Marley to bring proceedings to seek to have the will the upheld. [9]. The appellant has a clear claim in tort against the Solicitor, who would therefore be required, in the event that costs were ordered to be paid out of the estate, to reconstitute the estate [11]. As the Insurers have underwritten the liability of the Solicitor, the right order to make in relation to the costs of both parties in the High Court and the Court of Appeal, and of the appellants in the Supreme Court, would be that the Insurers pay all those costs [12 13]. The respondents costs in the Supreme Court The position in relation to the respondents costs in the Supreme Court is complicated by the fact that their solicitors and two counsel were all instructed on CFAs. The solicitors are, in the light of the terms of their CFA, only entitled to recover their disbursements, so that must be the limit of the Insurers liability so far as the respondents solicitors costs in the Supreme Court are concerned [18]. As to each counsels fees, their CFAs would appear to entitle them each to their full fee if the respondents costs are paid out of the estate. In the light of the fact that the respondents lost, the Court considers that it would be quite wrong if their counsel recovered any success fee from the Insurers: they should be limited to their base fees [24]. But if the order simply recorded that only counsels base fees were to be paid by the Insurers, their 100% success fees may be recoverable from the respondents or else from the solicitors (and, if so, from the Insurers as disbursements) [25]. Accordingly, the Insurers will only be liable to pay the respondents counsels fees in the Supreme Court if both counsel disclaim their entitlement to a success fee [26]. Counsel subsequently confirmed that they disclaimed any entitlement which they may have under the CFAs to a success fee [28].

These two joined appeals raise the question of whether a property used wholly for commercial purposes may qualify as a house for the purposes of legislation governing the right to leasehold enfranchisement (i.e. the right of a lessee in certain circumstances compulsorily to acquire the freehold of the building from his/her landlord) [1]. In the Hosebay case, the respondents owned the leases of three buildings in central London which had originally been built as separate houses as part of a late Victorian terrace [10]. The leases restricted the use of the houses to use for residential purposes, but on the date when the respondent served notices on the appellants under s.8 of the Leasehold Reform Act 1967 (the 1967 Act) seeking compulsorily to acquire the freehold of the buildings, they were being used wholly as a self catering hotel [10,13]. In the Lexgorge case, the respondent owned the lease of a five storey building in central London also originally built as a house [16]. The terms of the lease restricted the use of the upper two floors of the building to residential flats [18]. On the date when the respondent served a notice under s.8 of the 1967 Act, the building was used wholly for office purposes [17]. The building was listed as a building of special architectural or historic interest, and English Heritages records described it as a terraced house [18]. The issue in both appeals was whether the properties constituted houses within the meaning of s.2(1) of the 1967 Act. This raised two separate but overlapping questions: (i) Were the buildings designed or adapted for living in? (ii) Were they houses reasonably so called? [8] Both elements of the definition were disputed by the appellants in the Hosebay case, but only second element of the definition was disputed by the appellant in the Lexgorge case [8]. The judge at first instance in each case concluded that the buildings were houses for the purposes the 1967 Act, and the Court of Appeal reluctantly upheld those decisions [1,2]. The Supreme Court unanimously allows both appeals. It holds that neither property constituted a house for the purposes of the 1967 Act on the date when the relevant statutory notice was served. The judgment of the Court is given by Lord Carnwath. The decision of the Court of Appeal was not the result intended by Parliament when, pursuant to the Commonhold and Leasehold Reform Act 2002, it removed the requirements of residence from the 1967 Act [3 5]. As far as possible, an interpretation of the 1967 Act which has the effect of conferring rights on lessees going beyond those which Parliament intended to confer should be avoided [6]. The first element of the definition of house in s.2(1) of the 1967 Act (i.e. designed or adapted for living in) looks to the identity or function of the building based on its physical characteristics, the second element (i.e. a house reasonably so called) ties the definition to the primary meaning of house as a single residence, as opposed to, for example, a hostel or a block of flats [9]. Both parts of the definition need to be read in the context of a statute which is about houses as places to live in, not about houses as pieces of architecture or features in a street scene [9]. As to the first part of the definition of house in s.2(1) of the 1967 Act, the words designed and adapted do not constitute alternative qualifying requirements, despite the literal meaning of the provision [34]. Context and common sense argue strongly against a definition turning principally on historic design, if that has long been superseded by adaptation to some other use [34]. The words is adapted in s.2(1) refer to the present state of the building and do not imply any particular degree of structural change [34,35]. As to the second part of the definition, the external and internal physical appearance of a building should not be treated as determinative of whether it is a house reasonably so called , nor should the terms of the lease be treated as a major factor [41]. The buildings in the Hosebay case were not houses reasonably so called [43]. The fact that they might look like houses and might be referred to as houses for some purposes was not sufficient to displace the fact that their use was entirely commercial [43]. It was unnecessary to decide whether the buildings were designed or adapted for living in [44]. The building in the Lexgorge case was also not a house reasonably so called because it was used wholly for office purposes [45]. The fact that it was designed as a house and is still described as a house for many purposes (such as architectural histories) was beside the point [45].

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

These appeals concern the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, the deprivation must be authorised by a court or by the procedures known as the deprivation of liberty safeguards (DOLS) in the Mental Capacity Act 2005 (the Act) and subject to regular independent checks. P and Q (otherwise known as MIG and MEG) are sisters who became the subject of care proceedings in 2007 when they were respectively 16 and 15. Both have learning disabilities. MIG was placed with a foster mother to whom she was devoted and went to a further education unit daily. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG was moved from foster care to a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication. When the care proceedings were transferred to the Court of Protection in 2009, the judge held that these living arrangements were in the sisters best interests and did not amount to a deprivation of liberty. This finding was upheld by the Court of Appeal. P is an adult born with cerebral palsy and Downs syndrome who requires 24 hour care. Until he was 37 he lived with his mother but when her health deteriorated the local social services authority obtained orders from the Court of Protection that it was in Ps best interests to live in accommodation arranged by the authority. Since November 2009 he has lived in a staffed bungalow with other residents near his home and has one to one support to enable him to leave the house frequently for activities and visits. Intervention is sometimes required when he exhibits challenging behaviour. The judge held that these arrangements did deprive him of his liberty but that it was in Ps best interests for them to continue. The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities as P. The Supreme Court, unanimously in the appeal of P, and by a majority of 4 to 3 in the appeal of MIG and MEG, allows the appeals. MIG, MEG and P have all been deprived of their liberty. Lady Hale, with whom Lord Sumption agrees, gives the main judgment. Lord Neuberger agrees with Lady Hale in an additional judgment and Lord Kerr agrees with Lord Neuberger and Lady Hale, also in a separate judgment. Lord Carnwath and Lord Hodge give a joint judgment dissenting in the appeal of MIG and MEG. Lord Clarke agrees with them in an additional judgment. The DOLS were introduced into the Act following the case of HL v United Kingdom (2004) 40 EHRR 761, which found that the treatment of a severely mentally disabled adult after his informal admission to hospital amounted to a deprivation of his liberty by the hospital. Their purpose is to secure independent professional assessment of (a) whether the person concerned lacks the capacity to make his own decision about whether to be accommodated in the hospital or care home for care or treatment, and (b) whether it is in his best interests to be detained [8 9]. The European Court of Human Rights (ECtHR) has established general principles relating to the deprivation of liberty of people with mental disorders or disabilities, albeit that it has not yet had to decide a case involving, as here, a person without capacity, who appears content with their care placement, which is in a small group or domestic setting as close to home life as possible, and which has been initially authorised by a court [32]. The general principles make it clear that it is important not to confuse the question of the benevolent justification for the care arrangements with the concept of deprivation of liberty. Human rights have a universal character and physical liberty is the same for everyone, regardless of their disabilities [45]. What would be a deprivation of liberty for a non disabled person is also a deprivation for a disabled person [46]. The key feature is whether the person concerned is under continuous supervision and control and is not free to leave [49]. The persons compliance or lack of objection, the relative normality of the placement and the purpose behind it are all irrelevant to this objective question [50, 87]. It follows that in Ps case the judge applied the right test and his decision should be restored [51]. MIG and MEG were also both under continuous supervision and not free to leave the place where they lived. The deprivation of their liberty was the responsibility of the state and therefore different from similar constraints imposed by parents in the exercise of their ordinary parental responsibilities [54]. Accordingly the decisions of the courts below must set aside and a declaration made that their living arrangements constitute a deprivation of liberty within the meaning of s 64(5) of the Act. Periodic independent checks are needed for such vulnerable people to ensure that the arrangements remain in their best interests, although it is not necessary that the checks be as elaborate as those currently provided for in the Court of Protection or in the DOLS [57 58]. Lord Carnwath, Lord Hodge and Lord Clarke would have upheld the decision of the judge in both cases. They consider that the degree of intrusion is relevant to the concept of deprivation of liberty, and in the appellants cases the care regime is no more intrusive or confining than required for the protection and well being of the persons concerned [90]. The ECtHR has yet to decide a case of this kind and it is far from clear that it would adopt a universal test which disregarded any disabilities. It remains wedded to a case specific test [94]. They are concerned that nobody using ordinary language would describe persons living happily in a domestic setting, like MIG and MEG, as being deprived of their liberty [99].

BACKGROUND TO THE APPEAL This appeal required the Supreme Court to consider the defence of fair comment in defamation proceedings, in particular the extent to which the factual background giving rise to the comment had to be referred to with the comment itself and be accurately stated. The respondents are members of a musical group known as The Gillettes or Saturday Night at the Movies. The appellants provide entertainment booking services. The respondents appointed the appellants to promote their acts, entering into a contract which included a re engagement clause, under which any further bookings at the same venue in the following 12 months had to be made through the appellants. The appellants arranged a booking for the respondents at Bibis restaurant in Leeds. The respondents agreed to perform again at Bibis three weeks later without reference to the appellants. The first appellant emailed the first respondent to complain of the breach of the re engagement clause. The first respondent replied, contending that the contract was mearly (sic) a formality and holds no water in legal terms and that the other respondents were not bound by the re engagement clause as they had not signed the contract. The appellants thereafter posted a notice on their website announcing that they were no longer representing the respondents as they were not professional enough to feature in our portfolio and have not been able to abide by the terms of their contract and that following a breach of contract Craig Joseph who runs The Gillettes and Saturday Night at the Movies has advised 1311 Events that the terms and conditions of contracts hold no water in legal terms (27.03.07). For this reason it may follow that the artists obligations for your booking may also not be met. The respondents issued proceedings for libel, alleging that the posting meant that they were unprofessional and unlikely to honour any bookings made for them to perform. The appellants relied principally on the defences of justification and fair comment. Both were struck out in the High Court. The Court of Appeal reinstated the defence of justification but upheld the striking out of fair comment. The Supreme Court unanimously allows the appeal and holds that the defence of fair comment should be open to the appellants. The substantive judgment is given by Lord Phillips (President), with some additional comments from Lord Walker. The elements of the defence of fair comment had been set out by Lord Nicholls in the Hong Kong case of Tse Wai Chun Paul v Albert Cheng [2001] EMLR 777. His fourth proposition, namely that the comment must indicate in general terms the facts on which the comment is based, so that the reader was in a position to judge for himself how far the comment was well founded, had attracted criticism and was challenged by the appellants in this appeal [para 70]. The defence had originated in respect of comments about work products such as books and plays, which necessarily identified the product. It had been complicated by developments which extended the defence to cover the conduct of individuals, where this was of public interest. Sometimes the facts underlying the comment were notorious; at other times they might be only known to the person making the comment. The only defence to a bare comment which implied the existence of unidentified discreditable conduct was justification [para 89]. Fair comment could however be raised where the comment identified the subject matter general terms. Particulars could then be given in the defence which identified the features which led to the formation of the view expressed [para 96]. Lord Nicholls requirement, that readers should be in a position to evaluate the comments for themselves, could not be reconciled with the authorities [para 98]. This was so, even where the subject matter was not within the public domain. Today many people take advantage of the internet to make public comments and the defence would be robbed of much of its efficacy if readers had to be given detailed information to enable evaluation of the comment [para 99]. The fourth proposition should be re written as follows: Next, the comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based. The Supreme Court agreed that there was a case for reform of a number of aspects of the defence of fair comment which did not arise directly in this case [paras 112 116]. The whole area merited consideration by the Law Commission or an expert committee. The only more general reform being made by this judgment was the re naming of the defence from fair comment to honest comment [para 117]. Applying the law to the facts of this case, the posting by the appellants referred to the breach of contract relating to the Bibis restaurant, and to the respondents email, and these facts could be relied on. The email arguably evidenced a contemptuous approach to the respondents contractual obligations to the appellants. The email as quoted arguably evidenced a contemptuous attitude to contracts in general. It would be a matter for the jury to decide whether the inaccuracy in the quotation made a significant difference [para 124]. The defence should therefore be reinstated.

The appellant was sentenced to an extended sentence of ten years imprisonment, comprising a custodial term of seven years and an extension period of three years. He was released on licence after serving two thirds of the custodial term, but was recalled to custody after committing a further offence. He then remained in prison until the sentence had been served in full. In these proceedings, he complains that he was not provided with appropriate rehabilitation courses following his recall to prison, contrary to article 5 of the European Convention on Human Rights (the Convention), as given effect in domestic law by the Human Rights Act 1998. The principal issue in this appeal is whether the duty under article 5 to provide prisoners with a real opportunity for rehabilitation applies to prisoners serving extended sentences. The lower courts found that there was no violation of article 5. The Supreme Court unanimously dismisses the appeal, upholding the decision that there was no violation of article 5(1)(a). Lord Reed gives the lead judgment, with which the rest of the Court agrees. Previous decisions on Article 5(1)(a) In James v United Kingdom (2013) 56 EHRR 12 (James), the European Court of Human Rights (ECtHR) applied the general principle that article 5(1) requires the conditions of detention to be consistent with the purpose of the detention. Based on that principle the court concluded that after the punishment part (the tariff period) of an indeterminate sentence for public protection (IPP) has been served and the prisoner remains in detention for reasons of public protection, a real opportunity for rehabilitation should be provided [8 18]. The Supreme Court (UKSC) in R (Kaiyam) v Secretary of State for Justice [2014] UKSC 66 (Kaiyam) accepted there was an obligation to provide life and IPP prisoners with a real opportunity for rehabilitation, but held this was not imposed by article 5(1). Rather, the duty was an ancillary duty in the overall scheme of article 5 and existed throughout the prisoners detention. James was not part of a clear and constant line of decisions. The UKSC was concerned that the approach in James might give prisoners a right to immediate release under the Convention [22 25]. The ECtHR in Kaiyam v United Kingdom (2016) 62 EHRR SE 13 rejected the article 5(1) complaint in Kaiyam as inadmissible on the basis that article 5(1)(a) does not require a real opportunity for rehabilitation during the tariff period, since this represents the punishment part of the sentence. The ECtHR declined to adopt the UKSCs analysis, and adhered to the approach in James. On the facts of Kaiyam, a real opportunity for rehabilitation had been provided to the applicants [32 36]. Whether the UKSC should align its approach with the ECtHR The question of whether the obligation to provide rehabilitation opportunities arises under article 5(1) (as the ECtHR held in James and Kaiyam), or is immanent in article 5 as a whole (as the UKSC held in Kaiyam), affects the substance of the obligation, including: the period during which the obligation applies, the standard of the duty, and the weight to be placed on the Secretary of States assessment of what amounts to a reasonable opportunity [38 41]. In light of this, the UKSCs approach in Kaiyam has resulted in the imposition of a duty on the prison authorities which is significantly different from, and more demanding than, the duty imposed by the Convention. This position is a departure from the usual situation in which the jurisprudence of the UK and the ECtHR aligns. As to the UKSCs concern in Kaiyam, noted above, the ECtHRs approach does not entail an obligation under the Convention to secure the applicants immediate release, as other remedies exist which can remedy the lack of opportunity for rehabilitation [42 43]. Accordingly, the UKSC should now adopt the same approach to the interpretation of article 5(1)(a) as the ECtHR in James, and cease to treat the obligation to provide opportunities for rehabilitation as an ancillary obligation implicit in article 5 as a whole. It is noted, however, that a high threshold has to be surmounted in order to establish a violation of the obligation [44 45]. Application to extended sentences Whereas the previous cases on the duty to provide an opportunity for rehabilitation concerned life or IPP sentences, the present case concerns extended sentences, which may be imposed pursuant to section 210A of the Criminal Procedure (Scotland) Act 1995. An extended sentence comprises a custodial term and an extension period for which the offender is to be on licence beyond the licence period under the custodial term. A court may impose an extended sentence if it considers the licence period under the custodial term to be insufficient for the protection of the public. When the prisoner subject to the extended sentence is released on licence, the licence remains in force until the end of the extension period. The licence may be revoked if the offender commits a further offence [46 55]. The duty to provide an opportunity for rehabilitation established in James should apply equally to prisoners detained during the extension period of an extended sentence, having regard to the indefinite (albeit not unlimited) duration of detention during the extension period, its purpose of protecting the public from serious harm, and the possibility of change in response to opportunities for rehabilitation. The rationale in James that rehabilitation opportunities had to be available to IPP prisoners where they were detained solely because of the risk they pose to the public, applies to prisoners detained during the extension period of an extended sentence [59 63]. Application to the present case In light of the various opportunities for rehabilitation provided to the appellant in the present case, there can be no doubt that he was provided with a real opportunity for rehabilitation during his custodial sentence and his extended sentence. The appellant was not left in limbo without sentencing planning and without any attempt to provide him with an opportunity to rehabilitate himself. On the contrary, there were courses provided and completed, regular planning meetings, efforts made to find appropriate rehabilitative work, and transfers to less restrictive conditions. The problem which resulted in the appellants serving the whole of his sentence was not the failure of the prison authorities to provide appropriate courses, but his own misconduct. There is no question of his detention during the extension period, or at any other point during his sentence, having been arbitrary [65 85].

On 22 September 2015 Bernadette Hilton was convicted of three offences contrary to section 105A of the Social Security Administration (Northern Ireland) Act 1972. Following conviction, Ms Hilton was committed to the Crown Court and that court was asked to make a confiscation order under section 156 of the Proceeds of Crime Act 2002. The application was heard by His Honour Judge Miller QC on 20 October 2016. He made a confiscation order in respect of 10,263.50, which was the equivalent of Ms Hiltons half share of her matrimonial home. Ms Hilton appealed against the order. The Court of Appeal decided that Section 160A(2) of the Proceeds of Crime Act 2002 required that, at the time of making a confiscation order, the Crown Court must give to anyone who is thought to hold an interest in the property an opportunity to make representations on whether a confiscation order should be made and, if so, in what amount. The failure to give Ms Hiltons estranged partner and the building society the chance to make representations was fatal to the decision of the judge and the confiscation order was thus invalid. The Director of Public Prosecution appeals to this Court. The Court of Appeal certified the following points of law of general public importance: 1. Where property is held by the defendant and another person, in what circumstances is the court making a confiscation order required by section 160A of the Proceeds of Crime Act 2002, in determining the available amount, to give that other person reasonable opportunity to make representations to it at the time the order is made? 2. If section 160A does so require, does a failure to give that other such an opportunity render the confiscation order invalid? The Supreme Court unanimously allows the appeal. It holds that the questions certified do not arise on the present appeal because a determination under section 160A was not made. Lord Kerr gives the judgment. The Proceeds of Crime Act 2002 provides for two stages to confiscation proceedings: the first is the making of the confiscation order itself and the second the order securing its enforcement. The first stage is dealt with in sections 156 and 163B and envisages that the making of a confiscation order should be straightforward, indeed quasi automatic [8]. Section 160A of the Act provides that (1) Where it appears to a court making a confiscation order that (a) there is property held by the defendant that is likely to be realised or otherwise used to satisfy the order, and (b) a person other than the defendant holds, or may hold, an interest in the property, the court may, if it thinks it appropriate to do so, determine the extent (at the time the confiscation order is made) of the defendants interest in the property. (2) The court must not exercise the power conferred by subsection (1) unless it gives to anyone who the court thinks is or may be a person holding an interest in the property a reasonable opportunity to make representations to it. (3) A determination under this section is conclusive in relation to any question as to the extent of the defendants interest in the property that arises in connection with (a) the realisation of the property, or the transfer of an interest in the property, with a view to satisfying the confiscation order, or (b) any action or proceedings taken for the purposes of any such realisation or transfer. The critical question is whether, at the stage of making the order, the Crown Court judge made a determination of the extent of Ms Hiltons interest in the jointly owned property under section 160A. If made on foot of such a determination, the confiscation order becomes immutable unless there is an appeal [11 14]. A determination under section 160A therefore effectively extinguishes the opportunity for third parties to make later representations. On the other hand, the judge can at this stage form a view of the extent of the interest of the person in question, here Ms Hilton, without making a determination under section 160A. Parliament intended this to be the case, as is evident from the provisions relating to the second, enforcement stage of a confiscation order [14]. In particular, section 199(8) provides that a court must not order enforcement unless it gives persons holding interests in the property a reasonable opportunity to make representations. This section is important because it was retained in the legislation despite the introduction of section 160A. Furthermore, subsection 8B to section 199 proceeds on the premise that section 160A and section 199 continue, in relevant circumstances, to co exist [16 18]. Reading these sections together, it is clear that section 160A does not purport to occupy the field. The opportunity to make representations at the enforcement stage continues to apply either because a determination under section 160A has not been made or because the conditions in section 199(8B) are met. The fundamental point is that, at the enforcement stage, third party rights may continue to be considered [18]. Essentially, therefore, where the court makes a section 160A determination, third parties must be afforded the chance to make representations at the stage of making the confiscation order, as provided for by section 160A(2). But where the court does not make a section 160A determination and rather simply forms a view, at this first stage of the process, of the extent of the interest of the person in question, it will have to give third parties the chance to make representations at the enforcement stage. Where the court does not make a section 160A determination, therefore, it is not incumbent upon it to give third parties the chance to make representations at the first stage of the process (the making of the order) because they will have the chance to do so at the second stage (enforcement) before the confiscation order is enforced. The Court of Appeals judgment is premised on the proposition that on every occasion that third party interests arise, the court must proceed under section 160A. This is contrary to the conclusion reached that the introduction of section 160A has not modified the opportunity available to the Crown Court to make a confiscation order other than under section 160A. The consequence of the Court of Appeals approach would involve a collapse of the traditional two stages the making of an order and the enforcement of it into one hearing with all the panoply of investigation of the merits of the rights of third parties, such as a former partner and the building society in the present appeal. This would inevitably introduce a cumbersome procedure to the making of the confiscation order [23]. This was not intended. The making of a confiscation order would no longer be straightforward, much less quasi automatic (see para [8]) if section 160A had to be applied in all its rigour in every case where third party interests arose [24]. The enactment of the section was designed to streamline the system, not to complicate it. section 160A simply introduces a procedure allowing third parties to make representations at the confiscation stage, but only where the Crown Court makes a determination under section 160A [27]. No determination under section 160A was made here [28]. For this reason, the answer to the questions certified is that they do not arise on the present appeal. The appeal is therefore allowed [29].

Melanie Rabone (Melanie) had a history of depression. On 4 March 2005, she tried to commit suicide and was admitted to Stepping Hill Hospital (the hospital) and she was diagnosed by Dr Meagher, a consultant psychiatrist, as suffering from a severe episode of a recurrent depressive disorder. By 18 March 2005, she had made a sufficient recovery to be discharged and she went on holiday for a week with her family: [2]. On 31 March, she cut both of her wrists with broken glass. Dr Meagher advised that she should be readmitted to the hospital, but no beds were available so on 6 April she was seen as an outpatient by Dr Cook, a senior house officer. On 11 April, Melanie tied a lamp flex around her neck. Melanie agreed to an informal admission to the hospital. Dr Cook noted that, if she attempted or demanded to leave, she should be assessed for detention under the Mental Health Act 1983. She was prescribed a course of drugs and kept under 15 minute observation. A full mental state examination was carried out on admission by a ward nurse, who assessed Melanie as a moderate to high suicide risk. On various occasions after 13 April, Mr Rabone, Melanies father, expressed his concerns that she was not improving and that she should not be allowed home too soon: [3] [4]. On 19 April, Dr Meagher returned from leave. He was told that Melanie was requesting home leave. On his late afternoon ward round, he met Melanie and Mrs Rabone, Melanies mother. He agreed to allow Melanie to have home leave for two days and nights. Mrs Rabone expressed concern about Melanie coming home for the weekend, but Melanie was keen to do so. On 20 April 2005, Melanie, aged 24, hanged herself from a tree: [1]. On 11 August 2006, Mr Rabone issued proceedings claiming damages in negligence on behalf of Melanies estate and under Article 2 (the right to life) of the European Convention on Human Rights (the Convention) on behalf of himself and Mrs Rabone: [9]. The estates claim was settled in May 2008 for 7,500 plus costs: [11]. In relation to the Article 2 claims, six issues arise on this appeal: (i) whether the operational obligation under Article 2 can in principle be owed to a hospital patient who is mentally ill but not detained; (ii) if so, whether the Respondent Trust breached that duty; (iii) if so, whether Mr and Mrs Rabone were victims within the meaning of the Convention; (iv) if so, whether they lost their victim status by reason of the settlement; (v) whether their claims were time barred; and, if not (vi) whether the Court of Appeal erred in holding that they would have awarded 5,000 each to Mr and Mrs Rabone if their claims had been established: [14]. The Supreme Court unanimously allows the appeal: (i) the operational obligation under Article 2 of the Convention is owed to a voluntary mentally ill hospital patient such as Melanie; (ii) the obligation was breached in this case; (iii) Mr and Mrs Rabone were victims for the purposes of Art 34 of the Convention; (iv) they had not lost this status by virtue of the settlement of the estates claim; (v) claims were not time barred; and (vi) the Court of Appeal was not wrong to interfere with the judges assessment of damages in the sum of 2,500 to Mr and Mrs Rabone. Lord Dyson gives the leading judgment, with which Lord Walker, Lady Hale, Lord Brown and Lord Mance agree. Lady Hale, Lord Brown and Lord Mance each add further comments of their own. This appeal concerns the positive duty imposed by Article 2 of the Convention on states to take preventative operational measures to safeguard an individuals life in certain circumstances: [12]. The central question in relation to the first issue is whether the admitted negligence of the Respondent in its treatment of Melanie is to be assimilated to the line of case law pertaining to negligent hospital treatment (in which case there is no duty under Article 2), or whether the fact that Melanie was a psychiatric patient (though not detained) means that this case should be assimilated to the class of cases where an operational duty arises: [20]. No European Court of Human Rights (ECtHR) decision was cited to the Court which clearly articulates the criteria by which such a duty exists in particular circumstances, but there are certain indicia which point the way: [22]. While there are differences between detained and voluntary psychiatric patients, these should not be exaggerated: [27]. Melanie was admitted to hospital because she was a real suicide risk. By reason of her mental state, she was extremely vulnerable. The Trust assumed responsibility for her; she was under its control. The difference between Melanies position and that of a hypothetical detained psychiatric patient would have been one of form not substance: [34]. The Trust owed Melanie the operational duty to take reasonable steps to protect her from the real and immediate risk of suicide. The risk of Melanies suicide was real; it was real enough for the expert psychiatrists to give evidence that all ordinarily competent and responsible psychiatrists would have regarded Melanie as being in need of protection against the risk of suicide: [38]. The risk existed when Melanie left hospital and continued during the two day period of home leave. It was therefore also an immediate risk: [40] [41]. As the decision to allow home leave was one that no reasonable psychiatric practitioner would have made, the Trust failed to do all that could reasonably have been expected to prevent the real and immediate risk of Melanies suicide and it breached its operational duty: [43]. The ECtHR has repeatedly stated that family members of the deceased can bring claims in their own right under Article 2 of the Convention: [44] [46]. A person ceases to be a victim where the domestic authority has provided adequate redress and has acknowledged, either expressly or in substance, the breach of the Convention: [49]. By settling the estates claim, Mr Rabone did not renounce their article 2 claim for damages for non pecuniary loss for their bereavement. No such claim was available in English law as damages for bereavement are only available for the loss of a child where the child is under 18: [58]. Nor was the 7,500 received by the estate adequate address: [59] [63]. Mr and Mrs Rabone are therefore victims and have not lost that status. A claim against a public authority for breach of a Convention right must be brought within a year of the act complained of or such longer period as the court considers equitable. The extension of time sought was less than four months, there is no suggestion that the evidence has become less cogent as a result of the delay, the Trust has suffered no prejudice by the delay, Mr and Mrs Rabone acted reasonably in not issuing proceedings and they have a good claim for breach of Article 2. Time should therefore be extended: [77] [79]. This was a bad case of breach of the Article 2 operational duty which merited an award well above the lower end of the range of awards. The Trusts challenge to the Court of Appeals assessment of 5,000 each therefore fails: [88].

The appellant, Miss Hounga, appears to have a current age of about 21. She is of Nigerian nationality and now resides in England. In January 2007, when she was aged about 14, she came from Nigeria to the UK under arrangements made by the family of the respondent, Mrs Allen, who is of joint Nigerian and British nationality and who resides in England with her children. Pursuant to these arrangements, in which Miss Hounga knowingly participated, her entry was achieved by her presentation to UK immigration authorities of a false identity and their grant to her of a visitors visa for six months. For the following 18 months Miss Hounga lived in the home of Mrs Allen and of her husband who, although formally a respondent to it, plays no part in this appeal. Although Miss Hounga had no right to work in the UK, and after July 2007 no right to remain in the UK, Mrs Allen employed her, unpaid, to look after her children in the home. There Mrs Allen inflicted serious physical abuse on Miss Hounga and told her that, if she left the home, she would be imprisoned because her presence in the UK was illegal. In July 2008 Mrs Allen forcibly evicted Miss Hounga from the home and thereby dismissed her from the employment. This appeal proceeds on the basis that, by dismissing her, Mrs Allen discriminated against Miss Hounga in that on racial grounds, namely on ground of nationality, she treated Miss Hounga less favourably than she would have treated others. In due course Miss Hounga issued a variety of claims and complaints against Mrs Allen in the Employment Tribunal. The one claim which the tribunal upheld was her complaint of unlawful discrimination but only the part of the complaint which related to her dismissal. In this regard it ordered Mrs Allen to pay compensation to Miss Hounga for the resultant injury to her feelings in the sum of 6,187. The Employment Appeal Tribunal dismissed Mrs Allens cross appeal against the order. But the Court of Appeal upheld a further cross appeal brought by Mrs Allen against it and set it aside. The court held that the illegality of the contract of employment formed a material part of Miss Houngas complaint and that to uphold it would be to condone the illegality. It is against the Court of Appeals order that Miss Hounga brings her appeal. The Supreme Court unanimously allows the appeal in relation to Miss Houngas claim for the statutory tort of discrimination, committed in the course of dismissal. Miss Houngas claim in relation to alleged pre dismissal harassment on grounds of race or ethnic origin should be remitted to the tribunal to determine whether the ground identified by the Court of Appeal for possible disapplication of the grievance procedure existed and, if so, whether the complaint was established. Lord Wilson (with whom Lady Hale and Lord Kerr agree) gives the lead judgment. Lord Hughes (with whom Lord Carnwath agrees) gives a concurring judgment. The main legal issue is whether the Court of Appeal was correct to hold that the illegality defence defeated the complaint of discrimination [23]. Lord Wilson holds that the application of the defence of illegality to claims in tort is problematic [25]. The Court of Appeal has held in a previous case that the defence of illegality to a complaint of discrimination should succeed only if there is an inextricable link between the complaint and the claimants illegal conduct. If the test applicable to Mrs Allens defence of illegality is that of the inextricable link, Lord Wilson would hold the link to be absent. Entry into the illegal contract on 28 January 2007 and its continued operation until 17 July 2008 provided no more than the context in which Mrs Allen then perpetrated the acts of physical, verbal and emotional abuse by which, among other things, she dismissed Miss Hounga from her employment. But Lord Wilson proceeds to ask whether the inextricable link test is applicable to Mrs Allens defence. [40] The defence of illegality rests upon the foundation of public policy. It is necessary, therefore, first to ask what aspect of public policy founds the defence and, second to ask whether there is another aspect of public policy to which application of the defence would run counter. [42] On the first question, concern to preserve the integrity of the legal system is a helpful rationale of the aspect of policy which founds the defence but the considerations of public policy which militate in favour of applying the defence so as to defeat Miss Houngas complaint scarcely exist. [45] On the second question, the facts disclose that Mrs Allen and her family were guilty or close to being guilty of trafficking Miss Hounga from Nigeria to England. The UK authorities are striving in various ways to combat trafficking and to protect its victims. The decision of the Court of Appeal to uphold Mrs Allens defence of illegality to Miss Houngas complaint runs strikingly counter to this prominent strain of public policy. The public policy in support of the application of that defence, to the extent that it exists at all, should give way to the public policy to which its application is an affront. [52] Lord Hughes concludes that Miss Hounga succeeds in her appeal on the ground that there is insufficiently close connection between her immigration offences and her claims for the statutory tort of discrimination. But it is not possible to read across from the law of human trafficking to provide a separate or additional reason for this outcome. Even if one assumes in Miss Houngas favour that her treatment by Mrs Allen in England amounted to slavery or forced labour, and even if one assumes, without any findings of fact, that Mrs Allen brought her to England with the purpose of so treating her, she does not appear to have been compelled to commit the immigration offences which she certainly did commit. [67]

Part 5A of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) is headed Article 8 ECHR: Public Interest Considerations. Section 117A applies where a court or tribunal needs to determine whether an immigration decision breaches a persons right to respect for private and family life. In considering the public interest question whether an interference is justified under Article 8(2) the court must have regard to the considerations listed in section 117B and, in cases concerning the deportation of foreign criminals, to the considerations in section 117C. A foreign criminal is a person who is not a British citizen and who is convicted of an offence in the UK that attracted a sentence of at least 12 months, caused serious harm, or is a persistent offender. Section 117B includes a provision that where a person is not liable to deportation as a foreign criminal, the public interest does not require the persons removal if that person has a genuine and subsisting relationship with a qualifying child and it would not be reasonable to expect the child to leave the UK. A qualifying child is a person under 18 and is a British citizen or has lived in the UK for a continuous period of seven years or more. Section 117C provides that deportation of foreign criminals is in the public interest but, if sentenced to less than four years imprisonment, there is an exception where there is a genuine and subsisting parental relationship with a qualifying child, and the effect of deporting the person would be unduly harsh on the child. Three appellants (KO, IT and NS) argue that when determining whether it is reasonable to expect a child to leave the UK, or whether the effect of deportation of a person would be unduly harsh on their child, the tribunal is only concerned with the position of the child and not with the conduct of the parents. The respondent argued that both provisions require a balancing exercise, weighing the impact on the child against the wider public interest. The fourth appeal (Pereira, regarding AP) concerns immigration rule 276ADE(1)(iv), which provides that leave to remain on the grounds of private life should be granted to an applicant who is under 18, has lived continuously in the UK for seven years, and whom it would not be reasonable to expect to leave the UK. APs application was refused on the basis that it was reasonable for him to accompany his parents to their country of origin. The Supreme Court unanimously dismisses the appeals. Lord Carnwath gives the sole judgment, with which the other Justices agree. General approach The purpose of Part 5A of the 2002 Act is to produce a straightforward set of rules and to reduce the need for discretionary judgement when taking account of public interest or other factors not directly reflected in the wording of the statute. It also presumed that those rules are intended to be consistent with the general principles relating to the best interests of children [15]. The specific provisions Rule 276ADE(1)(iv) contains no requirement to consider the criminality or misconduct of a parent as a balancing factor and such a requirement cannot be read in by implication [16]. Section 117B of the 2002 Act does not include criminality as a consideration [17]. However, it is inevitably relevant to consider where the parents, apart from the relevant provision, are expected to be, as it will normally be reasonable for the child to be with them. To that extent the record of the parents may become indirectly material if it leads to them having to leave the UK. It is only if it would not be reasonable for the child to leave with them that the provision may give the parents a right to remain [18]. In section 117C of the 2002 Act, unduly harsh introduces a higher hurdle than that of reasonableness under section 117B. Unduly goes beyond a level of harshness that may be acceptable or justifiable in the relevant context. It does not require a balancing of relative levels of severity of the parents offence, other than is inherent in the distinction drawn by the section itself regarding length of sentence, and it does not require very compelling reasons [23]. The cases KO and IT concerned section 117C of the 2002 Act. In KO the Upper Tribunal judge was wrong to decide that he should take account of the criminality of the parent in applying the unduly harsh test [26, 32]. However, this did not affect the correctness of his conclusion, as his overall approach seemed no different to that which the Supreme Court accepts as correct [33 36]. In IT the Court of Appeal was wrong to introduce a compelling reasons test and to proceed on the basis that the assessment of harshness required the nature of offending to be considered [42]. However, the First tier Tribunal had erred in proceeding on the basis, unsupported by the evidence, that ITs child, as a British citizen, could not be expected to relocate outside the UK [44]. The Supreme Court confirms the order of the Court of Appeal for remittal to the Upper Tribunal [45]. NS concerned section 117B of the 2002 Act. The parents had falsely claimed to have completed a postgraduate course in order to obtain leave to remain [46]. The Upper Tribunal judges conclusion, read in its full context, did not involve any error of approach. He was entitled to regard the parents conduct as relevant to the extent that it meant they had to leave the country, and to consider the position of the child on that basis [51]. Pereira concerned rule 276ADE(1)(iv). The Court of Appeal ordered that the case should be remitted to the Upper Tribunal for a fresh determination and it did not limit the issues before the tribunal. As AP is now aged 19 he is in principle qualified for leave to remain under rule 276ADE(1)(v) and so the appeal may be disposed of by agreement. If not, it will fall to be considered in accordance with the law stated in this judgment. No further order is required [54 56].

In March 2011 the Metropolitan Police arrested two military officers on suspicion of having committed offences under the Official Secrets Act 1989. The alleged offences concerned suspected leaks of top secret information from meetings of the COBRA Cabinet security committee to the security editor of British Sky Broadcasting Limited (BSkyB). The investigation against these officers has since been dropped, but the case has continued due to the importance of the legal issue raised. Having arrested these officers, the police informed BSkyB that a criminal investigation had begun and sought disclosure of various documents, including copies of all emails between the security editor and the officers since October 2010. On 14 April 2011 the police served an application for a production order under the Police and Criminal Evidence Act 1984 on BSkyB, supported by a statement signed by a Detective Sergeant Holt (DS Holt). The Police and Criminal Evidence Act 1984 (the 1984 Act) consolidated various police powers to obtain evidence for a criminal investigation. Generally, a magistrate may issue a search warrant on an application by a police constable made ex parte without any other parties being aware or present. However, this process does not apply to material which is acquired or created for the purposes of journalism, and is in the possession of a person who acquired or created it for the purposes of journalism. Such material must be sought by a special procedure under Schedule 1 to the 1984 Act, which requires an application for a production order to be made to a Crown Court judge and to be heard inter partes with any other affected parties present in court. The polices application for the production order was heard on 26 April 2011 and 3 May 2011 by a Crown Court judge in the Old Bailey, with both the police and BSkyB present. Both sides put in skeleton arguments and witness statements. The police made an application to adduce further evidence from DS Holt in the absence of BSkyBs representatives. BSkyB objected to that course of action and raised other objections to the application. The judge allowed DS Holt to give evidence in the absence of BSkyBs representatives, and made the production order. BSkyB sought judicial review of the judges decision. The Divisional Court quashed the production order. It held, applying the Supreme Courts judgment in Al Rawi v The Security Service [2011] UKSC 34, that it was procedurally unfair for BSkyB to have had an order made against it without full access to the evidence on which the polices case was based and the opportunity to comment on or challenge that evidence. The police appealed. The Supreme Court unanimously dismisses the appeal. The judgment of the Court is given by Lord Toulson, with whom the other Justices agree. The principle in Al Rawi applies to civil and criminal trials, and requires that any evidence used in such trials be disclosed to all parties. However, this case does not involve a trial but a statutory procedure designed to gather evidence for a possible case from a third party. As a generality, the Al Rawi principle should not be applied to such applications, since they do not involve the determination of substantive legal rights. An application under Schedule 1 to the 1984 Act to obtain journalistic material is however special, and is likely to involve the journalists legal rights. Parliament had recognised this when it legislated that such an application should be heard inter partes. The exclusion of one party from some or all of the evidence is inconsistent with the nature of an inter partes hearing. The principle in Al Rawi is that, in a civil or criminal trial, it is not permissible for one party to be prevented from seeing evidence relevant to the other partys case. There are however a number of classes of case where departure from this rule can be justified for special reasons in the interests of justice. These include child welfare proceedings and proceedings involving the protection of confidential information [23]. This case does not involve a trial, but a statutory procedure designed to gather evidence for a criminal case. In general, the Al Rawi principle should not be applied to an application made by a party to litigation or prospective litigation to use the procedural powers of the court to obtain evidence for the purposes of the litigation from someone who is not a party or intended party to the litigation. Such an application does not involve the determination of substantive legal rights as between the applicant and the respondent [24 28]. However, the statutory procedure in this case is a special one. An application to obtain journalistic material is a highly sensitive and potentially difficult area, which is very likely to involve the journalists legal rights. This has been recognised by Parliament, which has established the special procedure under Schedule 1 of the 1984 Act [26, 29]. Parliament has required, by that special procedure, that an application for a production order shall be made inter partes. As a result, when that application is made, there is a discrete legal issue between the applicant (here the police) and the respondent (here BSkyB). Equal treatment of the parties to that issue requires that each should know what material the other is asking the court to take into account in making its decision, and should have a fair opportunity to respond to it. The Crown Court judge in this case should not have taken into account evidence from which BSkyB was excluded [30 31]. For the avoidance of doubt, this does not prevent a court hearing a public interest immunity (PII) application in relation to a production order ex parte. In a PII application the issue is whether the evidence is to be admitted at all. If the evidence is to be admitted in support of a production order, however, the inter partes nature of the hearing is inconsistent with that evidence being given ex parte [32].

The two appeals before the Court relate to judicial review proceedings concerning the treatment of Mr Michael Stone. In 1988, Mr Stone attacked a group of mourners at Milltown Cemetery, Belfast, killing several. One of them was the brother of the appellant, Mrs McGuinness. In 1989, Mr Stone was convicted and sentenced to life imprisonment and certain concurrent terms of imprisonment, with a recommended tariff of 30 years imprisonment. The Belfast Agreement of 1998 between the United Kingdom and Irish governments introduced an early release scheme for certain prisoners convicted of crimes related to sectarian violence in the Troubles. The Northern Ireland (Sentences) Act 1998 (the 1998 Act) gave effect to that part of the Belfast Agreement. Mr Stone made an application under the 1998 Act to the Sentence Review Commissioners (the SRC) seeking early release. In 1999, the SRC made a determination that Mr Stone was eligible for early release. Mr Stone was released on licence on 24 July 2000. In 2006, Mr Stone committed further offences at Parliament Buildings, Stormont. The Secretary of State for Northern Ireland suspended his licence. In 2008, Mr Stone was convicted and received two determinate sentences of 16 years imprisonment and other determinate sentences of between one and ten years imprisonment, all to run concurrently. In 2011, the SRC revoked Mr Stones licence. In 2017, the Northern Ireland Prison Service referred Mr Stones case to the Parole Commissioners, notifying them that his tariff expiry date would be 21 March 2018, on the basis that the period during which Mr Stone had been released on licence should count towards his 30 year tariff period. In the event, the Parole Commissioners made a formal determination in 2018 that Mr Stone should not be released upon expiry of his tariff. Mrs McGuinness issued these judicial review proceedings to challenge the Prison Services notification of a tariff expiry date of 21 March 2018, on the ground that the Prison Service erred in law in including the period of release on licence in Mr Stones tariff. The Divisional Court of the High Court heard the case, deciding to treat it as a criminal cause or matter on a pragmatic basis, and certified a question of law of general public importance suitable for appeal to the Supreme Court under section 41 of the Judicature (Northern Ireland) Act 1978 (the 1978 Act). The Attorney General for Northern Ireland intervened in the appeal to dispute the assumption that Mrs McGuinnesss application for judicial review constituted a criminal cause or matter and to challenge the Supreme Courts jurisdiction to hear the appeals. The Supreme Court unanimously holds that the present proceedings do not constitute a criminal cause or matter, with the result that the Court does not have jurisdiction to consider the appeals. Lord Sales gives the judgment, with which all the members of the Court agree. Section 41 of the 1978 Act provides for an appeal to the Supreme Court from any decision of the High Court in a criminal cause or matter [21]. The phrase a criminal cause or matter has been used in two different statutory contexts: first in provisions governing rights of appeal; and second in section 6 of the Justice and Security Act 2013 (the JSA 2013) in relation to a special closed procedure for secret intelligence material in court proceedings. As accepted by the Supreme Court in R (Belhaj) v Director of Public Prosecutions (No 1) [2018] UKSC 33; [2019] AC 593, the statutory context of section 6 of the JSA 2013 is different from that of section 41(1) of the 1978 Act [24]. The Supreme Court reviews the history of the phrase from its first use in section 47 of the Supreme Court of Judicature Act 1873 to the 1978 Act, which replicated in Northern Ireland the appeal system of England and Wales [25] [56]. Two basic features of the regime of appeal rights are important. First, the appeal rights in relation to a High Court decision in a criminal cause or matter are directed primarily to maintaining the coherence of the legal system rather than rectifying specific errors. An appeal to the Supreme Court is only possible if a point of law of general public importance is certified [66]. Second, in contrast, in all other cases appeal rights from the High Court to the Court of Appeal are directed to ensuring that errors at first instance in individual cases can be rectified. No showing of public importance is required [67]. The leading case on the meaning of the phrase a criminal cause or matter is that of the House of Lords in Amand v Home Secretary [1943] AC 147. The approach set out in that decision requires consideration of the proceedings which underlie those in the High Court. A criminal cause or matter will be: (a) one that puts the applicant in jeopardy of criminal punishment; and (b) where that punishment is the direct outcome of the proceeding [66], [77]. The issue raised in the present case does not relate to the commencement or conduct of any underlying criminal process involving Mr Stone. He is not subject to any outstanding undetermined criminal charge on which he will be tried and may be subjected to sentence. The present proceedings are concerned with whether his past criminal sentence has been correctly understood and implemented. The High Court decision was therefore not in a criminal cause or matter and the relevant right of appeal is to the Court of Appeal, not the Supreme Court [78]. As a result, and because the Supreme Court is likely to be assisted by consideration by the Northern Ireland Court of Appeal on the operation of the 1998 Act, should the case return for consideration, the Supreme Court does not think it appropriate to say anything about the merits of the appeals [96].

The appellant arrived in the UK in 2003 as a refugee from Iran, where she had been subject to imprisonment and torture. She gained indefinite leave to remain in 2009, the year in which she applied to the respondent council for accommodation as a homeless person. Part VII of the Housing Act 1996 includes the statutory provisions under which local housing authorities are required to secure provision of suitable accommodation for a person who is homeless and in priority need, and has not become homeless intentionally. Sub sections 193(7) and (7F) contain the critical provisions in this case, dealing with the circumstances in which that duty ceases, namely when the applicant refuses a final offer of accommodation. However, the housing authority shall not make a final offer of accommodation unless they are satisfied that the accommodation is suitable for the applicant and that it is reasonable for him to accept the offer. In November 2012 the respondent offered the appellant accommodation in Norland Road, London in a first floor, two bedroom flat. The appellants concerns about the physical features of the property (including the small size of the windows) were first raised in correspondence of 29 November 2012, including a letter from the appellants therapist and her GP, and in a solicitors letter of 30 August 2013. The appellant ultimately refused this final offer of permanent accommodation at the property on the basis that it had features which reminded her of her prison in Iran and which would exacerbate her post traumatic stress disorder, anxiety attacks and other conditions. The issue in the case turned not on the suitability of the accommodation, but whether it was reasonable for the appellant to accept it. Following a review these grounds were held to be insufficient to justify her refusal. The councils decision was upheld on appeal by the county court and by the Court of Appeal. The Supreme Court unanimously dismisses the appeal and confirms the decision of the review officer. Lord Carnwath gives the judgment, with which the other Justices agree. Two issues arise on this appeal: (1) whether the Supreme Court should depart from the its own decision in Ali v Birmingham City Council [2010] 2 AC 39 in light of the European Court of Human Rights (ECtHR) judgment in Ali v United Kingdom (2016) 63 EHRR 20, and if so to what extent; and (2) whether the reviewing officer should have asked himself whether there was a real risk that the appellants mental health would be damaged by moving into the accommodation offered, whether or not her reaction to it was irrational, and if so, whether he did in fact apply the right test [3]. Ali v Birmingham City Council In Ali v Birmingham City Council the Supreme Court decided that the duties imposed on housing authorities under Part VII of the Housing Act 1996 did not give rise to civil rights or obligations and so Article 6 of the European Convention on Human Rights did not apply to it. In Ali v United Kingdom the ECtHR held that Article 6.1 did apply, but accepted that in any event the procedure applied under the Housing Act conformed to its requirements [18]. The review of the domestic authorities shows a continuing debate on this issue, against the backdrop of uncertain Strasbourg jurisprudence. The unanimous judgment of the Supreme Court in Ali v Birmingham City Council was intended to settle the issue at domestic level after a full review of the Strasbourg authorities [32]. The Chamber in Ali v United Kingdom acknowledged the weight to be given to the interpretation of the relevant provisions by the domestic courts and it is thus surprising that it failed to address in any detail either the Supreme Courts reasoning or its concerns over judicialisation of the welfare services. The Chamber instead focused on two obiter remarks by Hale LJ (as she then was) and Lord Millett; its treatment of these two statements is open to the criticism that they were taken out of context [33, 34]. Further questions can also be raised about the Chambers reliance on the decision in Schuler Zgraggen v Switzerland as an example of entitlement subject to discretion: the statute in question gave a right to a full invalidity pension where incapacity of at least 66.66% was established. It is hard to see any fair comparison with the range of factors to which authorities are entitled to have regard in fulfilling their obligations under the housing legislation [35]. The Courts duty under the Human Rights Act 1998 is to have regard to the decision of the Strasbourg court Section. There appears to be no relevant Grand Chamber decision on the issue, but the Supreme Court would normally follow a clear and constant line of chamber decisions. In Ali v United Kingdom it is apparent from the Chambers reasoning that it was consciously going beyond the scope of previous cases and its answer to Lord Hopes concern that there was no clearly defined stopping point to the process of expansion seems to have been that none was needed. That is a possible view, but one which should not readily be adopted without full consideration of its practical implications for the working of the domestic regime [36]. This is a case in which the Supreme Court should not regard the Chambers decision as a sufficient reason to depart from its own fully considered and unanimous conclusion in Ali v Birmingham City Council. It is appropriate to await a full consideration by the Grand Chamber before considering whether (and if so how) to modify the domestic position [37]. The reviewing officers approach The appeal on this issue well illustrates the relevance of the warning against over zealous linguistic analysis. This is not to diminish the importance of the responsibility given to housing authorities under the 1996 Act (and reinforced in the case of disability by the Equality Act 2010). The decision letter viewed as a whole reads as a conscientious attempt by a hard pressed housing officer to cover every conceivable issue raised in the case: he clearly understood the importance of considering her mental state against the background of her imprisonment in Iran [39]. Although the officer did not in terms address the appellants claim to have suffered a panic attack, it is hard to criticise him for giving little weight to an incident which she had not mentioned at the time, nor apparently to her medical advisers. The issue for him was not her immediate reaction on one short visit, but show she would reasonably have been expected to cope with living there in the longer term. On that he was entitled to give weight to the medical evidence submitted by her, and consider how far it supported her case [40]. It might well have been unreasonable to offer her accommodation with very small dark rooms without windows at a normal height and looking out onto everyday life, but that was not a reasonable description of this particular property, nor a sufficient ground for her not accepting it. There is no difficulty in understanding the officers reasoning overall, nor does it disclose any error of law [41].

The appellant is a Turkish airline, largely owned by Mr Bagana. Prior to its liquidation, the respondent was a holiday tour company which had been wholly owned by Mr Aydin. The respondent, by its liquidator, sued the appellant in relation to two agreements between the parties. Rose J held that the appellant had dishonestly assisted Mr Aydin in defrauding the respondent and that it should pay damages to it in the sum of 3.64 million. The appellant was granted permission to appeal to the Court of Appeal against the order of Rose J. By an application made under then Rule 52.9(1)(c) of the Civil Procedure Rules, the respondent requested that the court should impose on the appellant a number of conditions for the continuation of its appeal. One requested condition was that the appellant should pay into court the sum of 3.64 million which Rose J had awarded to the respondent, on the basis that the appellant was likely to have no other assets even temporarily in England and Wales. The appellant disputed the imposition of this condition, but it did not allege that the disputed condition would stifle its appeal. By order dated 11 June 2015, Floyd LJ concluded that there was a compelling reason for imposing a condition and required that the appellant, as a condition for the continuation of its appeal, pay into the court (or otherwise secure payment of) 3.64 million by 9 July 2015. The appellant did not pay the sum into court. On 14 January 2016 Patten LJ heard the anticipated application by the respondent for dismissal of the appeal, together with a cross application by the appellant for discharge of the condition on the ground that payment of that sum was now beyond its means and its continuation would stifle the appellants appeal. Patten LJ held that the appellants appeal should be dismissed on the grounds that in exceptional circumstances the ability of a third party to provide funds, in this case Mr Bagana, could be taken into account in assessing the likelihood that a company could make a payment into court. Patten LJ stated that Mr Bagana has decided not to fund the payment by the company and concluded that the appellant had not established that the condition for payment would stifle its appeal. The appellant alleges that Patten LJ erred in his application of the relevant principles and in concluding that its relationship with Mr Bagana was such as to defeat its complaint that the condition for payment would stifle the appeal. The Supreme Court by a majority of 3 to 2 allows Onur Air Taimacilik As appeal. It remits both applications to Patten LJ to determine the appellants application for discharge of the condition by reference to the correct criterion [26]. Lord Wilson gives the lead majority judgment, with which Lord Neuberger and Lord Hodge agree. Lord Clarke and Lord Carnwath give dissenting judgments. Principles To stifle an appeal is to impose a condition which prevents an appellant from bringing it or continuing it. If an appellant has permission to bring an appeal, it is wrong to impose a condition which has the effect of preventing him from bringing it or continuing it. For the purposes of Article 6 of the European Convention on Human Rights, there will seldom be a fair hearing if a court which has permitted a litigant to bring an appeal then, by indirect means, does not permit him to bring it [12]. The appellant must establish on the balance of probabilities that a proposed condition would stifle the continuation of its appeal [15]. The courts can proceed on the basis that, were it to be established that the condition would probably stifle the appeal, the condition should not be imposed [16]. Even if an appellant appears to have no realisable assets, a condition for payment will not stifle its appeal if it can raise the sum [17]. However, the court must be cautious in respect of a suggestion that a corporate appellant can raise money from its controlling shareholder. The shareholders distinct legal personality must remain in the forefront of its analysis. The question should always be whether the company can raise the money and never whether the shareholder can raise the money [18]. The criterion which should be applied is as follows: Has the appellant company established on the balance of probabilities that no such funds would be made available to it, whether by its owner or by some other closely associated person, as would enable it to satisfy the requested condition? [23]. Where a company and/or its owner denies that the necessary funds would be made available to the company, the court should not take that assertion at face value. It should judge the probable availability of the funds by reference to the underlying realities of the companys financial position and to its relationship with its owner, including the extent to which he is directing its affairs and is supporting it in financial terms [24]. Application of principles to the present case The appellants application for discharge of the condition was refused by reference to the incorrect criterion. Patten LJ proceeded by reference to the Court of Appeals misconception in Hammond Suddard Solicitors v Agrichem International Holdings Ltd [2011] EWCA Civ 2065 and Societe Generale SA v Saad Trading, Contracting and Financial Services Co and Al Sanea [2012] EWCA Civ 695, that in exceptional circumstances an order for a party, without apparent assets of its own, to make a payment into court could be justified by whether another person probably could advance the necessary funds to it irrespective of whether he probably would do so [25]. Dissenting Judgments Lord Clarke and Lord Carnwath would have dismissed the appeal. Patten LJ did not materially misstate the relevant principles or arrive at the wrong conclusion [27, 46]. Where a company does not have resources of its own and the issue is whether it has access to the resources of others, the question is whether the company would (not could) have had access to the resources [42]. There was no direct evidence from Mr Bagana on the question of whether he would have declined to provide funds. The evidence falls far short of establishing that the condition would stifle the appeal [44, 48].

The appellant, Taurus Petroleum Limited (Taurus), contracted with the respondent, State Oil Marketing Company of the Ministry of Oil, Republic of Iraq (SOMO). Disputes arose and in 2013 Taurus obtained an arbitral award against SOMO. Shell International Eastern Trading Co had purchased two parcels of crude oil from SOMO. The price was to be paid under two letters of credit, issued by the London branch of Crdit Agricole S.A. (CA) addressed to Central Bank of Iraq (CBI) instructing it to advise each credit to SOMO. Under each letter of credit, SOMO was identified as the beneficiary, but it was provided that payment was to be made in New York to the Iraq Oil Proceeds Account at the Federal Reserve Bank of New York. Each contained a promise on the part of CA in favour of CBI to make payment in that way, irrespective of any conflicting instructions which might be given by SOMO. The letters stated that the credit was subject to the Uniform Customs and Practice for Documentary Credits (2007 Revision) (UCP). SOMO presented conforming documents to CA. Taurus obtained an order permitting the award to be enforced as a judgment in England. Taurus also obtained a third party debt order (TPDO) in respect of the proceeds due under the credits, with a view thereby to satisfying SOMOs judgment debt to it, together with an associated receivership order. SOMO challenged these orders, which the High Court set aside. The Court of Appeal upheld that result, albeit for different reasons. Taurus appealed to the Supreme Court. The issues argued on appeal were: (i) whether SOMO was the sole creditor or a creditor at all of CA under the letters of credit, (ii) whether CAs obligations to CBI under the letters prevented the court from making a TPDO, (iii) the location of the debts and (iv) whether a receivership order was appropriate in the circumstances. The Supreme Court allows the appeal by a majority of three to two. Lord Clarke gives the lead judgment, and. Lord Sumption and Lord Hodge concurring judgments. Lord Neuberger and Lord Mance dissent. The interpretation of the letters of credit The court could make the TPDO only if CAs debt was owed to SOMO as the sole creditor, notwithstanding CAs obligation to make payment to an account in the name of CBI. [3, 9]. SOMO was the sole beneficiary of the letters of credit because: (i) the language of the letters expressly identifies SOMO as the beneficiary [18 19, 62 63, 76] and (ii) that conclusion fits with the use of the term beneficiary in articles 2 and 18 of the UCP, which must be considered in interpreting the letters and to which the credit was subject [19 20, 62, 76]. In the absence of a clear statement to the contrary, CAs primary obligation to make payment was owed to SOMO alone. CAs separate obligation, owed jointly to SOMO and CBI under each letter, was collateral to that primary obligation [23, 65, 79]. Lord Sumption adds that, if the parties had intended CBI to be the debtor, the obvious solution would have been a transfer or assignment of credit to CBI, as permitted by article 38 of the UCP [64]. Lord Sumption and Lord Hodge each reason that nothing in the terms of the letters shows any such transfer, and the terms expressly exclude that possibility [64, 77]. The location of the debt Debts have a location for legal purposes. If CAs debts were situated outside England and Wales, the court would be unable to make a TPDO in respect of them unless, under the law of the location, payment in compliance with the TPDO would discharge CA from those debts to the extent of CAs payment [29]. The debts were located in England, because that was where they were recoverable [30 31]. The Court of Appeal had been bound by its own reasoning in Power Curber v National Bank of Kuwait SAK [1981] 1 WLR 1233, so had instead concluded that the debts were located where they were payable. The reasoning in that case was not extensive, has not become well established, and was incorrect [32 41]. The effect of CAs obligations to CBI There is no independent rule that a TPDO can be made only in respect of property with which the judgment debtor can honestly deal. The rule is only that a TPDO cannot be made in respect of property which does not belong to the judgment debtor. Unpaid debts under the letters of credit were not CBIs property [45 46]. Lord Sumption and Lord Hodge each add that the TPDO modified CAs primary obligation, which was owed to SOMO and which was to pay money into CBIs account, so that payment in compliance with the TPDO discharged CA from its debt to SOMO. CAs collateral obligation to CBI was to discharge that primary obligation by a particular payment method. Once the primary obligation was discharged, that collateral obligation falls away. Compliance with the TPDO would consequently discharge CA from its liabilities to the extent of its payment. As a result, CAs obligations to CBI could not prevent the court from making the TPDO [70 71, 79]. The receivership order A receivership order is appropriate because: (i) it was predictable, in all the circumstances, that SOMO would be sued in England, under English law, for the purpose of enforcing the arbitral award if SOMO declined to honour that award; (ii) domestic and international policy favours the efficient recognition and enforcement of arbitration awards; (iii) it would be inconsistent to treat the arbitration award as a judgment of the English courts for enforcement purposes, whilst limiting the available enforcement methods on the basis of an insufficient connection to this jurisdiction [54 55]. CBIs account in New York is merely the conduit via which monies paid from CA pass onwards into the Iraqi government budget. There is no evidence that CA would be prejudiced by the receivership order. [56 58]. Dissenting judgments Lord Mance and Lord Neuberger give dissenting judgments. They each conclude that the letters of credit created debts which were owed to CBI alone [94 101, 126 138]. Lord Mance further considers that the TPDO would contravene the principle that a TPDO cannot place a judgment creditor (Taurus) in a better position than the judgment debtor (SOMO) in relation to the third party (CA) [90 91, 115]. There is no basis, in his opinion, for regarding CAs obligations to pay CBI as collateral to, or conditional on, some primary obligation to pay the proceeds to SOMO [112 113, 117]. Lord Neuberger reasons further that CAs compliance with the TPDO could not discharge any separate obligation owed to CBI, effectively requiring CA to pay the sums due under the credits twice: once pursuant to the TPDO, and once pursuant to its obligations to CBI. The TPDO was inappropriate for that reason [141] and/or because it would grant Taurus rights to the sums which prevailed over those of CBI, in circumstances where Taurus knew of CBIs prior rights [143].

In 1999 the Inland Revenue [now known as Her Majestys Revenue and Customs, HMRC] published a booklet known as IR20 and entitled Residents and Non Residents Liability to tax in the United Kingdom, which offered general guidance on the word residence and the phrase ordinary residence for the purposes of an individuals liability for UK income and capital gains tax. IR20 remained operative until 2009. The Appellants contend that, on its proper construction, IR20 contained a more benevolent interpretation of the circumstances in which an individual becomes non resident and not ordinarily resident in the UK than did the ordinary law; alternatively that prior to 2005 it was the settled practice of HMRC to adopt such a benevolent interpretation of IR20. Either the construction or the practice gave rise (so they say) to a legitimate expectation that the benevolent interpretation would be applied to determinations of their status for tax purposes and consequently HMRC should not have determined that, during the years relevant to them, they were resident or ordinarily resident in the UK. The First Appellants, Mr Davies and Mr James, contend that prior to 6 April 2001 they left the UK for the settled purpose of establishing and working full time for a Belgian company. Although their wives and Mr Davies daughters remained resident in the UK and although they returned frequently to the UK, albeit for short periods, they contend that they are entitled to be treated as non resident and not ordinarily resident in 2001 2002 by reference to paragraph 2.9 of IR20 since they had gone abroad for a settled purpose and had remained abroad for at least a whole tax year. The situation of the Second Appellant, Mr Gaines Cooper, is different from that of the First Appellants in that it has already been conclusively determined, by reference to the ordinary law, that he was resident and ordinary resident in the UK in the years relevant to him. He contends, however, that his status should instead be determined by reference to paragraphs 2.8 and 2.9 of IR20 or to the alleged settled practice and that, on either basis, he was not resident in the UK from 1993 to 2004 nor ordinarily resident here from 1992 to 2004. The High Court refused the Appellants permission to apply for judicial review of the determinations by HMRC that they were resident and ordinarily resident in the UK in the relevant years. The Court of Appeal granted them permission but dismissed their substantive applications. The Appellants appeal to the Supreme Court. The Supreme Court, by a 4 1 majority, dismisses the two appeals on the grounds that the proper construction of IR20 does not support the Appellants contentions and that there is insufficient evidence of any settled practice on the part of the HMRC by way of departure from the IR20 guidance. Lord Wilson gives the leading judgment; Lords Hope, Walker and Clarke give short concurring judgments. Lord Mance gives a dissenting judgment. An individuals status as being resident and ordinarily resident in the UK largely determines his liability for UK income tax and capital gains tax. In law an individual who has been resident in the UK ceases to be so resident only if he ceases to have a settled or usual abode in the UK per Levene v Inland Revenue Comrs [1928] AC 217 [13 Section 334 of the Income and Corporation Taxes Act 1988 (now replaced) also provided that an individual would nevertheless be deemed to have remained resident in the UK if he had left the UK for the purpose only of occasional residence abroad [15 17]. At law, an individual needs to effect a distinct break in the pattern of his life in the UK in order to become non resident per Reed v Clark [1986] Ch 1 [18 19]; this mandates a multifactorial evaluation of his circumstances [20]. But an individuals pursuit of full time employment abroad is likely to be sufficient to cause him to cease to be a UK resident and not to be deemed under the statute still to be a UK resident [21]. HMRC issued guidance on residence and ordinary residence in IR20. HMRC accepts that it is bound by whatever might be the proper construction of the guidance and that the guidance gave rise to a legitimate expectation that it would appraise any individuals case by reference to such guidance even if it failed to reflect the ordinary law [27]. The First Appellants contend that HMRC represented in IR20 that non residence was achieved if an individual left the UK to take up full time employment abroad, or left the UK permanently or for at least three years, or went abroad for a settled purpose and remained abroad for at least a whole tax year, provided in each case that any visits to the UK totalled less than six months in any one year and averaged less than 91 days each year [the day count proviso] [30]. The Second Appellant contends that HMRC thereby represented that it was sufficient for an individual to live abroad for at least three years and to satisfy the day count proviso, thus eliminating any need for consideration of whether he had effected a distinct break in the pattern of his life in the UK [31]. The majority holds that the proper construction of IR20, when read as a whole, does not support the Appellants contentions [45, 64]. Paragraph 2.1 indicated that an individuals claim to non residence would generate consideration of various aspects of his life with a view to the identification of its usual location [35]. The heading to paragraphs 2.7 to 2.9 namely Leaving the UK permanently or indefinitely required consideration of the quality of his absence from the UK [37]. Paragraph 2.9, which stated that if an individual had gone abroad for a settled purpose, he would be treated as not resident and not ordinarily resident if his absence from the UK had covered at least a whole tax year and he had met the day count proviso, could not be construed as a freestanding route to non residence since there was an express link to paragraph 2.8, which required an individual to leave indefinitely [41]. Although its exposition of how to achieve non residence should have been much clearer, IR20, taken as a whole, informed the ordinarily sophisticated taxpayer that he had to leave the UK permanently, indefinitely or for full time employment; had to do more than to take up residence abroad; and had to relinquish his usual residence in the UK. It also informed him that any subsequent returns to the UK had to be no more than visits and that any property retained in the UK by him for his use had to be used for the purpose only of such visits rather than as a place of residence [45]. He will have concluded that such requirements in principle demanded, and might well in practice generate, a multifactorial evaluation of his circumstances [45, 64] and, in summary, that he had to make a distinct break [45]. Alternatively, IR20 was so unclear as to communicate nothing to which legal effect might be given [47]. The majority holds that there was insufficient evidence that HMRC had departed from IR20 as a matter of settled practice [58]. Such a contention requires evidence that the practice was so unambiguous, so widespread, so well established and so well recognised as to amount to a specific commitment of treatment in accordance with it [49] but the Appellants evidence to this effect was far too thin and equivocal [58]. Lord Mance, dissenting, holds that the references to going abroad permanently or living outside the UK for three years or more in paragraphs 2.7 2.8 referred to the taxpayers intention regarding the duration of his absence rather than the quality of any absence or the nature of any return visits or continuing UK connections [89]. Paragraph 2.9 was designed to assist taxpayers who never intended to leave permanently or indefinitely, but went abroad for a settled purpose to engage in an overseas activity for an extended period of time of lesser duration [89]; or where the taxpayer could subsequently show he had acquired an intention to leave the UK permanently or that his actual absence covered three years from departure [90]. It would be remarkable if there were a requirement for a distinct break from life in the UK when no such requirement was clearly expressed [93] and other factors, including the day count proviso, militated against such a requirement [95; 96].

Oceancrown Ltd, Loanwell Ltd and Questway Ltd were part of a group of companies controlled by Ralph Norman Pelosi (Mr Pelosi senior). Norman Ralph Pelosi (Mr Pelosi junior) was the sole shareholder and director of Stonegale Ltd. The three companies controlled by Mr Pelosi senior went into administration in 2011. In November 2010, nine months prior to the companies entering administration, three properties were transferred to Stonegale Ltd and one property was transferred to Mr Pelosi junior directly. Conjoined proceedings were brought by the joint administrators of the three companies in respect of these alienations under section 242 of the Insolvency Act 1986, on the basis that these were gratuitous alienations (in lay terms, a gift by the insolvent party challengeable by liquidators or administrators). Stonegale Ltd and Mr Pelosi junior argued that the four dispositions under challenge were made by the companies for adequate consideration (a reasonable price). The Lord Ordinary held that the dispositions were gratuitous alienations, setting aside three of the dispositions and ordering Mr Pelosi junior to repay the 125,000 he had received for the sale of the fourth property. This decision was upheld by the Extra Division of the Inner House. Stonegale Ltd and Mr Pelosi junior appeal the decision to the Supreme Court. The Supreme Court unanimously dismisses Stonegale and Mr Pelosi juniors appeal. Lord Reed gives the judgment, with which the other Justices agree. Lord Reed finds that the Appellants submission that the administrators could have pursued a number of alternative remedies is not relevant to the issue which this court must determine, which is whether the Respondents are entitled to the remedy they have sought on the basis that the four dispositions are gratuitous alienations [17]. Lord Reed holds that the gratuitous nature of the alienations was clearly explained by the Lord Ordinary and is plain and obvious. Prior to the conveyances, the companies owned five properties: 110, 210, 260 and 278 Glasgow Road, and 64 Roslea Drive. The Anglo Irish Bank (the bank) held standard securities over each of these five properties, having made available to Oceancrown a secured facility in the region of 17.3 million, which was cross guaranteed by the other two companies [4]. In August 2010 the banks solicitors were informed by Mr Robert Frame, a solicitor of Miller Becket and Jackson (MBJ), of the details of the properties and the relevant sale price in relation to the release of the five properties from the banks securities. The banks solicitors were informed that the sale prices were as follows: 762,000 for 278 Glasgow Road; 200,000 for 110 Glasgow Road; 934,000 for 210 Glasgow Road; 450,000 for 260 Glasgow Road. They were also informed that 64 Roslea Drive was to be sold for 68,000, bringing the total sale price of the five properties to 2,414,000. This information was passed to the bank [6]. On 10 November 2010 the property at 278 Glasgow Road was disponed by Oceancrown for 762,000 to a company called Strathcroft Ltd, which was also owned by Mr Pelosi senior. On the same day, Strathcroft disponed the same property to Clyde Gateway for 2,467,500, a sum far in excess of an earlier valuation of 762,000. The Lord Ordinary found that Strathcrofts involvement was to provide a short lived intermediary between Oceancrown and Clyde Gateway, describing it as a cog in Mr Pelosis machine [7]. No sales had been agreed in respect of the other four properties [6]. Strathcroft, on the instructions of Mr Pelosi senior, authorised MBJ to send the bank the sum of 2,414,000 in respect of purchases of [the five properties] on 16 November 2010, and Mr Frame transmitted the money to the bank. The bank then executed discharges of the standard securities over all five properties. The Lord Ordinary found that the bank was misled in relation to the funds it received and that had it known that only 278 Glasgow Road was sold, whilst the overall reduction in bank indebtedness would have occurred, the bank would only have discharged the standard security over that property [8]. As a consequence of misleading the bank, Mr Pelosi seniors companies retained the other four properties valued at 1.525 million, free of the banks standard securities [9]. On 24 November 2010, 110, 210 and 260 Glasgow Road were disponed to Stonegale Ltd and 64 Roslea Drive was disponed to Mr Pelosi junior. Nothing was paid for these properties [10]. A loan agreement between Strathcroft Ltd and Stonegale Ltd signed by Mr Pelosi junior and dated 16 November 2010 which purported to enable the latter to finance the purchase of the properties at 110, 210 and 260 Glasgow Road was found by the Lord Ordinary to be a sham, concocted purely for the purpose of the defence of these proceedings [11]. Lord Reed finds that there was no reciprocity between the disposal of the four properties, which were gifted to Stonegale Ltd and Mr Pelosi junior, and the earlier payment to the bank. The transactions had the purpose and effect of diverting assets from the companies creditors, which was exactly what section 242 of the Insolvency Act 1986 is intended to prevent [17].

The issue in this appeal is whether certain policies adopted by the Department of Work and Pensions (DWP) in the administration of the welfare benefits system are, when applied to people with a reassigned gender, in breach of the Gender Recognition Act 2004 (the GRA), the Human Rights Act 1998 (the HRA) or the Equality Act 2010 (the EA). The appellant C has undergone gender reassignment from male to female. She was issued with a gender recognition certificate (GRC) in 2006. Since June 2010 she has been unemployed, apart from a period in 2015 16. In order to receive Jobseekers Allowance (JSA) she has to attend a Jobcentre Plus (JCP) office in person every two weeks. The DWP uses a centralised database, the Customer Information System (CIS), to record information about each of its customers, including his or her current sex, the fact that he or she was previously recorded as having a different sex (if applicable), his or her current name and title, and his or her former names and titles (if applicable), the fact that a person has a GRC and its date, and the reason for a change of recorded sex being gender reassignment (if this is the case). These data are held for the life of the individual concerned and for 50 years and a day thereafter (the Retention policy). This is because gender at birth at present remains relevant to the calculation of state pension entitlement, and in order to detect fraud. The fact of a GRC and the reason for a change of recorded sex being gender reassignment is no longer visible to front line staff, but any previous name, title or gender is visible. Access to an individuals CIS record is not required for the routine issue of benefit payments, but it will be required, for example, to make routine changes, such as a change of address. However, the DWP also has a Special Customer Records policy (the SCR policy) which applies to certain categories of customer who require extra protection for their privacy and is routinely applied to transgender customers unless they ask otherwise. This requires specific authorisation for access. This has the effect that there are delays in accessing the account to authorise payment and it alerts the front line staff to the probable reason for the restricted access. C has suffered distressing incidents at JCP offices when her transgender status has been openly referred to. After exploring possible alterations with the DWP, C issued proceedings in 2012. The High Court made a declaration that the Retention Policy was in breach of the right to respect for private life protected by article 8 of the European Convention on Human Rights (ECHR) as it was not sufficiently clear and accessible to be in accordance with the law. It has now been clarified. Her appeal to the Court of Appeal against the dismissal of her other claims was dismissed. The Supreme Court unanimously dismisses the appeal. The Retention and SCR policies are not unlawful under the GRA, the HRA or the EA. Lady Hale gives the only substantive judgment. Lawfulness under the GRA S 9 GRA provides that where a GRC is issued a persons gender becomes for all purposes the acquired gender. It does not rewrite history or require the previous state of affairs to be expunged from official records, but other sections offer additional protection against inappropriate official disclosure of that prior history [23 25]. The Retention and SCR policies are not therefore inconsistent with or prohibited by any provision of the GRA [26]. Lawfulness under the HRA The Retention and SCR policies do constitute a very serious interference with the rights of transgender people to respect for their private life protected by article 8 ECHR [31]. The justifications relied on by the DWP the need to retain information for the time being for the purposes of calculating state pension rights, and to identify and detect fraud are legitimate [34] and rationally connected with the policies [35]. The question is whether the policies are proportionate. In carrying out the balancing exercise it is relevant that front line staff will only rarely have to access the CIS, that the DWP has been engaging with C over many years to try to understand and cater for her concerns, that it is no simple matter to modify existing computer systems designed to cater for vast numbers of customers, which interact with one another in complex ways, and that it is not possible to make further adjustments to the CIS without inordinate expense. It is not for the courts to administer the benefits system [36]. The Retention policy is therefore a proportionate means of achieving its legitimate aims [37]. The SCR policy cannot be considered in isolation from it. It has the legitimate aim of protecting the privacy of those customers who need and want it. The problems associated with it are inevitable if access to the CIS is to be restricted. It too is justified [38]. Lawfulness under the EA There is no direct discrimination on the ground of gender reassignment [43]. The details of all customers who change their names and titles are recorded on the CIS [42]. Transgender customers who need and want it are treated differently under the SCR policy [41]. They are not treated less favourably as a result of their transgender status. The claim of indirect discrimination also fails. The court accepts that gender reassignment changes ones identity at a much deeper level than name changes for other reasons. However the SCR policy is a proportionate means of achieving a legitimate aim for the purposes of s 19(2)(d) EA and for the same reasons any discrimination is justified for the purposes of article 14 of the ECHR [44].

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

On 22 March 2010 (tax year 2009/10), Mr Derry bought 500,000 shares at a cost of 500,000 in a company called Media Pro Four Ltd. On 4 November 2010 (tax year 2010/11) he sold them to the Island House Private Charitable Trust for 85,500, realising a loss of 414,500. In his tax return for 2009/10, submitted by his accountants on 24 January 2011, Mr Derry claimed share loss relief for that amount against his income for that year under section 132 of the Income Taxes Act 2007 (the 2007 Act), with the aim of reducing to that extent his taxable income for that year. Her Majestys Revenue and Customs (HMRC) have identified the claim as a case of possible tax avoidance. In December 2011, Mr Derrys accountants submitted his tax return for 2010/11 online, which said that the relief for the loss of 414,500 had already been claimed and relief obtained in 2009/10. In response, HMRC opened an enquiry into the claim for share loss relief. This was made under schedule 1A of the Taxes Management Act 1970 (the 1970 Act) on the basis that it was a claim made outside of a return. It then opened an enquiry into the return for 2010/11 under section 9A of the 1970 Act. HMRC subsequently issued a demand for 95,546.36 with interest. Mr Derry began judicial review proceedings relating to the demand. The two issues were: (1) Whether, having exercised his right to claim the relevant loss relief in the previous year (2009/10), Mr Derry was correct to deduct that loss in calculating his net income for that year; or whether, as HMRC contend, that right was overridden by schedule 1B of the 1970 Act, such that the loss, although claimed in year 2009/10, was to be treated as relating to the following year. (2) Whether, if it was an error for Mr Derry to make a claim for relief in the tax return for 2009/10, that claim is nonetheless part of the tax return for that year. Mr Derry failed on both issues in the Upper Tribunal. On the first issue, the Court of Appeal found in favour of HMRC. On the second issue, it found in favour of Mr Derry that the claim for relief was part of the 2009/10 return. As HMRC had failed to open an enquiry into the 2009/10 return within the statutory time limit, it allowed the claim for judicial review. HMRC appeals the decision on the second issue. Mr Derry resists the appeal on that issue but seeks to uphold the decision in any event on the first issue. The Supreme Court unanimously dismisses the appeal as it finds in favour of Mr Derry on the first issue. The loss relief was correctly deducted from the net income for 2009/10. Lord Carnwath gives the lead judgment, with which Lord Reed, Lady Black and Lord Kitchin agree. Lady Arden gives a concurring judgment. (1) HMRCs appeal: whether the loss relief was correctly deducted from the net income in 2009/10. Lord Carnwath observes that section 23 and sections 131 132 of the 2007 Act create a clear and self contained code for the treatment of a claim to share loss relief such as that of Mr Derry. Sections 132 133 give him an entitlement to make the claim, to specify the tax year to which it is to be applied, and to do so by deducting it in the calculation of his net income for the purpose of section 23 [35]. It would be extraordinary for that entitlement to be taken away, without any direct reference or signpost, by a provision in a relatively obscure schedule of another statute (schedule 1B of the 1970 Act), which is concerned principally with management of tax, rather than with liability. Provisions in the 2007 Act which refer to the 1970 Act do not assist. For example, while sections 60(2) and 128(7) of the 2007 Act refer to schedule 1B of the 1970 Act as a qualification of the rights otherwise conferred by those provisions, the absence of similar words in section 132 of the 2007 Act indicates that this right is not subject to the same qualification [36]. The words of schedule 1B of the 1970 Act are not sufficient to displace the clear provisions of the 2007 Act in respect of liability. As the governing statute in respect of tax liability, the 2007 Act should take precedence in the absence of any indication to the contrary [37]. Any such indications in the legislative history or the explanatory notes to the 2007 Act do not provide a basis for departing from the ordinary principles of statutory interpretation. There is no suggestion that they produce an absurd or unworkable result, and for the taxpayers liability to be determined by reference to legal archaeology would negate the whole purpose of the tax law rewrite [38]. Lord Carnwath endorses the guidance on interpreting consolidation statutes, such as the 2007 Act, in Eclipse Film Partners (No 35) LLP v Commissioners of Her Majestys Revenue and Customs [2013] UKUT 639 (TC) at paragraph 56 [9 10]. Lady Arden adds that the courts may look at previous case law on consolidated provisions in the interests of the consistency of the law, the fulfilment of Parliaments presumed intention that the law should not be changed, and the efficient use of judicial resources [88]. (2) Mr Derrys cross appeal: whether an erroneous claim for loss relief would be part of the 2009/10 tax return. Lord Carnwath notes that the conclusion on the first issue makes it strictly unnecessary to reach a conclusion on the second issue [40]. Furthermore, he is not satisfied that the issues were fully explored in argument before the Supreme Court, which concentrated on the entitlement to relief rather than the means of enforcement. There remain unresolved uncertainties as to the correct interpretation of the entries in the online form and their treatment by HMRC, and the relationship between enquiries under section 9A (into a return) and Schedule 1A paragraph 5 (into a claim outside a return) of the 1970 Act [68]. In a separate judgment, Lady Arden expresses the provisional view, in light of the Supreme Courts decision in Commissioners for Her Majestys Revenue and Customs v Cotter [2013] 1 WLR 1514, the provisions of the legislation, the prescribed online tax return form and the evidence of Mr Graham Dean on behalf of HMRC, that the erroneous entry of a loss relief claim, which a tax payer was not entitled to make in that years return, does not form part of the tax return for enquiry purposes. On that basis, HMRC would be right to open an enquiry into the claim and not the return [73 83].

This appeal is about the law on damages for false imprisonment. It requires the Supreme Court to consider the meaning of imprisonment at common law and whether this should be aligned with the concept of deprivation of liberty under the European Convention on Human Rights (ECHR). The claimant (who claims to be a Liberian national named Ibrahima Jalloh, although his identity is disputed by the Home Office) was released from immigration detention on bail in October 2013. On the following day, he reported to an immigration officer. He was given a document headed NOTICE OF RESTRICTION purporting to impose restrictions on him under paragraph 2(5) of Schedule 3 to the Immigration Act 1971. The restrictions included a requirement to report to an immigration officer every Monday, Wednesday and Friday, to live at a specified address in Sunderland, to submit to electronic tagging and to stay at home each night between the hours of 11.00 pm and 7.00 am. The notice warned him that he would be liable to imprisonment or a fine if he failed to comply with the curfew without reasonable excuse. Electronic monitoring equipment was installed and the curfew was in place from 3 February 2014 until 14 July 2016, a total of 891 days. On the whole, the claimant sought to comply with the curfew although he did break it on a number of occasions, leaving the house (among other things) for religious observance and to attend family court proceedings in Coventry. It transpired in 2016 that the Secretary of State had no legal power to impose restrictions by way of curfew in this way: R (Gedi) v Secretary of State for the Home Department [2016] EWCA Civ 409. In consequence of that decision, the High Court ordered the claimants curfew to be lifted. The Secretary of State now accepts the curfew was unlawful from the start. The claimant sought damages for false imprisonment, arguing he had been confined to his house without any legal basis for long periods of time. Mr Justice Lewis accepted that argument and awarded him 4,000 in damages. The Court of Appeal upheld his decision. On appeal to the Supreme Court, the Home Secretary argues that (1) the curfew (although unlawful) did not qualify as imprisonment at common law; and (2) if it did, the common law concept of imprisonment should be modified and aligned with the more demanding concept of deprivation of liberty under article 5 of the ECHR. The Supreme Court unanimously dismisses the Secretary of States appeal. Lady Hale gives the only judgment with which Lord Kerr, Lord Carnwath, Lord Briggs and Lord Sales agree. Imprisonment The essence of imprisonment is being made to stay in a particular place by another person. The methods which might be used to keep a person there are many and various. They include physical barriers, guards or threats of force or of legal process [24]. In this case there is no doubt that the Secretary of State defined the place where the claimant was to stay between the hours of 11.00 pm and 7.00 am. There was no suggestion that he could go somewhere else during those hours without the Secretary of States permission [25]. Although the claimant broke his curfew from time to time, this made no difference to his situation while he was obeying it. Like a prisoner who goes absent from an open prison, or a tunneller who successfully escapes from a prison camp, the claimant was not imprisoned while he was away, but he was imprisoned as long as he stayed at home [26]. Although it was physically possible for the claimant to leave, his compliance was enforced and not voluntary. He was wearing an electronic tag which meant that leaving his address would be detected. The monitoring company would then telephone him to find out where he was. He was warned in the clearest possible terms that breaking the curfew could lead to a 5,000 fine or imprisonment for up to six months or both. He was well aware that it could also lead to his being detained again under the 1971 Act. All of this was backed up by the full authority of the State, which was claiming to have the power to do this [27]. This is a case of classic detention or confinement [28]. Deprivation of liberty The ECHR distinguishes between deprivation and mere restriction of physical liberty. Whether there has been a deprivation of liberty depends on a number of factors including the type, duration and effects of the confinement [29] [30]. In Secretary of State for the Home Department v JJ [2007] UKHL 45, Lord Brown expressed the view that an eight hour curfew would not amount to a deprivation of liberty for these purposes [32]. Consequently, the Secretary of State argued the curfew in this case would not amount to a deprivation of liberty, and suggested the time had come to align the domestic law of false imprisonment with the concept of deprivation of liberty under the ECHR. The Supreme Court unanimously declines to do so. Although the common law may develop to meet the changing needs of society, this proposal would not develop the law but make it take a retrograde step. It would restrict the classic understanding of imprisonment at common law to the very different and much more nuanced concept of deprivation of liberty under the ECHR. This approach derives from the need to distinguish under the ECHR between the deprivation and the restriction of physical liberty. There is no need for the common law to draw such a distinction and every reason for the common law to continue to protect those whom is has protected for centuries against unlawful imprisonment, whether by the state or private persons [33]. Accordingly, it is possible for there to be imprisonment at common law without a deprivation of liberty under article 5. It is not necessary to decide whether the converse is true [34].

Nicola Stocker and Ronald Stocker were husband and wife. Their marriage ended in 2010. Subsequently, Mr Stocker formed a relationship with Ms Bligh. On 23 December 2012, an exchange took place between Mrs Stocker and Ms Bligh on Facebook. In this exchange, Mrs Stocker told Ms Bligh that Mr Stocker had tried to strangle her. Mrs Stocker also said that Mr Stocker had been removed from their home following a number of threats that he had made; that there were some gun issues; and that the police felt that he had broken the terms of a non molestation order. Mr Stocker brought defamation proceedings against Mrs Stocker. He claimed that the meaning of the words tried to strangle me were that he had tried to kill her. Mrs Stocker denied that the words bore that meaning. She claimed that the words would be understood to mean that Mr Stocker had grasped her by the neck and inhibited her breathing so as to put her in fear of being killed. At the start of the hearing, Mr Justice Mitting suggested that the parties should refer to the Oxford English Dictionary. This provided two possible meanings for the verb strangle: (a) to kill by external compression of the throat, and (b) to constrict the neck or throat painfully. During the trial, Mitting J heard evidence from both parties. He accepted that police officers had seen red marks on Mrs Stockers neck two hours after the incident and decided that: The most likely explanation about what happened is that [Mr Stocker] did in temper attempt to silence [Mrs Stocker] forcibly by placing one hand on her mouth and the other on her upper neck under her chin to hold her head still. His intention was to silence, not to kill. In his judgment, Mitting J referred to the dictionary definitions and said that if Mrs Stocker had used the phrase he strangled me, an ordinary reader would have understood her to mean strangle in the sense of a painful construction of the neck. The judge considered, however, that since Mr Stocker had succeeded in painfully constricting Mrs Stockers neck the phrase tried to strangle could not refer to strangle in that sense. He therefore concluded that the phrase tried to strangle meant that Mr Stocker had attempted to kill Mrs Stocker. Mrs Stockers defence of justification was not accepted. The Court of Appeal stated that use of dictionaries does not form part of the process of determining the natural and ordinary meaning of words. It nevertheless considered that no harm had been done in this case as Mitting J had only used the dictionary definitions as a check. It therefore dismissed Mrs Stockers appeal. The Supreme Court unanimously allows Mrs Stockers appeal. It holds that Mitting J erred in law by using dictionary definitions as the starting point of his analysis of meaning and in subsequently failing properly to take into account the context of the Facebook post. Lord Kerr writes the judgment, with which all members of the Court agree. Mitting Js approach produces an obviously anomalous result in that the phrase he strangled me on his analysis entails a less serious accusation than the phrase he tried to strangle me. This is the consequence of confining the meaning of the words exclusively to two dictionary definitions [16 17]. Contrary to the view of the Court of Appeal, Mitting J was not using the dictionary definitions as a check. He referred to these before hearing any argument about meaning and did not use the word check in his judgment or in his exchanges with the lawyers in the case. Instead, Mitting J regarded these definitions as the only possible meanings which he could consider or, at the very least, as the starting point for his analysis [23 24]. Where a statement has more than one plausible meaning, the question of whether defamation has occurred can only be answered by deciding which single meaning should be given to the statement [34]. The primary role of the court is to focus on how the ordinary reasonable reader would construe the words. To fulfil this obligation, the court should be particularly conscious of the context in which a statement is made [38]. The hypothetical reader should be considered to be a person who would read the publication [39]. The fact that this was a Facebook post is critical and it was necessary for the judge to keep in mind the way in which such postings are made and read [41]. It is unwise to search a Facebook post for its theoretical or logically deducible meaning. The search for meaning should reflect that this is a casual medium in the nature of a conversation rather than a carefully chosen expression [43]. People scroll through Facebook quickly and their reaction to posts is impressionistic and fleeting [44]. Through relying on the dictionary definitions, Mitting J fell into legal error. As a consequence of this, he failed to conduct a realistic exploration of how an ordinary reader of the Facebook post would have understood it [47]. As a result of this error of law, the decision on meaning cannot stand and it is appropriate for the Supreme Court to determine the meaning of the post itself [48]. An ordinary reader of the post would have interpreted the post as meaning that Mr Stocker had grasped Mrs Stocker by the throat and applied force to her neck [49]. In light of this, the defence of justification should succeed. Even if Mrs Stockers allegations were considered not to have been established to the letter, there is more than enough to demonstrate that that defence should not fail by reason only that the truth of every charge was not proved [61].

Ss. 58 and 59 of the Offences Against the Person Act 1861 (an Act of the UK Parliament) (the 1861 Act) and s.25(1) of the Criminal Justice Act (NI) 1945 (an Act of the Northern Ireland legislature) (the 1945 Act) criminalise abortion in Northern Ireland. It is not however a crime to receive or supply an abortion where it is done in good faith for the purpose of preserving the life of the mother. Further it is not a crime to receive or supply an abortion where the continuance of the pregnancy will make the woman a physical or mental wreck the Bourne exception following R v Bourne [1939] 1 KB 687. The Northern Ireland Human Rights Commission (NIHRC) challenges the compatibility of the law of Northern Ireland with Art 3 (the prohibition of torture and of inhuman or degrading treatment), Art 8 (the right of everyone to respect for their private and family life) and Art 14 (the prohibition of discrimination) of the European Convention on Human Rights (ECHR) insofar as that law prohibits abortion in cases of (a) serious malformation of the foetus, (b) pregnancy as a result of rape, and/or (c) pregnancy as a result of incest. NIHRC seeks declarations to that effect under s.6 and s.4 of the Human Rights Act 1998 (HRA 1998). These proceedings are brought in the name of NIHRC, rather than the name of particular victims. Examples of particular individuals however were relied on by NIHRC during the proceedings. In the High Court Horner J held that NIHRC had standing to bring these proceedings in its own name. Further Horner J held that sections 58 and 59 of the 1861 Act were incompatible with Art 8 insofar as they criminalise abortion in cases of (a) fatal foetal abnormality, (b) rape up to the date when the foetus is capable of being born alive and (c) incest up to the date when the foetus is capable of being born alive. He made a declaration of incompatibility to that effect under s.4 HRA 1998. He did not consider that the law was incompatible with Art 3. The Northern Ireland Court of Appeal (NICA) held that NIHRC had standing to bring these proceedings. However, in three differently reasoned judgments it concluded that there was no incompatibility with any of the articles of the ECHR. NIHRC appeals the decision of NICA. NICA has also referred a reference from the Attorney General for Northern Ireland on devolution issues under para 33 of sch 10 to the Northern Ireland Act 1998 (NIA 1998). The reference relates to whether NIHRC has standing to bring these proceedings, specifically, whether NIHRC has the power to institute human rights proceedings or to seek a declaration of incompatibility other than in relation to an identified unlawful act. A majority of the court dismisses the appeal. A majority (Lord Mance, Lord Reed, Lady Black and Lord Lloyd Jones) concludes that NIHRC does not have standing to bring these proceedings. As such, the court does not have jurisdiction to make a declaration of incompatibility in this case. A minority of the court (Lady Hale, Lord Kerr and Lord Wilson) considers that NIHRC does have standing to bring these proceedings. A majority of the court (Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) does however consider that the current law in Northern Ireland is disproportionate and incompatible with Art 8 ECHR insofar as that law prohibits abortion in cases of (a) fatal foetal abnormality, (b) pregnancy as a result of rape and (c) pregnancy as a result of incest. Lady Black joins that majority on (a) but not on (b) or (c). A minority of the court (Lord Reed, Lady Black on (b) and (c) and Lord Lloyd Jones) considers that it is not possible to conclude in the abstract, in proceedings of the present nature (as distinct from individual applications), that the current law is disproportionate or incompatible with Art 8. A majority of the court (Lord Mance, Lord Reed, Lady Black and Lord Lloyd Jones) concludes that the current law, in the abstract, is not incompatible with Art 3 ECHR. A minority of the court (Lord Kerr and Lord Wilson) disagrees and considers that it is. Lady Hale expresses sympathy with the view expressed by Lord Kerr but does not consider it necessary to decide on incompatibility in relation to Art 3 in light of her decision on Art 8. Standing Lord Mance (with whom Lord Reed, Lady Black and Lord Lloyd Jones agree) considers that NIHRC does not have standing to bring these proceedings. They were not instituted by identifying any unlawful act or any potential victim of it [73]. NIHRC relies on s.69(5)(b) of the NIA 1998 for its power to institute these proceedings. These proceedings constitute human rights proceedings under s.71(2C)(a)(ii) and are therefore subject to the restrictions in s.71(2B) [54]. Under s.71(2B) and (2C), where NIHRC is instituting human rights proceedings, it need not be a victim, but there must be an actual or potential victim of an unlawful act to which the proceedings relate [54 and 56]. S.71(2C)(b) states that an expression used in s.71(2B) has the same meaning as the same expression used in s.7 HRA 1998. S.7 HRA 1998 refers to s.6(1) for the concept of unlawful act. It does not apply to an authoritys act which was (a) compelled by a provision of primary legislation or was (b) to give effect to or enforce one or more provisions of or made under primary legislation which cannot be read or given effect in a way which is compatible with ECHR rights. Further, under s.6(6) HRA 1998, an act does not include a failure to introduce or lay before Parliament a proposal for legislation or make any primary legislation [57]. It follows that NIHRCs powers under ss.69 and 71 NIA 1998 do not include either instituting or intervening in proceedings where the only complaint is that primary legislation, such as the 1861 Act, is incompatible with the ECHR because such proceedings would not involve any unlawful act within the meaning of ss.6 and 7 HRA 1998 and consequently s.71 NIA 1998 [58]. It is no surprise that Parliament did not provide for NIHRC to have capacity to pursue what would amount to unconstrained actio popularis regarding the interpretation or compatibility of primary legislation with Convention rights [61]. The 1945 Act, as an act of a devolved legislature, is not primary legislation. It might have been open to NIHRC to claim that the failure of the Northern Ireland Assembly to repeal or amend s.25 constituted an unlawful act within the meaning of ss.6 and 7 HRA 1998. However, NIHRC, pursuant to s.71(2B), would still have to demonstrate that there is or would be one or more victims of the unlawful act. That restriction is not satisfied by a general assertion that the failure to abrogate or amend s.25 is likely to give rise to victims. There must be a specific and identifiable victim who is or would be the victim of an unlawful act [72]. Even if NIHRC could establish standing regarding the 1945 Act it would have little practical effect given the ongoing effect of the 1861 Act [72]. A minority of the court (Lady Hale, Lord Kerr and Lord Wilson) concludes that NIHRC does have standing to bring these proceedings. Lady Hale and Lord Kerr (with whom Lord Wilson agrees) hold that there are two separate species of challenge under the HRA 1998. One is for victims to bring proceedings in respect of an unlawful act of a public authority, or to rely on such an unlawful act in other proceedings, pursuant to s.7(1). The other is to challenge the compatibility of legislation under sections 3 and 4 irrespective of whether there has been any unlawful act by a public authority. NIHRC has standing to bring such proceedings by virtue of s.69(5)(b) [17 and 183 184]. In Lady Hales view section 71(2B) and (2C) deal only with proceedings brought by NIHRC or interventions by NIHRC in proceedings brought by others in respect of claims that a public authority has acted or proposes to act unlawfully. But it does not apply to or limit the general power of the NIHRC to challenge the compatibility of legislation under sections 3 and 4 of HRA 1998. The unlawful act means the unlawful act alleged in the proceedings so does not apply where no such unlawful act is alleged [18]. In Lord Kerrs view the only restriction on NIHRCs power to bring proceedings under s.69(5)(b) NIA 1998 is that the proceedings must involve law or practice relating to human rights [184]. Under s.71(2B)(c) the NIHRC may act only if there is or would be one or more victims of the unlawful act. Would be victims indicates an intention that NIHRC should be able to act pre emptively [195]. The majority decision departs in his view from well established authority that an interpretation of a statute which gives effect to the ascertainable will of Parliament should be preferred to a literal construction which will frustrate the legislations true purpose [202 213]. S.71(2B)(c) can reasonably be interpreted to mean that NIHRC may act where it is clear that there have been and will be victims of the implementation of the provisions of the 1861 and 1945 Acts, which is satisfied in this case [195 and 208]. If NIHRC is unable to bring proceedings to protect the rights of women in the three situations in this case, they will be deprived of an effective remedy under Art 13 ECHR [199]. Article 8 The courts decision on standing means that there is no possibility of making a declaration of incompatibility under s.4 HRA 1998. However, a majority of the court (Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) considers that the current law in Northern Ireland on abortion is disproportionate and incompatible with Art 8 insofar as it prohibits abortion in cases of (a) fatal (as distinct from serious) foetal abnormality (b) pregnancy as a result of rape and (c) pregnancy as a result of incest. If an individual victim did return to court in relation to the present law, a formal declaration of incompatibility would in all likelihood be made. Lady Hale agrees with the reasons provided by Lord Mance and Lord Kerr and writes separately only on a few points. Lady Black joins the majority in relation to (a) but not in relation to (b) and (c). The majority on this issue starts from the position that the current law is an interference with the right of pregnant women and girls to respect for their private lives, guaranteed by Art 8(1). The question is whether the Northern Ireland abortion law is justified under Art 8(2) [9, 104, 263 and 265]. The majority concludes that it is not. Lord Mance and Lord Kerr (with whom Lord Wilson agrees) hold that the general clarity of the existing law on abortion was not the focus of the present appeal. Lord Mance holds that it is clear that all the categories in issue are prohibited under the 1861 and 1945 Acts [81, 105 and 269]. Lady Hale considers that it is no more uncertain than other areas of law which rely upon the application of particular concepts to particular facts [20]. All of the majority accept that the current law pursues a legitimate aim: the moral interest in protecting the life, health and welfare of the unborn child [21, 105 and 278]. Lady Hale highlights that the community also has an interest in protecting the life, health and welfare of the pregnant woman [21]. It is accepted that the unborn are not right holders under Art 2 ECHR and do not have a right to life in domestic law or in Northern Ireland [21, 24, 94 and 305 306]. The law as it currently stands already permits abortion to protect not only the life of the pregnant woman but also her mental health from serious long term injury [24 and 106 108]. The majority refer to the opinion polls produced by NIHRC demonstrating strong public support for changes in the law [24, 110 and 322]. Lord Mance accepts that views elicited by opinion polls cannot prevail over the decision to date by the Northern Ireland Assembly which is to maintain the existing policy and law [111]. However, Lady Hale and Lord Kerr (with whom Lord Wilson agrees) state that this evidence cannot be lightly dismissed when the argument is that profound moral views of the public are sufficient to outweigh the grave interference on the rights of pregnant women and a change in the law [24 and 325]. All of the majority however agree that the Working Group established by the Northern Irish Assembly demonstrates that the Assembly is not necessarily opposed to amending the law in the future but that any such solution has been precluded by the cessation of the Assemblys activities since January 2017 [112 and 228 229]. The majority holds that the banning of abortion in all the categories at issue is rationally connected to the legitimate aim [113 and 279]. The real issue on this appeal is whether the interference with womens Art 8 rights is necessary in a democratic society in that it strikes a fair balance between the rights of the pregnant woman and the interests of the foetus by maintaining the 1861 and 1925 Acts [21, 117 and 287]. The majority all refer to the institutional role of the UKSC in relation to the legislature. A distinction is drawn between the margin of appreciation applied by Strasbourg and considerations of institutional competence required in a domestic context [37 28, 115 and 289 295]. Lady Hale remarks that this is not a matter on which the domestic legislature enjoys a unique competence. Lady Hale, Lord Mance and Lord Kerr all highlight that Parliament, through s.4 HRA 1998, has expressly given the high courts power to rule on compatibility of legislation with the ECHR [39 and 292]. The majority on this issue also distinguishes the present case from R (Nicklinson) [2014] UKSC 38 in reaching a decision that it is institutionally appropriate for the Supreme Court to consider the compatibility of the existing law on abortion with the Convention rights. The Northern Irish Assembly is not about to actively consider the issue of abortion there is no assurance as to when it will resume its activity [40, 117 and 299]. There is no question of a balance being struck between the interests of two different living persons as in Nicklinson. The unborn foetus is not in law a person, although its potential must be respected [119]. Nicklinson was also decided against a background where the attitude maintained by the UK Parliament reflected a similar attitude across almost the whole of Europe. Northern Ireland, in contrast, is almost alone in the strictness of its current law. The close ties between the different parts and peoples of the UK make it appropriate to examine the justification for differences in this area with care [120]. Lord Kerr also distinguishes the present case from Nicklinson on the basis that the present incompatibility is not difficult to identify or cure. A simple amendment to the 1861 and 1945 Acts permitting termination of pregnancy in the three situations would achieve that aim [298]. Fatal foetal abnormality: the majority and Lady Black conclude that there is no community interest in obliging the woman to carry a pregnancy to term where the foetus suffers from a fatal abnormality [28, 133, 326, 368 and 371]. Lord Mance remarks that the present law treats the pregnant woman as a vehicle and fails to attach any weight to her personal autonomy [125]. The present law also fails to achieve its objective in the case of those who may choose to travel for an abortion, merely imposing on them harrowing stress and inconvenience as well as expense, while it imposes severe and sometimes life time suffering on the most vulnerable who, because of lack of information, or support are forced to carry their pregnancy to term [27, 28 and 126]. Serious foetal abnormality: By contrast, it is not possible to impugn as disproportionate and incompatible with Art 8 legislation that prohibits abortion of a foetus diagnosed as likely to be seriously disabled. A disabled child should be treated as having equal worth in human terms as a non disabled child [31, 133 and 331]. Rape: the majority considers that the current law is disproportionate in cases of rape and that the rights of the pregnant woman should prevail over the community interest in the continuance of the pregnancy [27, 127 and 326]. Lord Mance mentions that NIHRC made it clear that its submissions on rape included offences against children under the age of 13 who could not give consent in law but that it had not focused on sexual offences (not described as rape) committed against girls aged 13 or more but under the age of 16 [44]. Lady Hale, however, considers that for the purposes of this case, it is unnecessary to distinguish between offences where the child is under 13 and offences where the child is under 16 where no offence is committed if the perpetrator reasonably believed she was over 16. It is presumed under the law of Northern Ireland that children under 16 are incapable of giving consent to sexual touching, including penetration of the vagina by a penis, irrespective of the perpetrators belief and there is no reason to exclude such pregnancies from this case [25]. Lord Mance considers that causing a woman to become pregnant and bear a child against her will is an invasion of the fundamental right to bodily integrity. Neither Lord Mance nor Lady Hale consider the possibility of travel for an abortion as a justification for the law but rather a factor demonstrating its disproportionality [27 and 127]. Incest: A blanket prohibition of abortion in cases of incest is not proportionate [27, 132 and 326]. Lord Mance (with whom Lady Hale agrees) points to the fact that the most typical cases of incest involve abusive relationships with young or younger female relatives. The agony of having to carry a child to birth and have a potential responsibility and lifelong relationship with the child thereafter against the mothers will cannot be justified [27 and 132]. Lord Reed (with whom Lord Lloyd Jones and Lady Black (on pregnancy resulting from rape and incest) agree) would not make a declaration of incompatibility under Art 8. They are not convinced that the three situations are, as abstract categories, materially different from those explored in the case of A, B and C v Ireland (2011) 53 EHRR 13. Women are free to travel to obtain abortions on the NHS in England and Scotland. They should be provided with advice about termination, by medical professionals in Northern Ireland, and should receive whatever care they may require there after the termination has been carried out [357 and 369]. The court has been provided with information about individual cases which, if established in individual applications, would almost certainly demonstrate violations of Art 8, due principally to shortcomings in the provision of medical advice and support. However, this does not warrant a bald declaration that the legislation as such is inherently incompatible with Art 8 [359]. The difficulty with the form of the present appeal is that it does not enable the court to examine the facts of individual cases [361 and 369]. Defining categories of pregnancy in which abortions should be permitted involves highly sensitive and contentious questions of moral judgment [362]. They are pre eminently matters to be settled by democratically elected and accountable institutions [362 and 369]. That democratic consideration has not been completed in Northern Ireland as a result in the breakdown of devolved government in January 2017. However, there is every reason to fear that violations of the ECHR will occur if the arrangements in place in Northern Ireland remain as they are [363 and 370]. Article 3 A majority of the court (Lord Mance, Lord Reed, Lady Black and Lord Lloyd Jones) would not have made a declaration that the law of Northern Ireland is incompatible with Art 3 ECHR [34 and 100]. Art 3 is an absolute right. The treatment complained of has to reach a minimum level of severity in order to contravene it [95]. The majority all agree that there will be some women in the three situations in this case, whose suffering on being denied an abortion in Northern Ireland will reach the threshold of severity required to label the treatment inhuman or degrading. But Lord Mance notes that it cannot be said that legally significant number of women denied an abortion in such circumstances will suffer so severely that her Art 3 rights have been violated [82]. Whether there has been any violation also depends on the facts of the individual case [34, 95, 103, 354 and 367]. Lord Mance (with whom Lord Reed, Lady Black and Lord Lloyd Jones agree) considers that the cases relied on by NIHRC to demonstrate breach of Art 3: RR v Poland (2011) 53 EHRR 31, P & S v Poland [2012] 129 BMLR 120 and Tysiac v Poland (2007) 45 EHRR 412 were decided on an assessment of the actual circumstances of the conduct relied on. They were not decided on the basis of a risk that the State might commit a breach of Art 3 [100, 353 and 367]. Lord Mance (with whom Lord Reed, Lord Lloyd Jones and Lady Black agree) notes that women are able to travel elsewhere to obtain an abortion. Although this can be a distressing and expensive experience, it does not generally or necessarily give rise to distress of such severity so as to infringe Art 3: see A, B and C [100, 353 and 367]. A minority (Lord Kerr with whom Lord Wilson agrees) would have made a declaration that the law of Northern Ireland is incompatible with Art 3 ECHR insofar as it prohibits abortion in the three categories of case presented [262]. Even though some mothers may not, there is a risk that some mothers who are denied an abortion in cases (a), (b) and (c) above will suffer profound psychological trauma which is sufficient to give rise to a violation of Art 3 [235]. The state owes individuals an obligation to protect them from the risk of a breach of Art 3 as well as a positive duty to provide appropriate healthcare treatment where the denial of that treatment would expose victims to ill treatment contrary to Art 3 [235]. The risk of women and girls being subject to ill treatment contrary to Art 3 is sufficient to trigger the states positive obligations. Travelling to England or Scotland to obtain an abortion does not avoid this. The fact of being required to do so is in itself sufficient to expose women and girls to the risk of inhuman and degrading treatment [238]. Lady Hale expresses sympathy with the view expressed by Lord Kerr (with whom Lord Wilson agrees) but does not consider it necessary to decide on incompatibility in relation to Art 3 in light of her decision on Art 8 [34].

These appeals concern whether the High Court of England and Wales has jurisdiction to hear claims to recover sums paid under a settlement agreement relating to the loss of an insured vessel. The parties dispute the interpretation of the Brussels Regulation Recast (Regulation (EU) 1215/2012) (the Regulation). Article 4 of the Regulation provides that defendants must be sued in the member state where they are domiciled. This is subject to article 7(2), which provides that, in matters relating to tort, delict or quasi delict, a defendant may be sued in the place where the relevant harmful event occurred. Article 7(2) is, in turn, subject to section 3 of the Regulation, which provides (in article 14) that, in matters relating to insurance, an insurer may only bring proceedings in the courts of the member state where the defendant is domiciled. Aspen Underwriting Ltd and others (the Insurers) insured the Atlantik Confidence (the Vessel) under an insurance policy (the Policy), which valued the Vessel at $22m. The Policy had an exclusive jurisdiction clause in favour of the courts of England and Wales. Credit Europe NV, a bank which is domiciled in the Netherlands (the Bank), funded the re financing of the Vessel. In exchange, the Bank took a mortgage of the Vessel and an assignment of the Policy. The assignment identified the Bank as the sole loss payee under the Policy. After the Vessel sank, the Bank (at the request of the Owners) issued a letter to the Insurers, authorising them to pay any claims relating to the loss of the Vessel to a nominated company, Willis Ltd (the Letter of Authority). For the next several months, the Insurers engaged in settlement discussions with the owners and managers of the Vessel (the Owners). The Bank was not involved in those discussions. Eventually, the Insurers concluded a settlement agreement with the Owners and made a payment of $22m to Willis Ltd. Three years later, in an action not involving the Insurers, the Admiralty Court held that the Owners had deliberately sunk the Vessel. Following this judgment, the Insurers began legal proceedings in the High Court against the Owners and the Bank, seeking to set aside the settlement agreement and recover the sums paid under it, either in restitution or as damages for alleged misrepresentations by the Owners and the Bank. The Bank challenged the jurisdiction of the High Court to hear the Insurers claims against it. In two first instance judgments, Mr Justice Teare held that the Bank was not bound by the exclusive jurisdiction clause in the Policy but nor could it rely on section 3 of the Regulation, since it was not the weaker party in its relations with the Insurers. He found that the High Court had jurisdiction to hear the damages claims under article 7(2) of the Regulation but not the restitution claims, since these were not matters relating to tort, delict or quasi delict. The Court of Appeal affirmed Teare Js decisions. The Insurers and the Bank each appealed to the Supreme Court. The Supreme Court unanimously dismisses the Insurers appeal and allows the Banks appeal, declaring that the High Court does not have jurisdiction over any of the Insurers claims against the Bank. Lord Hodge gives the sole judgment with which the other Justices agree. The Supreme Court affirms the findings of Teare J and the Court of Appeal that the Bank is not bound by the exclusive jurisdiction clause in the Policy [23]. Under EU law, a jurisdiction agreement will only bind a party if there is actual consensus between the parties which is clearly and precisely demonstrated [24]. Although not a party to the Policy, EU law recognises that the Bank may be taken to have consented to the jurisdiction clause if, as a matter of national law, it became a successor to the Owners under the Policy [25]. As an equitable assignee, the Bank did not take on the Owners obligations under the Policy. However, nor was it entitled to assert its assigned rights in a way that was inconsistent with the terms of the Policy, including the jurisdiction clause [26 28]. In fact, the Bank had not asserted its rights under the Policy at all: it left the settlement negotiations to the Owners and its Letter of Authority merely facilitated that settlement [29]. Not being a party to the Policy, it is not required to submit to the jurisdiction of the English courts in an action brought by the Insurers [30]. The Supreme Court finds that the Insurers claims against the Bank are matters relating to insurance within the meaning of section 3 of the Regulation [41]. The Supreme Court notes that the title of section 3 is drafted in broader language than other sections of the Regulation, which refer to individual contracts [35]. It is also significant that the scheme of section 3 is concerned with the rights not only of parties to an insurance contract but also of beneficiaries and injured parties, who will typically be non parties [36]. The recitals to the Regulation do not operate to narrow the scope of section 3 [37]. Whereas EU case law indicates that articles derogating from the general rule in article 4 should be interpreted strictly, article 14 operates to reinforce article 4 and so need not be read narrowly [38]. Even if section 3 were to apply only to claims based on a breach of an individual insurance contract, the insurance fraud alleged by the Insurers would inevitably entail a breach of the Policy [40]. The Supreme Court holds that there is no weaker party exception to the protection of article 14 [43]. Article 14 protects certain categories of person because they are generally the weaker party in a commercial negotiation with an insurance company, not because of their individual characteristics [44]. Whilst recital (18) explains the policy behind section 3, it is the words of article 14 which have legal effect [45]. Article 14 refers to the policyholder, the insured and the beneficiary without further qualification and derogations from the jurisdictional rules in matters of insurance must be interpreted strictly [46, 57]. In any case, it would undermine legal certainty if the applicability of section 3 were to depend on a case by case analysis of the relative strength or weakness of contracting parties. This is why the Court of Justice of the European Union (CJEU) has treated everyone within the categories identified in article 14 as protected unless the Regulation explicitly provides otherwise [47 49]. The CJEU only has regard to recital (18) in deciding whether to extend the protections of article 14 to persons who do not fall within the identified categories, not to decide whether a particular policyholder, insured or beneficiary is to be protected [50 56]. Further, in deciding whether to extend the protections of article 14 in this way, the CJEU seeks to uphold the general rule in article 4 [43]. As a result of these conclusions, it is not necessary for the Supreme Court to address whether the Insurers restitution claims are matters relating to tort, delict or quasi delict under article 7(2) [61].

Mr McCann suffers from a mental disorder and was detained in the State Hospital at Carstairs following his conviction for a number of offences. On 5 December 2011 the State Hospital Board for Scotland (the Board) implemented a comprehensive smoking ban in the State Hospital. A partial ban had previously been implemented allowing smoking in the grounds but this had created operational difficulties. The comprehensive ban prohibited a detained patient from smoking or possessing tobacco products in the State Hospital, including in its grounds, and from smoking on home visits. The ban also prohibited visitors from bringing tobacco products into the hospital. Procedures were established to search both patients and visitors for such products. Mr McCanns challenge relates only to (a) the ban on smoking in the grounds and on home visits, which, by creating a comprehensive ban, prevents detainees from smoking anywhere and (b) the ban on possession and powers of search and confiscation. Mr McCann challenges the legality of the comprehensive smoking ban on three grounds. First, he argues the decision to implement the smoking ban was unlawful as it did not adhere to the principles in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the 2003 Act) or comply with the requirements of the Mental Health (Safety and Security) (Scotland) Regulations 2005 (the 2005 Regulations). Section 1 of the 2003 Act contains a statement of principles for the discharge of functions under that Act, which include an obligation to minimise restrictions on the freedom of the patient. The 2005 Regulations were made under section 286 of the 2003 Act which is headed Safety and security in hospitals. The 2005 Regulations authorise the placing of restrictions on items that specified patients and their visitors may have in hospital and the removal from them of prohibited items. They require that the specified patient must be informed when any measure is to be applied to them and that records are kept of any searches. The Board contends that in deciding upon and implementing the smoking ban and measures to enforce that ban, it acted solely under its power of management in section 102(4) of the National Health Service (Scotland) Act 1978 (the 1978 Act). As such, it submits that it was not required to comply with the 2003 Act section 1 principles. Secondly, Mr McCann submits that the decision unjustifiably interfered with his right to respect for his private life under Article 8 of the European Convention on Human Rights (ECHR). Thirdly, he argues that the Board, by implementing the smoking ban, treated him in a discriminatory manner contrary to Article 14 ECHR when taken with Article 8 EHCR. He submits that the discriminatory treatment cannot be objectively justified when compared with (i) people in prison, (ii) patients in other hospitals (whether detained or not) or (iii) members of the public at liberty. The Supreme Court unanimously allows Mr McCanns appeal but only to the extent that the part of the impugned decision, which relates to the prohibition from possession of tobacco products and the powers of search and confiscation, does not comply with the 2003 Act and 2005 Regulations. Lord Hodge gives the lead judgment, with which the other Justices agree. Mental Health (Care and Treatment) (Scotland) Act 2003 The Board is correct that the comprehensive ban, viewed on its own, involves the exercise of a power of management under the 1978 Act. However, the supporting prohibition from possession of tobacco products and the power to search for and confiscate such products fall within the scope of the 2003 Act and the 2005 Regulations [34]. The 2005 Regulations do not set limits on the items which may be prohibited or searched for. The focus of section 286 and the 2005 Regulations is on the regulation of activities which impinge on the autonomy of individuals [38]. The devising of such policies which concern the detained patients autonomy and the carrying out of such measures have thus become functions under the 2003 Act and the section 1 principles apply to such measures in so far as they are relevant [38 39]. One relevant principle is the obligation in section 1(4) to discharge the function in a manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances [39]. In instituting the comprehensive smoking ban there was no consideration of this principle by the Board nor was there compliance with the obligations to inform and record in the 2005 Regulations [40]. As a result, the prohibition on having tobacco products and the related powers to search and confiscate are illegal and fall to be annulled [41]. Article 8 Mr McCanns Article 8 right to privacy has been infringed [43]. The smoking ban is within the ambit of Article 8 [57]. Where therapeutic detention has severely curtailed a detained patients private space, there is a need to protect this residual autonomy by requiring further intrusion into his private life to be justified [55]. The decision is not in accordance with law as the Board failed to address the requirements of section 1(4) of the 2003 Act and the 2005 Regulations in relation to the part of the ban relating to the prohibition of possession, searches and confiscation of tobacco products [58]. But for this illegality, the decision would not have been contrary to Article 8 [62]. The smoking ban pursued the legitimate aim of the protection of public health and was rationally connected to that aim [59]. Faced with the difficulties of implementing a partial ban, the Board did not act disproportionately in imposing the comprehensive smoking ban when it did [60]. Article 14 The Article 14 challenge fails. The differences in treatment between detained patients in the State Hospital and patients in other NHS facilities or prisoners are a matter of timing rather than policy as the Scottish Government has committed to extending the ban. The earlier implementation of the comprehensive smoking ban in the State Hospital is due to the difficulties faced by the State Hospital in operating the partial ban. It is therefore unnecessary to consider the differences between the circumstances of Mr McCann and those of the other groups [64]. Further, there is no unjustified discrimination when detained patients are compared with the general public at liberty as the circumstances of members of the public are radically different [65].

This case concerns the statutory rights to appeal immigration decisions under the Nationality, Immigration and Asylum Act 2002 (NIAA 2002). The relevant provisions have now been repealed, however they were relevant to the appellant because of the timing of his claim. The main right of appeal under NIAA 2002 in relation to immigration decisions was s82. Whilst this did not cover asylum claims, where an appeal existed under s82 then the claimant in question was entitled by s84(1)(g) to raise the argument that his removal would put the UK in breach of its obligations under the Refugee Convention. By this route, a right of appeal against refusal of asylum effectively existed in NIAA 2002 if there was an immigration decision to appeal under s82. Generally there was such a decision to appeal under but not in all circumstances. For example, where the asylum was refused but leave to remain was granted. In this context, s83 provided a specific, additional right of appeal against refusal of asylum where the asylum claim was rejected but the applicant had, per s83(1)(b), been granted leave to remain or enter the [UK] for a period exceeding one year (or for periods exceeding one year in aggregate). The appellant is a citizen of Uganda. On 27 September 2010, he was granted limited leave to remain in the United Kingdom as a student until 30 April 2012. Before that time had expired, on 7 February 2012, he applied for asylum on the grounds that the Ugandan governments treatment of him might be affected because of his familys alleged political activities in Uganda. The Secretary of State rejected his claim and did not vary his limited leave to remain. The question was whether under s83 it was necessary for the relevant grant of leave to remain to be contemporaneous with or to post date the refusal of the asylum claim in order for the appellant to benefit from the right of appeal. After being unsuccessful before the Court of Appeal the appellant appealed to the Supreme Court. The Supreme Court unanimously dismisses the appellants appeal. Lord Hughes gives the only judgment, with which the other Justices agree. Lord Hughes identifies four possible readings of s83: [10] 1) any grant(s) of leave to remain totalling more than 12 months bring the claimant within the section, whenever they occurred and whether or not they had expired before the asylum claim was made and determined; 2) grant(s) of leave to remain totalling more than 12 months bring the claimant within the section providing such leave is still current at the time of the determination of the asylum claim; 3) grant(s) of leave to remain bring the claimant within the section providing that such leave totalled more than 12 months counting from the date of refusal or later grant, and whether the grant(s) were made before or after refusal. 4) grant(s) of leave to remain totalling more than 12 months bring the claimant within the section if but only if they (and all of them if more than one) are either contemporaneous with or post date the determination of the asylum claim; this was the Secretary of States primary case and was adopted by the Upper Tribunal and the Court of Appeal. Lord Hughes notes that whilst s83 can be read as a matter of language a number of ways, some are more natural than others. In particular, s83 appears to focus on the time when the asylum claim has been rejected, for it is concerned with appeals against this decision, and then to ask whether, when a claimant wishes to appeal, the condition in subsection 1(b) is met. [14] The purpose of s83 is tolerably clear. It is to provide an additional and more targeted right of appeal beyond the ordinary one created by s82. It is to provide a vehicle for the determination by the tribunal of refugee status, when that status is asserted but rejected by the Secretary of State, in those cases where no such vehicle otherwise exists, nor will exist within a reasonable time. s83 was designed to create an extra right of appeal for those who have a longer period of leave to remain and who would otherwise have no s82 vehicle which they could use. The intention was that those in this situation should not be deprived of the right to challenge the refusal of their asylum claim where that refusal is not accompanied by a decision to remove them. [21] Once this is understood, it is clear that the construction which most neatly serves the purpose of the statute is interpretation 3, i.e. that grants of leave to remain bring the claimant within the section providing that such leave totalled more than 12 months counting from the date of refusal or later grant, and whether the grants were made before or after refusal. [22]

This appeal from an Extra Division of the Court of Session raises two issues of contractual construction in documents relating to the letting of commercial premises at 1 and 3 South Wardpark Place, Wardpark South Industrial Estate, Cumbernauld, Scotland. The appellant (Batley) was the mid landlord of sub let premises and the respondent (the Council) was the sub tenant. Batley and the Council disagreed on whether the Council was obliged to remove its alterations and reinstate the sub let premises on the expiry of the sub lease when the request to do so was made orally by Batleys surveyor and not put in writing in a schedule of dilapidations or otherwise before the sub lease expired. The two issues were a) whether under a minute of agreement that authorised alterations to the sub let premises Batley was obliged to give written notification that it required the Council to remove the alterations and reinstate the sublet premises; and b) whether under the repairing obligation in the head lease, which was applied to the sub lease, Batley had to give a written notification that it required the Council to carry out the repairs before the expiry of the sub lease. The Extra Division dismissed Batleys claim on the basis that it was irrelevant, meaning that Batleys pleadings did not, on the face of them, set out a claim that was properly founded in law. As the repairing obligation in the head lease was in terms commonly used in commercial leases, this appeal raises an issue of law of general importance. The Supreme Court unanimously allows the appeal. It also allows a proof before answer of the appellants case. This means that the question whether the appellants have made out a good case in law will be reserved pending an evidential hearing in the Court of Session. Lord Hodge gave a judgment with which the rest of the Justices agree. The Court first addressed basis (b) of Batleys claim. Batleys pleadings on this issue were sufficiently detailed to give notice of both the contractual basis of the claim and also, by reference to the revised schedule, the works which Batley asserts were required at the expiry of the sub lease to meet the obligation to repair. [11] This basis was also sound in law. The Extra Division, in accepting the Councils submission, appeared to have imposed on the landlord a hurdle that was not there. The head lease obliged the tenant to repair, maintain, and where necessary reinstate the premises in order to keep them in a tenantable condition at all times during the period of the lease. That obligation to keep premises in (and put them into) a good condition was a continuing obligation of a sort that, it was well established, did not require any notice from the landlord to activate it. [14] Basis (b) of Batleys claim was therefore relevant to go to proof before answer. Issues of fact, such as whether Batley has carried out the needed repairs, and, if it has, the legal consequences to its claim (which is based on estimated costs) could be addressed at that hearing. [15] Basis (a) depended on whether Batley had to give written notice before the expiry of the sub lease of that it required the Council to remove the licensed works. It was not straightforward, as the document could bear more than one interpretation, but the Court concluded that no written notice was required. [16] The words had to be construed in the context of the Minute of Agreement as a whole and having regard to the admissible background knowledge, which is often called the factual matrix. [18] Starting with the words of the Minute of Agreement, the Court noted that the disputed words in clause 2.5 (if so required by the Mid Landlord) contrasted with two provisions in the Minute of Agreement that expressly required written forms. So the parties appeared to state expressly in this document when a communication had to be in writing and when less formal communication was permitted. [19] Further, contrary to the Councils submission, no requirement for written notice was incorporated into the Minute of Agreement. That submission depended on a convoluted argument that clause 5 of the Minute of Agreement subjected clause 2.5 to the requirement of writing (in clause 5.8 of the head lease) because the sub tenants obligation in that clause was conditional upon the mid landlord requiring the sub tenant to remove the licensed works. The Court strongly preferred the simpler construction of clause 5 of the Minute of Agreement. [21] It was also relevant to see the Minute of Agreement in its context as a document required by clause 5.7 of the sub lease: the mid landlords consent to the sub tenants works. The Minute of Agreement existed in the context of the head lease and the sub lease, both of which were part of the factual matrix. But it was a separate contract and the starting point was the words it contained. Those words pointed towards the conclusion that writing was not required for communications in all circumstances. The fact that the communications in the head lease and the sub lease that fell within the scope of clause 5.8 of the former had to be in writing did not overturn that conclusion. [23] Moreover, this made business common sense. First, the commercial purpose of the deemed incorporation of the obligations into the sub lease was stated in clause 5 to be to give the mid landlord the power of irritancy. Secondly, the context was important; the landlord would require the removal of the licensed works only at the end of the sub lease, when the sub tenant would have to address its separate and continuing obligation to keep the property in repair. An indication that the mid landlord wanted the licensed works removed required no formality. A sub tenant that conscientiously addressed its mind to its obligations under clause 5.1 of the sub lease to keep the sub let premises in repair could readily respond to an intimation by the mid landlord or its surveyor that it include the removal of the licensed works in the works it carried out at the end of the sub lease. If in doubt, it could ask the mid landlord. The benefits of certainty, which the Council emphasized, did not make its interpretation of the Minute the only commercially sensible construction. [24] The Court was therefore satisfied that the Minute of Agreement did not require the mid landlord to give written notice of its requirement that the licensed works be removed at the end of the sub lease. Batley averred that it instructed a named firm of chartered surveyors to produce a schedule of dilapidations and that on 22 December 2008 a named surveyor from that firm informed a named official of the Council that the mid landlord would be requiring the reinstatement of the premises to their original condition. Those averments met the well known test of relevancy in Jamieson v Jamieson 1952 SC (HL) 44, per Lord Normand at 4950. The appellant was not to plead evidence; and, as the Council could not only enquire of its official but also take steps to recover from Batley and the surveyor any documents relevant to those averments, there was no unfair lack of notice of the case Batley sought to prove. [25]

This appeal concerns the permissibility of a procedure whereby a claimant in employment tribunal proceedings may be excluded along with his representatives from certain aspects of those proceedings on grounds of national security. In particular the question arises as to whether such a procedure, known as a closed material procedure, is compatible with European Union law and the European Convention on Human Rights. Mr Tariq was employed as an immigration officer with the Home Office until 2006 when he was suspended and his security clearance withdrawn. The background for these decisions was the arrest of Mr Tariqs brother and cousin during an investigation into a suspected plot to mount a terrorist attack on transatlantic flights. Mr Tariqs cousin was convicted in 2008 of various offences in relation to that plot. No information suggested that Mr Tariq had himself been involved in any terrorism plot. Mr Tariq commenced proceedings in the Employment Tribunal claiming direct and indirect discrimination on grounds of race and religion. He alleged that the Home Office had relied on stereotypical assumptions about him, Muslims and individuals of Pakistani origin such as susceptibility to undue influence and that the Home Office had indirectly discriminatory policies and procedures. The Home Office denied this and stated that its decisions were based on Mr Tariqs association with individuals suspected of involvement in terrorist activities and the risk of their attempting to exert influence on him to abuse his position. Section 10(6) of the Employment Tribunals Act 1996 provides that the Secretary of State may make regulations that enable a tribunal to adopt a closed material procedure if it considers this expedient in the interests of national security. Rule 54(2) of Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (the Regulations) provides for the adoption of a closed material procedure if the tribunal so orders. Schedule 2 provides for the use of special advocates, whose role is to represent a claimants interests so far as possible in relation to the aspects closed to him and his representatives. The Employment Tribunal made an order for a closed material procedure, directing that Mr Tariq and his representatives should be excluded from the proceedings when closed evidence or documents were being considered. Mr Tariq appealed the order to the Employment Appeal Tribunal. The appeal was dismissed and a further appeal was dismissed by the Court of Appeal. The Court of Appeal, however, declared that Article 6 of the European Convention on Human Rights required Mr Tariq to be provided with the allegations being made against him in sufficient detail to enable him to give instructions to his legal team so that those allegations can be challenged effectively. This requirement is known as gisting. The Home Office appealed to the Supreme Court against the declaration and Mr Tariq cross appealed against the conclusion that a closed material procedure was permissible. The Supreme Court by a majority of 8 1 allows the Home Offices appeal and sets aside the declaration made by the Court of Appeal requiring the provision of a gist. Lord Kerr dissents. The Supreme Court unanimously dismisses Mr Tariqs cross appeal, holding that a closed material procedure is compatible with Article 6 of the European Convention on Human Rights and EU Law. Mr Tariqs Cross Appeal The issue in the cross appeal was whether the provisions in the Regulations providing for a closed material procedure were contrary to EU law or the European Convention on Human Rights. It is a basic principle of EU law that national law should provide effective legal protection of EU law rights. Those rights include the right not to be discriminated against on grounds of race or religion. As to whether the closed material procedure provided effective legal protection, the case law of the European Court of Justice is clear that EU law will look for guidance on the subject in the case law of the European Court of Human Rights. That Court has established in a line of cases culminating in Kennedy v UK that the demands of national security may necessitate a system for determining complaints under which a claimant is, for reasons of national security, unable to know the secret material by reference to which his complaint is determined. The tests are whether the system is necessary and whether it contains sufficient safeguards. On the facts, both were satisfied. The system was necessary because security vetting is a highly sensitive area in which integrity of sources of information and the means of obtaining it must be protected. The alternatives of the Home Office routinely having to pay unmeritorious claims or the courts refusing to hear claims at all are not possibilities that the law should readily contemplate. The rule of law must, so far as possible, stand for the objective resolution of civil disputes on their merits by a court which has before it material enabling it to do so. The system contained sufficient safeguards in the form of special advocates, who can usefully protect the claimants interests. For these reasons the use of the closed material procedure in this case was lawful and the cross appeal must be dismissed. The Home Offices Appeal The question in the appeal was whether there is an absolute requirement that a claimant should be able to see the allegations against him in sufficient detail to give instructions to his legal team to enable the allegations to be challenged effectively. Mr Tariq argued that the European Convention on Human Rights contained such a principle. The Supreme Court, however, held that the line of cases culminating in Kennedy v UK recognised that there was no absolute requirement. Article 6 of the European Convention on Human Rights provides the right to a fair trial. The European Court of Human Rights has held that where the liberty of the subject is involved, Article 6 requires the provision of a gist as described by the Court of Appeal. In cases such as the present not involving the liberty of the subject, however, the question is whether the use of the closed material procedure will impair the very essence of the right to a fair trial. That cannot be said to be so in this case, as Mr Tariqs claim will be determined by an independent and impartial tribunal and the disadvantages that the procedure gives rise to will as far as possible be minimised. The appeal was therefore allowed. Lord Kerr dissented. He held, first, that the withholding of information from a claimant which is then deployed to defeat his claim is a breach of his fundamental common law right to a fair trial. The removal of that right can only be achieved by legislation framed in unambiguous language. Secondly, such withholding also constitutes a breach of a claimants Article 6 right to a fair trial. Kennedy v UK was an anomaly. Lord Kerr would therefore have dismissed the appeal.

This appeal is concerned with distributions made and to be made by the administrators of Kaupthing Singer & Friedlander Ltd (KSF), a bank. In particular, the appeal turns on what function, if any, the equitable rule in Cherry v Boultbee has to perform in the operation of the rule against double proof as it applies in situations involving guarantees and other sureties [9]. Singer & Friedlander Funding plc (Funding) is a wholly owned subsidiary of KSF and its sole function was to raise funds for use by KSF and other group companies. In 2005 Funding issued 250m floating rate notes constituted under a trust between KSF, Funding and HSBC Trustee (CI) Ltd (the Trustee). Under the trust KSF guaranteed payment of the principal and interest on the notes [2]. The net proceeds of the notes were advanced by Funding to KSF by way of an unsecured loan [3]. Both KSF and Funding went into administration in October 2008. When KSF went into administration on 8 October 2008 it owed Funding approximately 242.6m pursuant to the loan. When Funding went into administration on 15 October 2008 approximately 240.3m was prospectively owing on the notes and on 23 March 2009 the Trustee gave notice of an event of default upon which the notes became immediately due and payable and the obligations of Funding (as principal debtor) and KSF (as guarantor) came into immediate effect [3]. On 28 April 2009, the Trustee submitted to each of Fundings and KSFs administrators proofs of debt in respect of the loan notes in the sum of approximately 248.1m. On 8 May 2009, Funding submitted a proof in respect of its loan to KSF in the sum of approximately 242.6m [4]. On 20 May 2009, KSFs administrators gave notice of their intention to make distributions in the administration, including to ordinary unsecured creditors. KSF has numerous creditors who have already received dividends amounting to 58p in the pound [5]. KSFs administrators applied to the Chancery Division for directions. At the hearing the Trustee recognised that the Chancellor was bound by the Court of Appeal decision in In re SSSL Realisations (2002) Ltd [2006] Ch 610 (SSSL) but the Trustee made clear its intention to argue that SSSL was wrongly decided if granted permission to appeal. Accordingly, the Chancellor declared that the rule in Cherry v Boultbee was not excluded and directed that the administrators of KSF might rely on it unless and until KSFs right of indemnity (as a surety) had been satisfied in full. This is a leapfrog appeal direct from the Chancellor, who certified that there was a point of law of general public importance on which he was bound by a fully considered judgment of the Court of Appeal [6] [7]. The Supreme Court unanimously allows the appeal. The rule in Cherry v Boultbee is excluded in this case by the rule against double proof. Accordingly the Trustee must be paid in full before there can be any proof against Funding as the principle debtor by KSF as guarantor. Lord Walker gives the leading judgment with which Lady Hale, Lord Clarke and Lord Collins agree. Lord Hope delivers a short judgment agreeing with Lord Walkers reasons and the result. The rule against double proof is a rule to prevent the double proof of what is in substance the same debt being made against the same estate, leading to the payment of a double dividend out of one estate. In the simplest case of suretyship there is a triangle of rights and liabilities between the principal debtor (PD), the surety (S) and the creditor (C). PD has the primary obligation to C and a secondary obligation to indemnify S if and so far as S discharges PDs liability. But if PD is insolvent S may not enforce that right in competition with C. S has an obligation to C to answer for PDs liability and the secondary right of obtaining an indemnity from PD. C can proceed against either or both of PD and section If both PD and S are in insolvent liquidation, C can prove against each for 100p in the pound but may not recover more than 100p in the pound in all [11]. The rule protects other creditors of PD against unfair treatment by an arrangement under which there are multiple creditors in respect of the same debt. The effect is that so long as C has not been paid in full, S may not compete with C either directly by proving against PD for an indemnity, or indirectly by setting off his right to an indemnity against any separate debt owed by S to PD. The rule in Cherry v Boultbee is a technique of netting off reciprocal monetary obligations, even where there is no room for legal set off [9]. A person who owes an estate money, that is, who is bound to increase the general mass of the estate by a contribution of his own, cannot claim a share given to him out of that mass estate without first making the contribution that completes it [13]. In SSSL, the Court of Appeal considered that there are good reasons why the rule against double proof should not have the same effect on the equitable rule in Cherry v Boultbee as it does on statutory set off. The Court of Appeal considered that the contrary view involved three misunderstandings. Lord Walker finds much of the reasoning of the Court of Appeal in SSSL difficult to follow [49]. For example, the Court of Appeals suggestion that in a double insolvency the rule in Cherry v Boultbee and the rule against double proof can and should both apply, as this would strike a fair balance between the competing interests of creditors, would lead to many doubts and difficulties [51] [52]. The equitable rule in Cherry v Boultbee may be said to fill the gap left by disapplication of set off, but it does not work in opposition to it. It produces a similar netting off effect except where some cogent principle of law requires one claim to be given strict priority to another. The rule against double proof is one such principle. It would be technical, artificial and wrong to treat the rule against double proof as trumping set off but as not trumping the rule in Cherry v Boultbee [53].

These appeals concern the obligations of insurance companies under various contracts of employers liability (EL) insurance. In particular, the appeals concern the scope of the insurers obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos. Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later. The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendants negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employees mesothelioma was caused by exposure to asbestos during a particular policy year. At first instance Burton J held that the policies should all be interpreted as having a causation wording. He therefore held that the liability trigger under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed. A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease contracted during the relevant insurance period); however they concluded that other policies (particularly those covering disease sustained during the insurance period) responded only on an occurrence or manifestation basis. These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma sustained or contracted at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employees body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an employee sustained or contracted mesothelioma during a particular policy period? The Supreme Court dismisses the insurers appeal by a 4 1 majority; Lord Phillips dissenting on the second issue. Lord Mance gives the main judgment. To resolve the meaning of the EL policies it is necessary to avoid over concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more generally [19]. Several features point the way to the correct construction. First, the wordings of the policies on their face require the course of employment to be contemporaneous with the sustaining of the injury [20]. Second, the wordings demonstrate a close link between the actual employment undertaken during each period and the premium agreed by the parties for the risks undertaken by the insurers in respect of that period. Third, on the insurers case there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to disease or injury in another later period [24]. Fourth, on the insurers case employers would be vulnerable to any decision by the insurers not to renew the policy. A decision not to renew might arise from the employers complying with their duty to disclose past negligence upon any renewal. Employers who discovered that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease would have such a duty. The insurers could then simply refuse any renewal or further cover [25]. Fifth, the way most of the policies deal with extra territorial issues throws doubt on any suggestion that the wordings are so carefully chosen that a court should stick literally to whatever might be perceived as their natural meaning [28]. Section 1 of the Employers Liability Compulsory Insurance Act 1969 also points the way to the correct interpretation. This states that every employer shall insure, and maintain insuranceagainst liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment. In order to give proper effect to the protective purpose of that legislation, the Act requires insurance on a causation basis [47]. There is no difficulty in treating the word contracted as looking to the causation of a disease, rather than its development or manifestation. The word contracted used in conjunction with disease looks to the initiating or causative factor of the disease [49]. While the word sustained may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been sustained by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later [50]. In relation to the second issue, the question is whether the EL policies cover employers liability for mesothelioma arising under the special rule in Fairchild/Barker [71]. Under that rule the law accepts a weak or broad causal link between the employers negligence and the employees mesothelioma. When construing the EL policies the concept of a disease being caused during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule [74]. The purpose of the EL policies was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies [88]. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurers obligation to indemnify the employer [74]. Lord Phillips dissents on the second issue. The special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. This conclusion is not affected by section 3 of the Compensation Act 2009, which did not alter the jurisprudential basis of the Fairchild/Barker approach [132] [133].

These appeals concern refusals of leave to remain. Mr Patel and his wife, Mrs Patel (the Patels), arrived from India in the UK on 24 March 2009. Mr Patel had been granted leave to enter as a working holiday maker until 6 March 2011, and Mrs Patel had been granted leave as his dependant wife. Their only child was born here in 2010. On 26 February 2011, the Patels applied for further leave to remain, relying on article 8 (right to respect for family and private life) of the European Convention on Human Rights (the Convention), and rule 395C of the Immigration Rules (the rules). Their application was refused by the Secretary of State on 30 March 2011. That refusal was neither combined with, nor followed by, a decision to remove the family from the UK. The Patels argued that the Secretary of States failure to make a removal decision at the same time as, or shortly after, the decision to refuse leave to remain was unlawful. This argument was unsuccessful in both the Upper Tribunal and the Court of Appeal. Mr Alam, a Bangladeshi citizen, entered the UK on 26 August 2007 as a Tier 4 student with leave to remain until 12 April 2011. On 1 April 2011 he applied for leave to remain to continue his studies, and on 20 April 2011 the Secretary of State refused his application on the basis that he had not produced the required documentation. The bank statements submitted with his application were more than a month old and therefore did not show the necessary level of funds for a consecutive period ending no more than one month before the application. Mr Alam produced the appropriate bank statements by the First tier tribunal hearing, at which it was held that, whilst this new material was excluded from consideration by section 85A of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act, which had come into effect between the date of his appeal and the date of his hearing), this material could be taken into account in the appeal under article 8 of the Convention. The tribunal concluded that, since Mr Alam met the requirements of the rules, it would be disproportionate to refuse his application. The Upper Tribunal reversed this decision, holding that Mr Alams article 8 rights were not sufficiently strong to make his removal disproportionate. Mr Anwar, a Pakistani citizen, entered the UK on 26 February 2010 with leave to remain as a student until 1 April 2011. He applied to extend his leave as a Tier 4 student to enable him to complete his course. This application was supported by a Confirmation of Acceptance for Studies (CAS). On 10 May 2011 the Secretary of State refused the application because it had not included a document referred to in the CAS. On his appeal to the First tier Tribunal Mr Anwar produced the relevant document. The First tier Tribunal allowed his appeal, but this decision was set aside by the Upper Tribunal. Although there was a reference to the Convention in the grounds of appeal to the First tier Tribunal, no separate appeal on human rights grounds was pursued at the hearing before either tribunal. The Court of Appeal heard the appeals of Mr Alam and Mr Anwar together and dismissed them both. The Supreme Court unanimously dismisses all three appeals. Lord Carnwath, with whom the rest of the Court agrees, gives the majority judgment. In the Patel appeal the Court holds that the Secretary of State was under no duty to issue removal directions at the time of the decision to refuse leave to remain, and that the actual decision was not invalidated by her failure to do so. In the Alam and Anwar appeals, although the First tier tribunal was obliged under section 120 of the 2002 Act to consider the new evidence filed, this evidence did not significantly improve their respective cases under article 8 of the Convention. The sole issue in the Patel appeal relates to the segregation of the decision to refuse leave to remain from the decision to direct removal. The Patels argued, relying on the Court of Appeal decisions in Mirza [2011] Imm AR 484 and Sapkota [2012] Imm AR 254, that the failure to issue such a direction was not only unlawful in itself, but also undermined the validity of the previous decision to refuse leave to remain [25 26]. The Court agrees with the Court of Appeals reasons for not following the decisions in Mirza and Sapkota. Neither section 10 of the 1999 Immigration and Asylum Act nor section 47 of the Immigration, Asylum and Nationality Act 2006, which define the Secretary of States powers of removal, can be read as imposing an obligation to make a direction in any particular case, still less as providing any link between failure to do so and the validity of a previous immigration decision [27]. The Secretary of State was under no duty in the Patels case to issue removal directions at the time of the decision to refuse leave to remain, and the actual decision was not invalidated by failure to do so. Insofar as the decisions of the Court of Appeal in Mirza and Sapkota indicate the contrary, they were wrongly decided [30]. The Alam and Anwar appeals raise the issue of whether the statements and evidence filed by Mr Alam and Mr Anwar to the First tier Tribunal amounted to additional grounds under section 120 of the 2002 Act, which the First tier Tribunal was obliged to consider and determine notwithstanding the bar in section 85A of that Act [10]. Whether the evidence before the tribunal in support of a putative appeal against the refusal of leave to remain can be taken on human rights grounds depends on two propositions: that the tribunal was obliged to consider the new evidence in that context, and secondly, that, if it had done so, the evidence that the rules could have been complied with would significantly improve the human rights case under article 8 [33]. In Mr Anwars case no separate human rights grounds were advanced on his behalf before either tribunal and so the issue as to whether the tribunal would have been obliged to consider them, and if so to what effect, does not arise [58]. On the first proposition, the Court holds (agreeing with the majority in AS(Afghanistan) v Secretary of State [2011] 1 WLR 385) that section 85(2) of the 2002 Act imposes a duty on the tribunal to consider any potential ground of appeal raised in response to a section 120 notice, even if it does not directly relate to the issues considered by the Secretary of State in the original decision [34 44]. On the second proposition, in Mr Alams case the human rights case was considered but failed before the Upper Tribunal. Some weight was given to the circumstances in which he lost his ability to rely on the new evidence, but against this there was only the time he had spent in this country as a student under the rules. It would be surprising if that status, derived entirely from the rules, was sufficient in itself to add weight to a case for favourable treatment outside the rules. The Court holds that there was no error in the Upper Tribunals approach [59].

The appellant, Ms Wyatt, and the respondent, Mr Vince, were married on 18 December 1981 [9]. They had a son, and Mr Vince also treated Ms Wyatts daughter from a previous relationship as a child of the family. They separated in 1984 [10]. For around 8 years after that, Mr Vince pursued a new age travelling lifestyle [11]. Ms Wyatt brought up the children in straitened circumstances, and Mr Vince was not in a position to make any substantial financial contribution for them [17]. The couple divorced and their decree absolute was granted on 26 October 1992. Since the court file has apparently been mislaid it is unknown what, if any, order was made at the time regarding financial provision, but the court has no reason to believe that Ms Wyatts claims were dismissed [14]. Ms Wyatt went on to have two more children. From the late 1990s Mr Vinces green energy business took off [18] and he became a multi millionaire [7]. In 2001, the couples son went to live with Mr Vince. Ms Wyatts financial circumstances continued to be, and remain, very modest [6]. In 2011 Ms Wyatt made an application in the divorce proceedings for financial provision in the form of a lump sum. She also applied for interim payments to fund her legal costs [2]. Mr Vince cross applied for Ms Wyatts substantive application to be struck out pursuant to Rule 4.4 of the Family Procedure Rules 2010 (the family rules), which provides: (1) the court may strike out a statement of case if it appears to the court a) that the statement of case discloses no reasonable grounds for bringing or defending the application; b) that the statement of case is an abuse of the courts process or is otherwise likely to obstruct the just disposal of the proceedings On 14 December 2012 a deputy High Court judge dismissed Mr Vinces strike out application and ordered him to make interim periodical payments in respect of legal costs directly to Ms Wyatts solicitors (the costs allowance order). Mr Vince appealed, successfully, to the Court of Appeal to have the deputy judges orders set aside. The Court of Appeal struck out Ms Wyatts application for financial provision and ordered her to repay part of the money received under the costs allowance order [2]. She appealed to the Supreme Court. The Supreme Court unanimously allows the appeal [29] and directs that the wifes application proceed in the Family Division of the High Court [36]. The deputy judges costs allowance order is restored and the Court of Appeals repayment order set aside [41]. Lord Wilson (with whom Lady Hale, Lord Clarke, Lord Hughes and Lord Hodge agree) gives the judgment. The court examines the jurisdiction under Rule 4.4 of the family rules to strike out an ex spouses application for a financial order [3]. It can be inferred that the references to no reasonable grounds and abuse of the courts process in Rule 4.4 are intended to bear the same meaning as the equivalently worded strike out provisions in the Civil Procedure Rules (the civil rules) [23]. The civil rules also confer upon the court a further power to give summary judgment on the basis that the claimant or defendant has no real prospect of success and there is no other compelling reason why the case should be disposed of at a trial [24]. However, there is no equivalent power of summary judgment in the family rules [25]. This omission is deliberate. When an ex spouse applies for a financial order, the court has a duty under section 25(1) of the Matrimonial Causes Act 1973 (the 1973 Act) to determine that application having regard to all the circumstances, including the eight matters set out in subsection (2); this assessment is not apt for summary determination. The Court of Appeal was therefore wrong to insinuate a test analogous to summary judgment into the family rules. Both limbs of Rule 4.4 should be construed without reference to real prospects of success. An application has no reasonable grounds for the purposes of Rule 4.4(1)(a) only if it is not legally recognisable, e.g. because there has already been a final determination of the proceedings or because the applicant has remarried. Neither should an application be viewed as an abuse of process falling within Rule 4.4(1)(b) solely on the basis that it has no real prospect of success [27]. Ms Wyatts application is legally recognisable and is not an abuse of process [28] and her appeal against the strike out therefore succeeds [29]. Lord Wilson identifies the issues in the application for the purpose of efficient future case management [29]. Ms Wyatt faces formidable difficulties in seeking to establish that a financial order should be made in her favour, including the short duration of the marriage and the long delay since then [30 31]. It is not clear whether she will be able to sustain her claim on the basis of need generated by her relationship with Mr Vince [33]. However, section 25(2)(f) of the 1973 Act obliges the court to have regard to the contributions which each of the parties has made to the welfare of the family, including any contribution by looking after the home or caring for the family. Ms Wyatt will no doubt rely on her much greater contribution to the upbringing of the couples children over many years [34], a factor which may justify a financial order for a comparatively modest sum [36]. The court also considers the costs allowance order [3]. Mr Vince argued that even if Ms Wyatts application were not to be struck out, the deputy judge had been wrong to make the costs allowance order [37]. The threshold test for making such an order was whether Ms Wyatt could reasonably secure legal services by any other means [39]. Given that it would be unreasonable to expect her solicitors to continue to act without payment until the determination of her substantive application (as contended by Mr Vince), this test was satisfied [40].

These appeals raise questions about the availability of cross border group relief and the method of quantifying such relief. These questions arise in respect of claims made by Marks and Spencer plc (M&S) for group relief in respect of losses sustained by two of its subsidiaries: Marks and Spencer (Deutschland) GmbH (MSD), which was resident in Germany; and Marks and Spencer (Belgium) NV (MSB), which was resident in Belgium. In March 2001, M&S decided to withdraw from its continental European activity. MSD ceased trading in August 2001 and was dissolved following liquidation on 14 December 2007. MSB ceased trading on 22 December 2001 and was dissolved following liquidation on 27 December 2007. Between 2000 and 2008, M&S made several group relief claims in relation to losses sustained by MSD and MSB. The basic contention underlying all these claims was that the provisions in United Kingdom legislation which restricted group relief claims to losses of UK resident companies and, after the Finance Act 2000, losses of UK branches of non resident companies, were contrary to article 43 EC (now article 49 TFEU) on the freedom of establishment, and were thus unlawful. The first claims were originally made and refused by the Revenue (HMRC) more than ten years ago. The matter came before Park J, who made a reference to the CJEU. The CJEU ruled that article 43 EC did not preclude provisions of a Member State which prevented a resident parent company from claiming group relief for losses incurred by a subsidiary established in another Member State. The CJEU also ruled that it is contrary to articles 43 and 48 EC to preclude the possibility for the parent company to deduct from its taxable profits in that Member State the losses incurred by its non resident subsidiary where, in one Member State, the resident parent company satisfies two conditions: (i) the non resident subsidiary has exhausted the possibilities available in its State of residence of having the losses taken into account for the accounting period concerned by the claim for relief and also for previous accounting periods; and (ii) there is no possibility for the foreign subsidiarys losses to be taken into account in its state of residence for future periods either by the subsidiary itself or by a third party, in particular where the subsidiary has been sold to that third party. In giving effect to the CJEUs ruling, Park J, with whom the Court of Appeal agreed, held that the no possibilities test required an analysis of the recognised possibilities legally available given the objective facts of the companys situation at the relevant time, and that the test was to be applied at the date when the group relief claim was made. On the basis of that approach, the matter then made its way through the Tax Chamber of the First Tier Tribunal, and the Upper Tribunal, before reaching the Court of Appeal. Moses LJ, with whom Etherton and Lloyd LJJ agreed, disagreed with Park Js approach. They considered that the claimant should not be given an opportunity to take steps that might bring about a situation in which it could make a cross border claim. However, they concluded that they were bound by previous authority and could not depart from it. In the Supreme Court, four issues arise for consideration. The parties will be heard as to the answers to be given to three of those issues at a later date. The first of those issues addressed in this appeal concerns whether the CJEU decided it was contrary to article 43 EC to preclude cross border group relief in the Member State of the claimant company: (a) only where the taxpayer can show, on the basis of the circumstances existing at the end of the accounting period in which the losses in question arose, that there was no possibility of the losses in question being utilised in the Member State of the surrendering company in that accounting period, in any previous accounting period or in future accounting periods (as HMRC contend); or (b) where the taxpayer can show, on the basis of the circumstances existing at the date of the claim, that there has been no possibility of utilising the losses in the Member State of the surrendering company in any accounting period prior to the date of the claim and no possibility of such utilisation in the accounting period in which the claim is made or in future accounting periods (as M&S contend). The Supreme Court unanimously dismisses HMRCs appeal and adopts approach (b). Lord Hope gives the judgment of the Court. The exercise to be carried out is essentially a factual one. The claimant company ought to be given an opportunity to deal with it in as realistic a manner as possible. It would hardly ever be possible, if regard is had only to how matters stood at the end of the relevant accounting period, to exclude entirely the possibility that the losses in question might be utilised in the Member State of the surrendering company unless, of course, this was prevented by its local law. The CJEUs judgment in February 2013 in Case 123/11 Proceedings brought by A Oy makes clear that the claimant company is not required to be restricted to such an extent [30]. There is no indication that selecting the date of the claim is likely in practice to give rise to any difficulty. On the contrary, that date has the advantage of certainty, as the facts to be inquired into will not be susceptible to change between the making of the claim and the commencement of the inquiry. The entitlement to cross border relief is to be examined, as stated in approach (b), on the basis of the circumstances existing at the date of the claim [31]. The national court will, of course, be alert to the possibility that the claimant company may simply be choosing in which Member State it should be taxed. However, what M&S was doing can be attributed to the fact that the companies had ceased trading six years earlier, and not to the exercise of an option to choose where to seek relief for the losses that had been incurred. There is no reason to think that what it did must be seen as a threat to the balanced allocation of taxing powers [32]. Therefore, the question for inquiry is whether the claimant company has been able to show, on the basis of the circumstances known at the date when it makes its claim, that there has been no possibility of the losses in question being utilised in the Member State of the surrendering company in any accounting period prior to the date of the claim and no possibility of such utilisation in the accounting period in which the claim is made or in any future accounting periods [33].

In 2006, BNP granted to Marks & Spencer (M&S) sub underleases of four different floors in a building known as The Point in Paddington Basin, London W2 from 25 January 2006 to 2 February 2018. Any difference between the sub underleases is irrelevant for the purposes of the appeal, so it is only necessary to refer to one of them (the Lease). Under the Lease, the rent payable comprised a basic rent of 919,800 plus VAT which was payable yearly and proportionately for any part of a year by equal quarterly instalments in advance on the usual quarter days, and a car park licence fee of 6,000 per annum also payable by equal quarterly instalments in advance. The Lease also provided for the landlord to recover, by way of rent, (i) a fair proportion of the costs of insuring the building and (ii) a service charge in respect of services provided to the building. Clause 8 entitled M&S to determine the Lease on 24 January 2012 by giving BNP six months prior written notice (a break notice). A break notice would only have effect to determine the Lease on 24 January 2012 if: (i) there were no arrears of rent on that date (clause 8.3); and (ii) M&S paid BNP the sum of 919,800 plus VAT (clause 8.4). On 7 July 2011, M&S served a break notice on BNP. Shortly before 25 December 2011, M&S paid BNP the basic rent due on that date for the period from 25 December 2011 up to and including 24 March 2012. On or about 18 January 2012, M&S paid BNP 919,800 plus VAT. As a result of these payments, the break notice was effective and the lease determined on 24 January 2012. M&S subsequently brought a claim for the return of the apportioned basic rent in respect of the period from 25 January to 24 March 2012, contending that there should be implied into the Lease a term that, if the tenant exercised the right to determine the Lease on 24 January 2012, it should be entitled to a refund from the landlord of the proportion of the basic rent paid in respect of the period from the date of determination up to and including 24 March 2012. Similar claims were made by M&S in respect of the car park licence fee, the insurance rent and the service charge. The High Court held that M&S was so entitled. The Court of Appeal subsequently allowed BNPs appeal. M&S appeal to the Supreme Court. The Supreme Court unanimously dismisses M&Ss appeal. Lord Neuberger writes the leading judgment, with which Lord Sumption and Lord Hodge agree. Lord Carnwath and Lord Clarke both write concurring judgments. The test for implication of contractual terms The judicial approach to the implication of contractual terms represents a clear, consistent and principled approach [21]. A term will only be implied if it satisfies the test of business necessity or it is so obvious that it goes without saying [17 18]; it will be a rare case where only one of those two requirements are met [21]. The implication of a term is not critically dependent on proof of the actual intention of the parties. If one approaches the question by reference to what the parties would have agreed, one is concerned with the hypothetical answer of notional reasonable people in the position of the parties at the time they were contracting [21]. It is a necessary but not sufficient condition for implying a term that it appears fair or that one considers that the parties would have agreed it if it had been suggested to them [21]. The judgment of Lord Hoffmann in Attorney General of Belize v Belize Telecom [2009] 1 WLR 1988 did not dilute the test for the implication of contractual terms [24, 57 74, 75 77]. Application to the facts It is well established that rent, whether payable in arrear or advance, is not apportionable in time in common law [44]. Section 2 of the Apportionment Act 1870 provides that all rents and other periodical payments should be considered as accruing from day to day and be apportionable in respect of time accordingly [44]. There is no doubt that section 2 applies to rent payable in arrear [45]. The conclusion of the Court of Appeal in Ellis v Rowbotham [1900] 1 QB 740 that the 1870 Act did not apply to rent payable in advance, is correct [45 46]. This mirrors the position on a forfeiture, where a landlord who forfeits a lease under which the rent is payable in advance is entitled to the payment of the whole of the rent which fell due on the quarter day preceding the forfeiture [48]. Given the clear, general understanding that neither the common law nor statute apportion rent payable in advance on a time basis, it would be wrong, save in a very clear case, to attribute to a landlord and a tenant, particularly where they have entered into a full and professionally drafted lease, an intention that the tenant should receive back an apportioned part of rent payable and paid in advance [47, 51]. M&S argued that, had it paid the sum of 919,800 plus VAT due under clause 8.4 before 25 December 2011, it would have been known at that date that the lease would come to an end before 25 March 2012 and thus BNP would only have been due an appropriate portion of the basic rent on 25 December 2011, and that commercial common sense therefore mandated that it should be in the same position whether it paid the 919,800 plus VAT before or after 25 December 2011 [35 36]. This argument is rejected. Any anomaly in the working of the lease does not establish that the contract is unworkable or that the result is commercially or otherwise absurd [52]. The same conclusion applies to the car park licence fee and the insurance rent, but not to the service charge, in respect of which there is specific provision which contemplates repayment [55].

The respondent Ms Mitchell was convicted of the murder on 11 May 2009 of her former partner Anthony Robin. At the trial, she did not dispute that she had stabbed Mr Robin, but said she had acted in self defence. She also claimed that she had been provoked and that she did not have the intention to kill him or cause him really serious harm. The prosecution applied to adduce evidence of Ms Mitchells previous bad character for the purpose of showing that she had a propensity to use knives in order to threaten and attack others. The evidence related to two incidents in 2003 and 2007 in which she was said to have threatened and stabbed others with knives. None of the previous alleged incidents had resulted in a conviction. It was agreed between the prosecution and the defence that statements which contained details of the earlier incidents would be read out during the trial. The judge directed the jury to take [this evidence] into account or leave it out of account as you consider appropriate, but not to make any assumptions based on it as to Ms Mitchells guilt. On appeal, Ms Mitchell argued that the trial judge had failed to direct the jury properly on the purpose of the bad character evidence or the standard of proof to which the jury had to be satisfied before they could take it into account. The Court of Appeal allowed her appeal, quashed the conviction and ordered a re trial. At the re trial Ms Mitchell pleaded guilty to manslaughter and was acquitted of murder. The prosecution appealed to the Supreme Court against the quashing of the murder conviction. The Court of Appeal certified the following question of law: Is it necessary for the prosecution relying on non conviction bad character evidence on the issue of propensity to prove the allegations beyond a reasonable doubt before the jury can take them into account in determining whether the defendant is guilty or not? The Supreme Court unanimously dismisses the appeal and upholds the decision of the Court of Appeal to quash Ms Mitchells conviction for murder. In his judgment Lord Kerr (with whom Lord Clarke, Lord Hughes, Lord Toulson and Lord Hodge agree) clarifies how juries should treat evidence of similar facts or propensity. The prosecution argued that evidence in relation to propensity did not call for any special examination by the jury. It should be considered along with all the other relevant evidence so as to allow the jury to determine whether the defendants guilt was established to the criminal standard. It was not necessary that the issue of propensity be segregated from the generality of the evidence and a pre emptive decision made in relation to that issue, before the question of guilt or innocence of the accused was tackled [19]. The respondent argued that facts supporting the claim that the defendant had a particular propensity had to be proved beyond reasonable doubt. It was inconceivable that a jury could have a reasonable doubt as to the accuracy or veracity of the evidence said to underpin such a propensity and, nevertheless, accept that evidence as sufficient to establish its presence. [21] The Court recognises that there is a distinction between, on the one hand, proof of a propensity and, on the other, the individual underlying facts said to establish that a propensity exists. In a case in which several incidents are relied on by the prosecution to show a propensity on the part of the defendant, it is not necessary to prove beyond reasonable doubt that each incident happened in precisely the way that it is alleged to have occurred. Nor must the facts of each individual incident be considered by the jury in isolation from each other [39]. The proper issue for the jury in a case such as this is whether they are sure, beyond reasonable doubt, that the propensity has been proved. The jury is entitled to and should consider the evidence about propensity in the round [43]. This is both because the improbability of a number of similar incidents being false is a consideration for the jury and secondly because obvious similarities in various incidents may constitute mutual corroboration for those incidents. Nevertheless, the existence of propensity must be proved to the criminal standard. The Court rejects the prosecutions argument that propensity does not call for special treatment. The jury should be directed that if they are to take propensity into account, they should be sure that it has been proved. This does not require that each individual item of evidence said to show propensity must be proved beyond reasonable doubt. It means that all the material touching on the issue should be considered with a view to reaching a conclusion as to whether they are sure that the existence of a propensity has been established [44]. There is no need for the jury to consider each incident in hermetically sealed compartments [49]. In so far as the Court of Appeal in the present case suggested that each incident claimed by the prosecution to show a propensity on the part of the defendant required to be proved to the criminal standard, it was wrong. The proper question is whether the jury is satisfied that a propensity has been established. That assessment depends on an overall consideration of the evidence available, not upon a segregated examination of each item of evidence in order to decide whether it has been proved beyond reasonable doubt [54]. The trial judge failed to give adequate directions as to how the question of propensity should be approached by the jury, however. On that account the conviction was unsafe and had been properly quashed [56]. The Court emphasises, however, that propensity is, at most, an incidental issue. It should be made clear to the jury that the most important evidence is that which bears directly on the guilt or innocence of the accused person. Propensity cannot alone establish guilt [55].

The main issue in this appeal is whether, and if so which and in what circumstances, breaches of public law are capable of rendering unlawful the detention of foreign national prisoners (FNPs) pending their deportation. Section 3(5)(a) of the Immigration Act 1971 (the 1971 Act) confers on the Secretary of State for the Home Department a power to deport foreign nationals. Schedule 3 of the 1971 Act empowers the Secretary of State, in certain specified circumstances, to detain foreign nationals pending deportation. From at least 1991, the Secretary of State had maintained a published policy on the application of the power to detain. This policy presumed in favour of release whilst justifying detention in some circumstances. However, following adverse publicity in April 2006, the Secretary of State adopted a new policy which was not published. Between April 2006 and September 2008, the Secretary of State applied this unpublished policy which imposed a near blanket ban on release of FNPs. On 9 September 2008, the Secretary of State amended the published policy to replace all references to a presumption of release with a presumption of detention. However, on 22 January 2009, following the decision of Davis J in the current proceedings, the published policy was amended again to omit references to a presumption of detention. Walumba Lumba is a citizen of the Democratic Republic of Congo. He entered the UK unlawfully in April 1994. He was later convicted of a number of offences and was sentenced to 4 years imprisonment for wounding with intent on 12 January 2004. On 3 April 2006, the Secretary of State informed Mr Lumba of the intention to deport him. He was due to be released from prison in June 2006, but was informed that he was to be detained pending deportation. He left the United Kingdom voluntarily on 13 February 2011. Kadian Mighty is a citizen of Jamaica. He was granted indefinite leave to remain in the UK in February 2003. On 27 June 2003 he was sentenced to 42 months imprisonment for possession of a Class A drug with intent to supply. On 10 May 2006, the Secretary of State informed Mr Mighty of the intention to deport him. On 19 May 2006, he was detained pending deportation. However, he was released on bail on 28 July 2008. Mr Lumba issued proceedings on 18 October 2007 claiming a declaration that his detention was unlawful and damages. His case was joined with that of Mr Mighty who had issued proceedings on 29 May 2008. In addition, Mr Lumba, who remained in detention until his departure from the United Kingdom, challenged the reasonableness of the duration of his detention and sought a mandatory order that he be released. At first instance ([2008] EWHC 3166 (Admin)), Davis J granted declarations to the effect that it was unlawful for the Secretary of State to operate an unpublished policy which presumed in favour of detention. He dismissed the other claims, including the claims for damages for unlawful detention. The appellants appealed and the Secretary of State cross appealed on the issue of the presumption of detention. The Court of Appeal (Lord Neuberger MR, Carnwath and Stanley Burnton LJJ) allowed the cross appeal but otherwise dismissed the appeals ([2010] 1 WLR 2168). The Supreme Court, by a majority, allows the appeals. Lord Dyson gives the lead judgment. The majority hold that the Secretary of State is liable to both appellants in the tort of false imprisonment as the statutory power to detain them was exercised in breach of public law duties (Lords Phillips, Brown and Rodger dissenting). The appellants are, however, only entitled to nominal damages assessed at 1 (Lords Hope, Walker and Lady Hale dissenting). They are not entitled to exemplary damages. The court remits to the High Court the question whether Mr Lumba was detained for longer than a reasonable period in breach of the principles in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 (the Hardial Singh principles). The court considers five issues: (1) whether the unpublished policy maintained by the Secretary of State between April 2006 and September 2008 is unlawful on grounds of public law error; (2) if so, whether detention on the basis of such a policy is unlawful in circumstances where the appellants would have been lawfully detained in any event; (3) if so, whether the appellants are entitled to recover more than nominal damages; (4) whether the appellants are entitled to an award of exemplary damages; and (5) in the case of Walumba Lumba, whether there has been a breach of the Hardial Singh principles. The requirements of public law The court holds unanimously that it is lawful for the Secretary of State to operate a policy which sets out the practice that she will normally follow in deciding whether or not to detain FNPs pending their deportation, provided that the requirements of public law, Hardial Singh and Article 5(1)(f) of the ECHR are respected: [40] [55]. However, as regards the application of the statutory power to detain, it is unlawful in public law for the Secretary of State to maintain an unpublished policy which is inconsistent with her published policy and which applies a near blanket ban on the release of FNPs: [26] [38]. Such a policy was applied to the appellants between April 2006 and September 2008: [21]. Liability in false imprisonment Breach of a public law duty on the part of the person authorising detention is capable of rendering that detention unlawful and did render it unlawful in this case: [62] [88], [198] [207], [221]. Trespassory torts (such as false imprisonment) are actionable per se regardless of whether the victim suffers any harm. Accordingly, by a majority, the court holds that the fact that the appellants would have lawfully been detained in any event does not affect the Secretary of States liability in false imprisonment: [62], [64] [88], [197], [208] [211], [221], [239] [247]. Lords Phillips and Brown (with whom Lord Rodger agrees) dissent and hold that because the appellants would have been lawfully detained the Secretary of State is not liable to them in false imprisonment: [319] [334], [343] [360]. Damages By a majority, the court holds that the fact that the appellants would have been lawfully detained is relevant to damages rather than to liability. Since the appellants have suffered no loss they should recover no more than nominal damages of 1: [90] [96]. They are not additionally entitled to damages to vindicate the importance of the right and the seriousness of the infringement: [97] [101], [222] [237], [253] [256] (Lords Hope, Walker and Lady Hale dissenting: [176] [180], [195], [212] [217]). Further, the court holds unanimously that the appellants are not entitled to exemplary damages: [150] [169]. Reasonableness of the length of detention under the Hardial Singh principles As regards the assessment of whether a reasonable period of detention has elapsed, the court unanimously holds that the risk of reoffending and the legal challenges pursued by the detainee are relevant. The relevance of a refusal to voluntarily return is limited: [106] [128]. It is for a court of first instance to decide whether Mr Lumbas detention for almost 56 months was in breach of the Hardial Singh principles. Accordingly, his claim is remitted to the High Court: [129] [148].

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

From 1922 successive items of legislation authorised the detention without trial of persons in Northern Ireland, a regime commonly known as internment. The way in which internment operated then was that initially an interim custody order (ICO) was made, under article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 (the 1972 Order), where the Secretary of State considered that an individual was involved in terrorism. On foot of the ICO that person was taken into custody. The person detained had to be released within 28 days unless the Chief Constable referred the matter to the Commissioner, who had the power to make a detention order if satisfied that the person was involved in terrorism. If not so satisfied, the release of the person detained would be ordered. An ICO was made in respect of the appellant on 21 July 1973. He was detained on foot of that ICO, attempted to escape from detention twice and was twice convicted of attempting to escape from lawful custody on 20 March 1975 and 18 April 1975. Following the disclosure of an opinion of JBE Hutton QC dated 4 July 1974, published in line with the 30 years rule, and which suggested that it was a condition precedent to the making of an ICO that the Secretary of State should have considered the matter personally, the appellant challenged the validity of the ICO dated July 1973. He argued that the ICO was invalid because the Secretary of State did not personally consider whether the appellant was involved in terrorism, and consequently argues that his following detention and convictions were also unlawful. The Court of Appeal in Northern Ireland dismissed his appeal. The appellant appeals to this court against the Court of Appeals judgment. The Supreme Court unanimously allows the appeal. It holds that the power under article 4 of the 1972 Order should be exercised by the Secretary of State personally, and, therefore, that the making of the ICO in respect of the appellant was invalid, and that his consequent detention and convictions were unlawful. Lord Kerr gives the judgment with which the other members of the court agree. The question for the court was whether the making of an ICO under article 4 of the 1972 Order required personal consideration by the Secretary of State of the case of the person subject to the order or whether the Carltona principle operated to permit the making of such an Order by a Minister of State [8]. The Carltona principle relates to the decision of the Court of Appeal in Carltona Ltd v Comrs of Works [1943] 2 All ER 560, which accepted as a principle of law that the duties imposed upon ministers and the powers given to ministers are normally exercised under the authority of the ministers by responsible officials of the department [9]. Lord Kerr considered the case law relied upon by the Court of Appeal to determine whether Parliament in the present case had intended to disapply the Carltona principle in the present case at [10 27]. He disagreed with the Court of Appeals understanding of the judgment of Brightman J in In re Golden Chemicals Products Ltd [1976] Ch 300, finding that Brightman J held that the seriousness of the subject matter was not a consideration which was relevant at all in deciding whether the power should be exercised by the Minister or by an officer in his department. He considered that the Court of Appeal in this case was right to hold that the seriousness of the consequences is a consideration to be taken into account and, to the extent he suggested otherwise, Brightman J was wrong [13 14]. Next, Lord Kerr considered Oladehinde v Secretary of State for the Home Department [1991] 1 AC 254. There, the Court concluded that the statutory wording relating to the power under challenge was not, unlike complementary provisions in the relevant Act, expressly limited by way of words such as not [to be exercised] by a person acting under his authority. The absence of such express limitation of the power in question was a clear indication that Carltona there was not disapplied in that case [15 16]. Oladehinde did not consider whether the seriousness of the consequences was a relevant consideration [17]. Lord Kerr then considered Doody v Secretary of State for the Home Department [1992] 3 WLR 956. There, Carltona was held not to have been disapplied because (1) it was established in evidence that a considerable burden would fall on the Secretary of State if he was to exercise the power personally and (2) there was no express or implied requirement in the Act in question that the Secretary of State exercise the power personally [18 19]. Neither consideration obtained on the facts of this case; Doody was therefore distinguishable [19 20]. However, Lord Kerr observed that in Doody there had been implicit acknowledgement that the seriousness of the consequences is a consideration to be taken into account [21]. Lord Kerr did not consider that R v Harper [1990] NI 28 assisted in the resolution of the present appeal [23]. He then analysed McCaffertys Application [2009] NICA 59, where it was suggested that there is a presumption in law that Parliament intends Carltona to apply generally. Lord Kerr did not consider it necessary to determine whether such presumption indeed exists, given that he considered the statutory language on the facts unmistakably clear. However, he expressed an obiter view that there is no such presumption at law, and that cases should instead proceed on a textual analysis of the framework of the legislation in question, the language of pertinent provisions in the legislation and the importance of the subject matter, rather than the application of a presumption [25 26]. Lord Kerr then turned to the relevant legislation. He observed that paragraphs 1 and 2 of article 4 have two noteworthy features. First, there is the distinct segregation of roles. In paragraph 1 the making of the Order is provided for; in paragraph 2, the quite separate function of signing the ICO is set out. He concluded that, if it had been intended that the Carltona principle should apply, there is no obvious reason that these roles should be given discrete treatment [31]. The second noteworthy feature of article 4(2), when read with 4(1), is that the ICO to be signed is that of the Secretary of State. The use of the words, of the Secretary of State indicates that the ICO is one which is personal to him or her, not a generic order which could be made by any one of the persons named in paragraph 2 [32]. Lord Kerr thus reached the following overall conclusions. First, even if a presumption exists that Parliament intends Carltona to apply, it is clearly displaced on the facts by the proper interpretation of article 4(1) and 4(2) read together [37]. Second, the consideration that the power invested in the Secretary of State by article 4(1) a power to detain without trial and potentially for a limitless period was a momentous one provides insight into Parliaments intention and that the intention was that such a crucial decision should be made by the Secretary of State personally [38]. Third, there was no evidence that this would place an impossible burden on the Secretary of State [39]. In conclusion, Parliaments intention was that the power under article 4(1) of the 1972 Order should be exercised by the Secretary of State personally. The making of the ICO in respect of the appellant was invalid. It follows that he was not detained lawfully and was wrongfully convicted of the offences of attempting to escape from lawful custody. His convictions for those offences must be quashed [40 41].

The five respondents arrived in the United Kingdom illegally and claimed asylum. They had all travelled to the United Kingdom via at least one other member state of the European Union in which they had already claimed asylum. In each case, the Secretary of State requested those states to take responsibility for examining the asylum claims pursuant to Parliament and Council Regulation (EU) No 604/2013 of 2013 (Dublin III or the Regulation). Each member state ultimately agreed to that request. Each of the respondents was detained for a period of time pending his or her removal from the United Kingdom pursuant to paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (the 1971 Act). In 2015, the Secretary of State had published a policy in relation to such detention in Chapter 55 of her Enforcement Instructions and Guidance (the EIG). The respondents challenged the lawfulness of their detention by bringing claims against the Secretary of State for the Home Department. The High Court dismissed the challenges of the first to fourth respondents, but the detention of the fifth respondent was found to have been unlawful. The first to fourth respondents appealed to the Court of Appeal. In the case of the fifth respondent, the Secretary of State appealed to the Court of Appeal. By a majority, the Court of Appeal allowed the appeals of the first to fourth respondents and dismissed the Secretary of States appeal. The Secretary of State now appeals to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Kitchin gives the sole judgment, with which Lady Hale, Lord Reed, Lord Wilson and Lady Arden agree. There were two particular questions before the Supreme Court [2]. First, was the detention of each respondent lawful, given that article 28 of the Regulation permits detention where there is a significant risk of absconding? The phrase risk of absconding is defined in article 2(n) of the Regulation as the existence of reasons in an individual case, based on objective criteria defined by law, to believe that the person might abscond. Secondly, if the detention was not lawful, are damages payable either under domestic law for false (or wrongful) imprisonment, or pursuant to what is known as the Factortame principle established in Brasserie du Pecheur SA v Germany; R v Transport Secretary; Ex p Factortame Ltd No 4 (Joined Cases C 46/93 and C 48/93) [1996] QB 404? A policy such as that embodied in Chapter 55 of the EIG is published so that an individual affected by it knows the criteria by which the executive has chosen to exercise the power conferred upon it by statute. Its publication also allows the individual to make appropriate representations in relation to that exercise of power as it affects him or her [49]. The executive must follow its stated policy unless there are good grounds for not doing so [50]. Chapter 55 does not establish objective criteria for the assessment of whether an applicant for international protection who is subject to a Dublin III transfer procedure may abscond. Its contents do not constitute a framework with certain predetermined limits. Further, it does not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which is binding and known in advance. Therefore, the Court of Appeal was right to hold that Chapter 55 cannot satisfy the requirements of articles 28(2) and 2(n) of the Regulation [65]. Chapter 55 does not satisfy the requirements laid down by the Court of Justice of the European Union in Policie R, Krajsk editelstv policie steckho kraje, odbor cizineck policie v Al Chodor (Case C 528/15) [2017] 4 WLR 125. Because Chapter 55 does not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which is binding and known in advance, it lacks the necessary qualities of certainty and predictability. It therefore does not constitute a law for the purposes of articles 28(2) and 2(n) [74]. A broader question is whether a statement of policy and public law adherence to it can ever amount to a binding provision of general application and so a law within the meaning of article 2(n) [75]. That question should be decided in a case in which it is necessary to do so [79]. Any claim by the respondents for damages under European Union law must be judged by reference to the principles established in Francovich v Italy (Case C 6/90) [1993] 2 CMLR 66 and Factortame. However, those principles do not constrain the claim by the respondents for damages for wrongful imprisonment [88]. In R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245, the Supreme Court considered the test for when a public law error bearing upon and relevant to a decision to detain can found a claim for damages for false imprisonment. That test is met in the cases in this appeal. There was a requirement for a binding provision of general application containing objective criteria underlying the reasons for believing that an applicant might abscond, and that requirement was not satisfied. This was fundamental to the decision to detain and it makes no difference whether the source of that requirement lay in European Union or domestic legislation [98]. Chapter 55 did not comply with articles 28(2) and 2(n) of the Regulation, with the consequence that, in the case of each of the respondents, the decision to detain lay outside the scope of any legitimate exercise of the discretion conferred by Schedule 2 to the 1971 Act. The ingredients of the tort of wrongful imprisonment were undoubtedly present. The right under domestic law to claim damages for wrongful imprisonment is not dependent on the law being clear. Nor is it dependent upon whether the illegality is the consequence of a failure to comply with European Union legislation (as in this case) or has some other cause [101]. The majority in the Court of Appeal were right to hold that the respondents were wrongfully detained. The respondents are entitled to compensation under domestic law for any loss that the wrongful detention has caused them [105, 114]. The Secretary of States submission that the respondents should only be entitled to nominal damages is rejected [106 112]. It is not necessary in this appeal to consider the respondents alternative claim for damages under European Union law, since it is not contended that any such damages would exceed those payable for false imprisonment under domestic law [113]. The County Court will assess the amount of damages, if it cannot be agreed [114].

The parties entered into a fixed sum credit agreement on 20 April 2005 whereby Southern Pacific Securities (the respondent) loaned Mr and Mrs Walker (the appellants), the sum of 17,500. In addition to the loan a Broker Administration Fee of 875 was advanced to the appellants to enable them to pay for the arrangement of the loan. Interest was payable on the Broker Administration Fee at the same rate as on the loan of 17,500. The credit agreement set out the Amount of Credit as 17,500 (being the loan) and the Total Amount Financed as 18,375 (being the loan together with the Broker Administration Fee). Under the Consumer Credit Act 1974 (the Act) agreements predating 6 April 2007 are only enforceable if they contain certain prescribed terms (section 127(3)). The prescribed terms for agreements such as the one entered into by the parties in this case included a term stating the amount of credit. Section 9 of the Act defines credit as including a cash loan, and any other form of financial accommodation (section 9(1)) and provides that for the purposes of the Act an item entering into the total charge for credit shall not be treated as credit even though time is allowed for its payment (section 9(4)). The appellants are in arrears on the loan payments, owing at least 40,000, and risk losing their home. On 21 June 2007, a District Judge granted a suspended order for possession of the property. They appealed to the Circuit Judge, arguing that the credit agreement incorrectly states the amount of credit and therefore, by section 127(3) of the Act, the credit agreement is unenforceable. The appellants case is that the true amount of credit was not 17,500 but 18,375, which is the amount shown in the agreement as the Total Amount Financed. The Appellants succeeded in the Chester County Court on 27 April 2009, and the judge ordered the discharge of the charge registered on their property. The Court of Appeal allowed the respondents appeal on 12 November 2009. The issue in the appellants appeal to the Supreme Court is the correct definition of an amount of credit under the Act, and whether the Act permits interest to be charged on a sum (such as the Broker Administration Fee) which is not part of the total amount of credit but rather is a charge for credit. The Supreme Court unanimously dismisses the appeal, essentially for the reasons given by the Court of Appeal. Although the Broker Administration Fee of 875 was advanced to the appellants and repayable with interest, it was part of the total cost of, or charge for, credit and therefore cannot be treated as part of the credit. Lord Clarke delivered the judgment of the Court. Section 9(4) of the Act provides that an item entering into the total charge for credit shall not be treated as credit. It follows that if an item is part of the total charge for credit, it cannot form part of the amount of credit. The relevant authorities stress that the first step is to assess the total charge for credit so that those items financed by the creditor which form part of the charge for credit can be identified and stripped out before the amount of credit is determined (paras [14] [16]). The Act does not define charge for credit. Following Watchtower Investments Ltd v Payne [2001] EWCA Civ 1159, in determining the charge for credit, the court must decide the true cost to the appellants of the credit provided under the agreement. In this case, two items were the subject of debate: the Broker Administration Fee and the interest charged on that fee. In the courts judgment there was no doubt that the Broker Administration Fee was part of the total cost of the credit. It was a fee paid to intermediary brokers and, as such, was a cost to the appellants of borrowing the 17,500. Once it is accepted that the fee was part of the total charge for credit, it follows that it must be stripped out of the amount of credit and, by section 9(4) of the Act, cannot be treated as credit. If the fee had been expressed in the agreement as part of the amount of credit so that the amount of credit was shown as 18,375, the agreement would have been unenforceable, as was held in Wilson v First County Trust Ltd [2001] QB 407 (paras [18] [19]). The court then considered whether that conclusion is affected by the fact that the respondent was lending the fee at a rate of interest. The court concluded it is not. Section 9(4) does not prohibit the charging of interest. If the fee itself was part of the total charge for credit, it follows that interest on the fee was also part of the total charge for credit and cannot be treated as credit. Contrary to the Appellants submissions, interest is not a necessary feature or indicator of credit (paras [20] [24]).

On 2 December 2003 the Respondents, four police officers serving in the Metropolitan Police Service (the officers), took part in the arrest of a suspected terrorist, BA. BA subsequently made allegations that the officers had seriously assaulted and injured him during the arrest. In October 2004, the Independent Police Complaints Commission (IPCC) decided that one charge should be brought against the First Respondent. That charge was dismissed in April 2005. Between 14 January and 2 February 2005 the IPCC released the officers identities into the public domain. This led to threats of serious violence to the officers and their families on a website that supported BA. On 18 October 2007 BA commenced civil proceedings against the Appellant Commissioner in which he alleged that the Commissioner was vicariously liable for the serious assaults that he alleged the officers had inflicted on him. The officers were not parties to these proceedings. On 18 March 2008 the officers attended a meeting with legal advisers instructed on behalf of the Commissioner. The officers subsequently alleged that they were assured at this meeting that the Commissioners legal advisers were also acting for them. The officers maintain that at a second meeting with legal advisers instructed on behalf of the Commissioner on 11 March 2009 they were told that the legal team was no longer representing their interests but only those of the Commissioner. The trial of BAs claim commenced on 16 March 2009. The officers declined to give evidence voluntarily without special measures to protect their identity being put in place. On the third day of the trial, the claim was settled with an admission of liability by the Commissioner and an apology for the gratuitous violence to which BA had been subjected by the officers. The officers maintain that a press release issued by the Commissioner after trial was tantamount to endorsing their culpability. In June 2011, the officers were all acquitted in the Crown Court of charges of assault occasioning actual bodily harm arising out of the arrest of BA. On 23 September 2013, the officers commenced the present proceedings against the Commissioner seeking compensation for reputational, economic and psychiatric damage. They advanced three claims: (i) a retainer had arisen between them and the Commissioners legal team, (ii) the Commissioner had assumed a duty of care by reason of the assurances, and (iii) the Commissioner owed them a duty to take reasonable care to safeguard their safety, health, welfare (including economic and professional welfare) and reputational interests in the preparation and conduct of the defence of BAs claim. On 1 May 2015 the judge struck out these claims. The judge found, amongst other things, that the officers had no direct interest in the litigation between the Commissioner and BA and the possibility of consequential impact on their reputations was insufficient to create such an interest to which the Commissioner would be legally required to have regard. The officers appeal to the Court of Appeal was successful in part. The Court of Appeal held that it was arguable that the Commissioner owed a duty of care to the officers to safeguard their economic and reputational interests and that this extended to the Commissioners conduct of the litigation. The Commissioner now appeals to the Supreme Court solely on this issue. The Supreme Court unanimously allows the appeal. Lord Lloyd Jones gives the judgment with which the other Justices agree. Although police officers have no contract of employment, the officers relied heavily on the analogy of the implied term in employment contracts of mutual trust and confidence between employer and employee [16]. However, the Court was not referred to any decided case in any jurisdiction which holds that the duty of care for which the officers contend can be derived from this mutual implied term [17]. To derive such an obligation would be to move substantially beyond the specific derivative duties established in previous cases [18 20]. The existence of the proposed duty must be established in the tort of negligence [21]. This is clearly a case in which it is sought to extend a duty of care to a new situation. In determining whether such a duty should be recognised the law will proceed incrementally and by analogy with previous decisions (Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4). The proposed duty will also be tested against considerations of legal policy and the coherent development of the law [22 23] The common law does not usually recognise a duty of care in the tort of negligence to protect reputational interests [23]. The decision in Calveley v Chief Constable of Merseyside Police [1989] 1 AC 1228 has an important bearing on the present case. There it was held that a Chief Constable does not, in principle, owe a duty of care to protect the economic and reputational interests of his officers in respect of the prosecution of an investigation or disciplinary proceedings against them. It is therefore difficult to see why a Chief Constable should owe a duty to his officers as to the manner in which he defends a claim brought against him by a third party, especially considering that, in such a claim, the Chief Constables role is essentially responsive to allegations made by the third party [25 26]. The fact that the recognition of a duty of care may potentially subject an individual to conflicting duties does not necessarily preclude its imposition but in such cases it is necessary to have regard to the competing underlying policy considerations [28 29]. The interests of an employer who is sued on the basis that he is vicariously liable for the tortious conduct of his employees differ fundamentally from the interest of those employees [30]. The possibility of contribution proceedings between employer and employee highlights the potential for conflicts of interests [31]. These stark differences in interests strongly suggest that it would not be fair, just or reasonable to impose on an employer a duty of care to defend legal proceedings so as to protect the economic or reputational interests of his employees. It is not realistic to suggest that this potential for conflict can be overcome by recognition of a duty of care up to the time at which an actual conflict arises [32]. Moreover, in the context of the present case, the Commissioners public duties are inconsistent with the imposition of such a duty of care [33]. Considerations relating to legal policy and the practical conduct of proceedings also weigh heavily against the duty for which the officers contend. For instance, parties to a dispute should be able to conduct litigation in order to resolve their disputes without fear of incurring liability to third parties [34 38]. Finally, the officers argue that, because both they and the Commissioner had a common interest in the outcome of BAs claim, they would have been able to rely on common interest privilege in asserting an entitlement to the disclosure of material in the possession of the Commissioner which is privileged against disclosure to others. However, the cases show that something more than a shared interest in the outcome of litigation is required before common interest privilege can be used in this manner. Legal professional privilege is, therefore, a further policy consideration that weighs against the recognition of the duty of care for which the officers contend [39 46].

This appeal concerns provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the Act) designed to address the problem of entrapped patients, namely those who no longer require the level of security afforded by the state hospital but for whom appropriate local services are not available [3 11]. The appellant, G, was tried for rape, assault and breach of the peace in 1998 and acquitted on the ground of insanity. He is detained at the state hospital at Carstairs under a compulsion order and a restriction order. G made an application under section 264(2) of the Act. It provides that the mental health tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only at the state hospital, make an order (a) declaring that he is being detained in conditions of excessive security, and (b) specifying a period not exceeding 3 months during which certain duties shall be performed [28 29]. These include the identification of a hospital, which is not a state hospital, in which the patient could be detained in appropriate conditions and in which accommodation is available for him [31]. Decisions under section 264(2) are among those functions that must be discharged having regard, insofar as relevant, to the matters set out at section 1(3) of the Act. These include the wishes and feelings of the patient (s.1(3)(a)), the importance of providing the maximum benefit to him (s.1(3)(f)), and the need to ensure that, unless it can be justified, he is not treated less favourably than a non patient in a comparable situation would be (s.1(3)(g)) [12 18]. Section 1(4) provides that the function must be discharged in the manner that appears to the person discharging it to involve the minimum restriction on the freedom of the patient that is necessary in the circumstances, after having regard to matters including those in section 1(3) and such other matters as are relevant in the circumstances [22]. Gs application was refused. At the first stage of its section 264(2) analysis, the tribunal found G did not require to be detained under conditions of special security that could be provided only at the State Hospital. At the second stage, when considering whether to exercise its discretion to make an order, it had regard to section 1, referring in particular to maximum benefit (section 1(3)(f)) and to the least restrictive option (s.1(4)). It did not expressly mention the other provisions of section 1(3), (5) or (6). It found [47 53] that he had recently been subject to the lowest level of security at Carstairs. He continued to pose some risk of sexual violence towards women and the best way of managing it could only be determined once he had undertaken and completed satisfactorily a course of psychological treatment for sexual offending. The psychology department at Carstairs was best placed to deliver this treatment, and the tribunal was concerned that G was less likely to engage in it in a medium secure hospital. Consequently, there was a significant risk that he would become trapped in the medium secure system. The risk he posed meant he would need to be subject to greater restrictions on his movements in a medium secure hospital than at Carstairs unless and until he completed the necessary treatment, which could take 12 to 18 months. There was a significant risk of consequential mental health problems. The tribunal found that it was of maximum benefit to G that he remain at Carstairs. Gs appeal to the Court of Session was refused. Before the Supreme Court, he argues that the tribunal: (i) failed to exercise its discretion in accordance with the purpose of section 264: subsection (2) should be interpreted as conferring only a residual discretion to refuse an order in exceptional circumstances at stage 2 where a decision favourable to the application had been reached at stage 1; (ii) was influenced at stage 2 by the risk G posed to women, when consideration of risk ought to have been confined to stage 1; (iii) placed weight on the unavailability of suitable resources elsewhere an irrelevant factor; (iv) failed to have regard to his wishes and feelings and to the need to avoid discrimination; and (v) elevated the importance of providing maximum benefit (s.1(3)(f)) above the least restrictive alternative principle (s.1(4)). The Supreme Court unanimously dismisses the appeal. Lord Reed, with whose judgment the other Justices agree, addresses each ground of appeal as follows: (i) The tribunal understood that section 264(2) involved two stages and what those stages were. Once stage 1 is satisfied, the application should be granted unless there is some good reason to refuse it [41]. The range of matters the tribunal may take into account is necessarily wide but its discretion must be exercised consistently with the intention of Parliament. There is no legal reason why it is only in exceptional circumstances that an application should be refused at stage 2 [55]. (ii) Given the nature of a section 264 decision, risk is plainly relevant at each stage of the process. The increased risk to women which might result from a transfer to a medium secure hospital where there would be female patients was a relevant matter falling within section 1(4)(c). The finding that the risk would result in greater restrictions in the medium secure unit was plainly relevant to the tribunals section 1(4) assessment, and it was also entitled to have regard, under section 1(3)(f), to the consequential risk to Gs mental health [57]. (iii) Although the unavailability of accommodation does not preclude the granting of an application [38; 42], this does not mean the comparative quality of treatment available at other hospitals is irrelevant. The tribunal is not prevented from taking into account a clinical comparison [59 61]. (iv) Whilst it did not mention them, it is clear that the tribunal had regard to Gs wishes and feelings insofar as relevant, in particular his wish to be transferred to a medium secure hospital and his attitude towards different forms of treatment. In relation to section 1(3)(g). Lord Reed rejects the argument that the provision is irrelevant to the discharge of the section 264 function since a patient is not comparable to a person of full capacity. It is undoubtedly relevant, but it was enough that the tribunal dealt with the critical issues sufficiently to enable the parties and the court to understand why the application had been refused. A formulaic rehearsal of every matter in section 1 was not required [64]. It is not readily apparent that the tribunal understood the structure of section 1. On the facts of this (v) case, however, this cannot have affected the substance of its decision. It appears most likely that it did not reach a clear conclusion on section 1(4). In those circumstances, it was entitled to exercise its discretion having regard to all relevant matters and in accordance with the objects of the Act. Its conclusion that it would be of maximum benefit for G to remain in the State Hospital was reasonable [65 67]. In a short concurring judgment, Lady Hale agrees with a degree of reluctance that the appeal should be dismissed. She shares Lord Reeds view [43] that it would be unreasonable to make a section 264 order where there was no conceivable possibility of an appropriate bed being found elsewhere, but stresses that such a conclusion is one that a tribunal should be slow to reach. One must beware the Catch 22 where the patient does not need a high level of security but the facilities offered are not suitable to the level of security he does need by reason of a lack of appropriate work done with him in the state hospital. In this case she agrees with Lord Reed that the tribunal was entitled to reach the factual conclusion that the patients therapeutic needs would be better met in the state hospital.

This issue in this appeal is whether the Appellant, as local planning authority, properly understood the meaning of the word openness in the national planning policies applying to mineral working in the Green Belt, as expressed in the National Planning Policy Framework (NPPF). Paragraph 90 of the NPPF (in its original 2012 form) provides: Certain other forms of development are not inappropriate in the Green Belt provided that they preserve the openness of the Green Belt and do not conflict with the purposes of including land in the Green Belt. These are: mineral extraction; The application in issue in this case was for the extension of the operational face of Jackdaw Crag Quarry. This is a magnesian limestone quarry 1.5 kilometres to the south west of Tadcaster, North Yorkshire, owned and operated by the Third Respondent, Darrington Quarries. The Appellants Planning and Regulatory Functions Committee on 9 February 2016 accepted their officers recommendation that planning permission be granted. The officers report detailed a wide range of planning considerations. Under the heading Landscape impact the report summarised the views of the Appellants Principal Landscape Architect, who did not object in principle to the proposal, but drew attention to the potential landscape impacts and the consequent need to ensure that mitigation measures were maximised. In a section headed Impacts of the Green Belt the report referred to the consultation response from the First Respondent, including comments addressing the openness of the Green Belt. The First and Second Respondent brought judicial review proceedings of the decision to grant planning permission. They said, among other things, that the officers report erred in its analysis of openness in paragraph 90 of the NPPF in that it did not consider visual impact. The High Court (Hickinbottom J) found no error as the officers report was not required to take into account visual impact from the development. Disagreeing, the Court of Appeal (Lindblom and Lewison LJJ) held that the officers report was defective at least in failing to make clear that, under para 90 of the NPPF, visual impact was potentially relevant; and, further, that on the officers findings visual impact was quite obviously relevant and therefore a necessary part of the assessment. The planning permission was quashed. The Supreme Court unanimously allows the Appellant and Third Respondents appeal. Lord Carnwath gives the sole judgment, with which the other Justices agree. On a proper reading of the NPPF in its proper historic context visual quality of landscape is not in itself an essential part of openness for which the Green Belt is protected [5]. While the text of paragraph 90 of the NPPF has changed from that in Planning Policy Guidance 2: Green Belts (published 1995, amended in 2001), there has been no significant change of approach [12]. The concept of openness in paragraph 90 of the NPPF is a broad policy concept which is the counterpart of urban sprawl and is linked to the purposes to be served by the Green Belt. Openness is not necessarily a statement about the visual qualities of the land, nor does it imply freedom from all forms of development [22]. The question is, therefore, whether visual impact was a consideration which, as a matter of law or policy, was necessary to be taken into account, or was so obviously material as to require such direct consideration [32]. Whether the proposed mineral extraction would preserve the openness of the Green Belt or otherwise conflict with the purposes of including land within the Green Belt was specifically identified and addressed in the officers report. Paragraph 90 of the NPPF does not expressly or impliedly mandate the consideration of visual impact as part of such an analysis [39]. The officers report does not suggest that visual impact can never be relevant to openness [40]. The relevant paragraphs of the officers report addressing openness must be read together. Some visual effects were given weight in the consideration of the restoration of the site. The relatively limited visual impact fell far short of being so obviously material that failure to address it expressly was an error of law, as did the fact that the proposed development was an extension to the quarry. These were matters of planning judgement and not law [41].

This appeal concerns a particular application of settled principles which delineate the circumstances in which an appellate court may interfere with findings of fact made by a judge sitting at first instance. The Appellant (DM) and first Respondent (RM) are father and son respectively. DM and his wife left Scotland many years ago to live in the United States. RM and his partner (LG), who is the second Respondent, live in Scotland with their son. The Appellant and his wife decided to return to Scotland in 2005 when the latter became terminally ill. DM asked RM, who is a property developer, to find a suitable property for him and his wife to live in upon their return. When RM did so, DM transferred the funds required to purchase that property (the St Helens Gardens property) to RMs bank account. RM subsequently arranged the purchase. However, unknown to DM, he arranged for the title to the property to be taken in his own name. DM moved into the property with his wife on 1 January 2006, but she died six days later. In February 2007, DM gave RM a cheque in his favour for 285,000, the reason for which is subject to the dispute which gives rise to this appeal. RM and LG used 200,000 from that amount, together with 90,000 raised by way of a mortgage, to buy a newly built house in Stewarton (the Lochrig Court property), taking title in their own names. The remainder of the 285,000 was spent on cars, the repayment of debts, improvement of their existing home prior to sale and finishings for the Lochrig Court property. DM raised the present proceedings later in 2007 seeking, among other remedies, the conveyance of the two properties to him. He maintained that, first, RM had acted without his authority in taking title to the St Helens Gardens property in his own name and, second, that RM and LG had acted without his authority in taking title to the Lochrig Court property in their names. In relation to the former, RM maintained that DM had instructed that title to the St Helens Gardens property was to be taken in his (RMs) name. In relation to the latter, RM and LG maintained that the payment of 285,000 had been a gift. The case proceeded to proof before the Lord Ordinary, Lord Brodie, in the Outer House of the Court of Session, who found in favour of DM and ordered that the properties be transferred to him. It was central to the Lord Ordinarys decision that he preferred the evidence of DM over that of RM on the central issues of fact, finding that DM had not made substantial gifts to RM. RM and LG appealed to the Inner House of the Court of Session in relation to the Lochrig Court property only. Noting that the Lord Ordinary had stated that he did not find any of the other evidence materially to undermine DMs account, the Inner House identified a number of aspects of the evidence which they asserted did exactly that. They therefore concluded that they were entitled to overturn the Lord Ordinarys decision on the basis that he had gone plainly wrong and to substitute their own decision on the facts from the printed record of proceedings. The Supreme Court unanimously allows DMs appeal. Lord Reed gives the judgment of the court. The Inner House considered that eight separate aspects of the evidence had undermined DMs evidence [24]. However, of these, only four were of substance [25 26], and each of those had been expressly taken into account by the Lord Ordinary in reaching his conclusion on DMs credibility [27]. In a case such as the present one, in which the trial judge is faced with a stark choice between irreconcilable accounts, the credibility of the parties testimony is of primary importance. In that regard, the Lord Ordinary found that DM was a credible witness on the central issue of whether the payment of 285,000 was a gift, notwithstanding a number of aspects of the evidence which could be regarded as detracting from his credibility [28, 30]. The question whether DMs evidence was to be regarded as credible and reliable, having regard to the other evidence in the case, was pre eminently a matter for the Lord Ordinary [28]. Further, the Inner House did not consider the weight of the evidence adverse to DMs credibility in the context of the evidence as a whole. They did not appear to have given any weight to the extent to which the Lord Ordinarys conclusion was affected by the manner in which the witnesses gave evidence, which the Inner House could not have assessed for themselves from the printed record. They did not consider the Lord Ordinarys assessment of the character of the witnesses or the unchallenged finding that RM had acted in breach of trust in relation to the St Helens Gardens property. They also did not scrutinise the evidence of RM or LG in the same way they did that of DM [29]. It was not correct for the Inner House to rely on the case of Hamilton v Allied Domecq plc [2007] UKHL 33, in which a critical finding of fact had been made which was unsupported by the evidence. That was not the position in the present case [31]. Finally, in relation to the issues raised on the appeal, the Lord Ordinarys assessment that the evidence of the Respondents son added little or nothing on the basis that he largely recounted what he had been told by his parents, was borne out by the relevant passages of the evidence. The Lord Ordinary did not therefore err in failing to give greater weight to that evidence [32]. In the whole circumstances, therefore, the Inner House had no proper basis for concluding that the Lord Ordinary had gone plainly wrong, let alone that on a re consideration of the whole evidence the opposite conclusion should be reached [33]. While the case concerned the application of long settled legal principles, the Court does not criticise the bringing of the appeal. The failure of an appellate court to apply those principles correctly may raise a point of law of general public importance [35].

The European Bank Recovery and Resolution Directive 2014/59/EU (EBRRD) amended Directive 2001/24/EC on the Reorganisation and Winding up of Credit Institutions (the Reorganisation Directive), so as to require member states to confer on their domestic Resolution Authorities certain tools for reconstructing failing credit institutions. One of the tools was the bridge institution tool, which required designated national Resolution Authorities to have the power to transfer to a bridge institution any assets, rights or liabilities of a failing credit institution. The Appellants are the assignees of the rights of Oak Finance Luxembourg SA (Oak). In June 2014, Oak entered into a facility agreement with a Portuguese bank, Banco Esprito Santo SA (BES), under which it agreed to lend BES approximately $835m (the Oak liability). The facility agreement was governed by English law and provided for the English courts to have exclusive jurisdiction over any dispute. The entire loan was advanced on 3 July 2014. BES made one scheduled payment of approximately $53m, but it shortly became clear that BES was in serious financial difficulties. The Central Bank of Portugal, which is the designated Resolution Authority for Portugal for the purposes of the EBRRD, decided to invoke the bridge institution tool to protect depositors funds in BES. By a decision dated 3 August 2014 (the August decision), it incorporated the Respondent (Novo Banco) to serve as the bridge institution and transferred specified assets and liabilities of BES to it, purportedly including the Oak liability. Under article 145H(2) of the Portuguese Banking Law, however, no liability could be transferred to a bridge institution if it was owed to an entity holding more than 2% of the original credit institutions share capital. By a decision dated 22 December 2014 (the December decision), the Central Bank determined that the Oak liability had never been transferred to Novo Banco, as it fell within the article 145H(2) prohibition. There are ongoing administrative law proceedings in Portugal in which the Appellants challenge the December decision, which have not yet been resolved. The Appellants commenced an action in the English courts for sums due in respect of the Oak loan, on the basis that the Oak liability had been transferred to Novo Banco by the August decision, and that Novo Banco was bound by the jurisdiction clause in the facility agreement. Novo Banco countered that the December decision conclusively determined that the liability had not been transferred to it. At first instance, relying on article 66 EBRRD, the judge found that the Oak liability had been transferred to Novo Banco by the August decision and that Novo Banco became party to the jurisdiction clause. The Court of Appeal allowed Novo Bancos appeal. Relying instead on article 3 of the Reorganisation Directive, it held that an English court was bound to recognise the effect of the December decision as a matter of Portuguese law, which was to determine conclusively that the Oak liability had not been transferred. The Supreme Court unanimously dismisses the appeal. Lord Sumption gives the lead judgment, with which the rest of the Court agrees. An English court is required by article 3 of the Recognition Directive to recognise the December decision, and must therefore treat the Oak liability as never having been transferred to Novo Banco. Novo Banco was therefore never party to the jurisdiction clause in the facility agreement. The provision which is primarily relevant to this appeal is article 3 of the Reorganisation Directive, which determines the applicable law to be applied to a reorganisation measure in England. Article 66 of the EBRRD is a more specific provision which concerns enforcement [22]. Lord Sumption makes two points about the Reorganisation Directive, particularly article 3. First, its purpose is to ensure that all assets and liabilities of the institution, regardless of the country in which they are situated, are dealt with in a single process in the home member state. This can be achieved only by taking the process as a whole and applying the legal effects attaching to it under the law of the home state in every other member state. It is not consistent with the language or the purpose of article 3 that an administrative act such as the December decision, which affects the operation of a reorganisation measure under the law of the home state, should have legal consequences as regards a credit institutions debts which are recognised in the home state but not in other member states. [24 26]. Second, article 3 does not only give effect to reorganisation measures throughout the Union, but requires them to be applied in accordance with the laws, regulations and procedures applicable in the home member state, unless otherwise provided in this Directive, and to be fully effective in accordance with the legislation of that member state. In this legal scheme, it cannot make sense for the courts of another member state to give effect to a reorganisation measure but not to other provisions of the law of the home state affecting its operation [27]. For these reasons, Lord Sumption rejects the proposition that the effect of the August decision can be recognised without regard to the December decision. It does not matter what the correct analysis of the December decision is, provided that it is accepted (as it is) that unless and until it is set aside, it is conclusive as a matter of Portuguese law that the Oak liability had never been transferred. It follows from the agreed propositions of Portuguese law and from the requirements of article 3(2) of the Reorganisation Directive that an English court must treat the Oak liability as never having been transferred to Novo Banco. Novo Banco was therefore never party to the jurisdiction clause [28]. Lord Sumption also rejects the Appellants alternative case that, even if the December decision is otherwise entitled to recognition in England, it should be disregarded on the ground that it was a provisional decision pending the final decision of a Portuguese administrative court. As a matter of Portuguese law, the December decision is binding in Portuguese law unless and until it is set aside by a Portuguese court [31 33]. Further, no other conclusion would be consistent with the Directives, particularly article 3 of the Reorganisation Directive, which provides that the implementation of a reorganisation measure such as the August decision is a matter for the administrative or judicial authorities of the home state alone, and article 85 of the EBRRD, which provides that an appeal is not to entail any automatic suspension of the challenged decision [34]. There is no basis for a reference to the CJEU, as the relevant propositions of EU law are beyond serious argument [35].

This appeal concerns the effectiveness of a scheme (Project C) which was designed to minimise the liability to VAT of a group of companies (Oriel) involved in providing motor breakdown insurance (MBI). The supply of insurance is exempt from VAT. Insurers therefore neither charge VAT on premiums nor account to Her Majestys Revenue and Customs (the Commissioners) for VAT in respect of their insurance business. They also bear the VAT element of the costs incurred in the course of their business which are chargeable to VAT, as they may not deduct that VAT element from any VAT that they have received. Accordingly when an MBI insurer indemnifies an insured against the cost of repairs, the insurer may not deduct the VAT element of the repairing garages invoice. The VAT paid to garages by MBI insurers represents a substantial business cost. They perceive themselves to be at a disadvantage relative to competitors whose business is not exempt from VAT, and who can therefore offer car repair services and deduct the VAT element of the costs incurred as input tax. Project C sought to remedy that disadvantage by enabling one or other member of Oriel to recover the VAT element of the repair costs. NIG is a UK insurer which provides a UK front for an offshore MBI business carried on by Oriel. NIGs policies cover the cost of repairs and replacement parts following breakdowns of second hand cars. The policies are marketed and sold by another UK company (Warranty), which is a member of the Oriel group. Prior to the implementation of Project C, NIG reinsured the risk under the policies with a Gibraltar based member of Oriel (Practical). Warranty was appointed by NIG to handle claims made under the policies. In the event of a breakdown, the insured contacted Warranty and was directed to a garage approved by Warranty, a garage of the insureds choice or the dealer garage. Warranty paid for the repairs carried out by the garages. The VAT on such payments was irrecoverable. Project C attempted to solve that problem. It consisted of two strands. The first was based on legislation interpreted by those responsible for Project C as enabling UK insurance claims handlers to recover input tax incurred for the purpose of supplying their services to a non EU recipient. WHA Ltd (WHA), a UK member of the Oriel group, therefore began to supply claims handling services to Viscount Reinsurance Company Ltd (Viscount), a member of the group based in Gibraltar, and therefore outside the EU, with which 85% of the risk under NIGs MBI policies was reinsured. The intention was that WHA would be regarded as the recipient of a supply of repair services from the garages on which VAT would be charged; would not have to charge output tax on its onwards supply of claims handling services to Viscount as the latter was outside the EU; and as a result would be entitled to recover input tax from the Commissioners under the legislation. The second strand of Project C was a fall back line of defence designed to deal with any assertion by the Commissioners that the second stage of the first strand, namely that VAT was not chargeable on WHAs supply of claims handling services to Viscount, was incorrect. That conclusion would render the first strand ineffective. On the basis of legislation which was interpreted as enabling Viscount to recover the VAT which it paid to WHA so long as Viscount itself made supplies to a non EU recipient, another Gibraltar based member of the Oriel group (Crystal) was installed to reinsure 100% of the risk under NIGs MBI policies, and in turn to retrocede 85% of that risk to Viscount. Notably, the second strand also proceeded on the basis that WHA would be regarded as the recipient of a supply of repair services from the garages. The Commissioners refused to repay tax to WHA and Viscount for several reasons that pertained to either the first, second or both strands of Project C. In particular, they argued that the garages did not in fact make a taxable supply of services to WHA, a conclusion that would vitiate both strands. They also argued that even if they were wrong in that and other arguments, Project C was so artificial that it fell foul of the EU law doctrine of the abuse of rights. The Court of Appeal held that the garages did make a taxable supply to WHA, that the first strand of Project C was ineffective for other reasons, but that under the second strand Viscount was entitled to recover the VAT it had paid to WHA, subject to the question of abuse of rights. It subsequently held that the scheme was a breach of the abuse of rights doctrine. WHA and Viscount appeal to the Supreme Court, arguing that WHA does receive a taxable supply from the garages and that Project C is not a breach of the abuse of rights doctrine. The Supreme Court unanimously dismisses the appeal. Lord Reed gives the judgment of the Court. For the reasons summarised below, the Supreme Court holds that there is no supply of repair services by the garages to WHA. It is therefore unnecessary for the Court to address the other issues raised, as both strands of Project C were predicated on the conclusion that there was such a supply [18]. Decisions about the application of the VAT system are highly fact sensitive. When determining the relevant supply in which a taxable person engages, regard must be had to all the circumstances in which a transaction takes place. In cases involving a construct of contractual relationships, the matter must be assessed as a whole to determine the economic reality. The transaction between the garages and WHA must be understood in the context of the wider arrangements between the insured, NIG, Crystal, Viscount, WHA and the garage [26]. Having regard, therefore, to the agreements between NIG and the insured, NIG and Crystal, Crystal and Viscount, and Viscount and WHA, the terms of each contract envisage the role of WHA as encompassing the negotiation, investigation, adjustment, settlement and payment of claims. There is no indication that WHAs role included undertaking responsibility for the carrying out of repairs [33]. Further, the nature of the relationship between the garages and WHA does not suggest that the former provides a service to the latter [35 38]. NIG undertakes to the insured to meet the cost of repairs to a vehicle falling within the scope of the policy. It does not undertake responsibility for the repairs themselves [27, 56]. The economic reality is that the payments made by WHA to the garages merely discharge the obligation which NIG undertook to the insured to pay for the repair of a vehicle up to the value permitted by the policy in the event of a breakdown. The interposition of Viscount and Crystal in the chain of contracts linking WHA to NIG does not alter the position that WHA simply acts as the paymaster of the costs falling within the cover provided by the policies [56 57]. That conclusion is supported by further considerations. First, the deduction of input tax is meant to relieve the trader in question of the VAT payable or paid in the course of his economic activities. However, WHAs own profit and loss is unaffected by VAT as it pays the garages out of a float provided by Viscount. Secondly, the consequence of input tax deduction should be that VAT is only borne on the supply to the final consumer. The effect of dismissing this appeal is that VAT is borne on the supply of services by the garage to the final consumer, namely the insured [58].

The appellants allege that they were abducted and mistreated by agents of foreign governments and then rendered to the Libyan authorities, by whom they were imprisoned and tortured. They allege that this occurred with the involvement of Sir Mark Allen, who is said to have been a senior officer of the British Secret Intelligence Service. After an investigation by the Metropolitan Police, the Director of Public Prosecutions (DPP) declined to bring any prosecutions. The DPP based her decision on a senior prosecutors decision and on legal advice that there was insufficient evidence to prosecute for any offence subject to the criminal jurisdiction of the United Kingdom. After an internal review by the Crown Prosecution Service (CPS) at the appellants request, another senior prosecutor reached the same decision. The CPS declined to disclose the potential evidence to the appellants, citing its security marking. In separate proceedings, the appellants have sued the British government for damages. On 20 October 2016, the appellants issued the present proceedings in the High Court, seeking judicial review of the failure to prosecute Sir Mark Allen, who is alleged to have been the primary suspect in the investigation. They argue, amongst other things, that the DPPs decision was inconsistent with the evidence. The DPP argues that her decision was based on a review of documents which cannot be released to the appellants. The Foreign Secretary applied to the court under section 6 of the Justice and Security Act 2013 for a declaration that the judicial review proceedings were proceedings in which a closed material application may be made to the court. A section 6 declaration is a prerequisite for an application to the Court for the use of closed material procedure under Part 82 of the Civil Procedure Rules, whereby the court may sit in private and without a party and his or her legal representative in order to prevent disclosures damaging to the interests of national security. A section 6 application may be made only to a court seized of relevant civil proceedings, which are defined as not including proceedings in a criminal cause or matter. The appellants resisted the section 6 application on the basis that these judicial review proceedings were in a criminal cause or matter. The Divisional Court rejected that argument but certified the issue as one of public importance, suitable for consideration by the Supreme Court. The proceedings were settled after argument before the Supreme Court, but the Court gives judgment in view of the importance of the legal issue. The Supreme Court allows the appeal by a majority of three to two. Lord Sumption gives the lead judgment, with which Lady Hale agrees. Lord Mance gives a concurring judgment. Lord Lloyd Jones gives a dissenting judgment, with which Lord Wilson agrees. The adoption of closed material procedure requires specific statutory authority. The Justice and Security Act 2013 gave the High Court a general statutory power, in certain circumstances, to receive closed material which is disclosed only to the court and to a special advocate. As explained in the 2011 Justice and Security Green Paper, the Act was a response to a growing number of civil claims for damages against which the government was unable to defend at trial except through the unacceptably damaging disclosure of secret material. Those claims instead had to be settled [6 7]. The ordinary and natural meaning of proceedings in a criminal cause or matter includes proceedings by way of judicial review of a decision made in a criminal cause, and nothing in the context or purpose of the legislation suggests a different meaning. In English criminal procedure many decisions made in ongoing or prospective criminal proceedings are subject to judicial review in the High Court. Judicial review therefore cannot be regarded as an inherently civil proceeding. It is an integral part of the criminal justice system [15 16]. Judicial interpretations of the phrase criminal cause or matter in the Judicature Acts primarily reflected the natural meaning of the words, rather than any special feature of the Acts. A cause is a proceeding, civil or criminal, actual or prospective, before a court. A matter is something wider, namely a particular legal subject matter, although arising in a different proceeding. The appellants application is an attempt to require the DPP to prosecute Sir Mark Allen. That is just as much a criminal matter as the original decision not to bring a prosecution. Parliament is unlikely to have intended to distinguish between different procedures having the same criminal subject matter and being part of the same criminal process; but the draftsman could have done so easily, for example by omitting the reference to a matter [17 20]. The Green Paper indicates that the distinction between criminal and civil proceedings in section 6 reflected the greater degree of control exercisable by the government in criminal cases, in which the prosecution can: (i) chose the material on which it relies, (ii) seek to limit the disclosure of unused material on the grounds of public interest immunity; and (iii) withdraw the prosecution. That rationale does not require closed material procedure to be available in an ancillary judicial review of a decision made as an integral part of the criminal justice process, when it would not be available for an actual criminal trial [22 24]. Lord Mance agrees that the appeal should be allowed, essentially for the same reasons as Lord Sumption [25 37]. Lord Lloyd Jones, with whom Lord Wilson agrees, would have dismissed the appeal. He concludes that the natural meaning and use of the word cause is appropriate to cover criminal proceedings which will result in a criminal conviction or acquittal, and that the word matter may extend beyond that to ancillary applications in such criminal proceedings (such as disclosure applications and extradition proceedings). They do not, however, naturally include this judicial review, which is a public law challenge extraneous to the criminal process. It is permissible to refer to the Green Paper in order to discern the purpose of the exclusion of proceedings in a criminal cause or matter from closed material procedure. The core concern behind the exclusion is to ensure that closed material procedure is unavailable where criminal guilt is being decided. These proceedings do not fall within the purpose of the exclusion [52 57].

The appeal concerns the dismissal of Ms Jhuti, the appellant, from her employment by Royal Mail Group Ltd (the company). The key question of law that it raises is as follows: in a claim for unfair dismissal under Part X of the Employment Rights Act 1996 (the Act), can the reason for the dismissal be other than that given to the employee by the employers appointed decision maker? The facts found by the employment tribunal (the tribunal) in this case included the following. During her trial period, Ms Jhuti made protected disclosures under section 43A of the Act, commonly described as whistleblowing. Her line managers response was to pretend that her performance was inadequate, including by bullying her and by creating, in emails and otherwise, a false picture of her performance. The company appointed another employee to decide whether Ms Jhuti should be dismissed. Ms Jhuti, who had in the meantime been signed off work for work related stress, anxiety and depression, was unable to present her case to the decision maker in meetings or otherwise. Having no reason to doubt the truthfulness of the material indicative of Ms Jhutis inadequate performance, the decision maker decided that she should be dismissed for that reason. Ms Jhuti brought two complaints in the tribunal. The first complaint (on which nothing in the present appeal turns directly) was that, contrary to section 47B(1) of the Act, she had been subjected to detriments by acts of the company done on the ground of her whistleblowing. The second complaint was that her dismissal was unfair under section 103A, which provides that a dismissal is unfair if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure. The tribunal dismissed this second complaint. It found that, as the decision maker had dismissed her on the ground of a genuine belief that her performance had been inadequate, the reason for dismissal was her performance and so section 103A did not apply. The Employment Appeal Tribunal (the EAT) reversed this decision, holding that the reason for dismissal was the making of the protected disclosures. The Court of Appeal allowed the companys appeal against the EATs decision and reinstated the tribunals dismissal of the complaint of unfair dismissal. It held that a tribunal required to determine the reason for dismissal under section 103A was obliged to consider only the mental processes of the employers authorised decision maker. Ms Jhuti appealed to the Supreme Court. The Supreme Court unanimously allows the appeal. It sets aside the part of the Court of Appeals order allowing the companys appeal against the EATs order and reinstates the latter order. Lord Wilson gives the only judgment, with which the other Justices agree. The question is whether the tribunal correctly identified the reason (or, if more than one, the principal reason) for the dismissal under section 103A, which relates specifically to whistleblowing. But these words also appear elsewhere in Part X, including in section 98, the general provision for unfair dismissal. So the courts answer must relate equally to those other sections [39]. While the question seems to be of wide importance, however, the facts of this case are extreme: instances of decisions to dismiss taken in good faith, not just for a wrong reason but for a reason which the employees line manager has dishonestly constructed, will not be common [40 41]. When applying a rule to a company which requires attributing to it a state of mind, it is necessary to consider the language of the rule (if it is a statute), as well as its content and policy [42 43]. By section 103A, Parliament clearly intended to provide that, where the real reason for dismissal was whistleblowing, the automatic consequence should be a finding of unfair dismissal [44 45]. The Court of Appeal in this case determined that, when an employees line manager hides the real reason behind a fictitious reason, the latter is to be taken as the reason for dismissal if adopted in good faith by the decision maker [46]. It considered itself bound by its earlier decision in Orr v Milton Keynes Council [2011] EWCA Civ 62, [2011] ICR 704 (Orr), which held that it was the knowledge only of the decision maker which fell to be attributed to the employer for the purposes of section 98 [47 49]. Yet, for various reasons, Orr was not a satisfactory vehicle for the articulation of principle; nor were its facts comparable to those in the present case [50 53]. The company, in opposing the attribution to it of the knowledge of Ms Jhutis line manager, argues that section 47B of the Act already gives protection to whistleblowers, such that there is no reason to construe section 103A as capturing reasons for dismissal other than the decision makers [54]. Section 47B protects workers from being subjected to detriment by acts of the employer (subsection (1)), or of another worker (subsections (1A) to (1E)). In the latter case the employer is liable for the other workers acts [55]. But the tribunal attributed to the company the acts of Ms Jhutis line manager which it found to have caused detriment to her, and held that subsection (1), rather than subsections (1A) to (1E), applied. This attribution to the company (which it does not challenge) of acts which it could not have authorised had it known of the circumstances surrounding them provides no support for its approach to attribution under section 103A [56]. The wider dimension of the companys argument based on section 47B is that the right it gives to workers in Ms Jhutis position affords to them all the relief they could reasonably expect [57]. Yet Parliament has, by section 103A, provided that a dismissal should automatically be unfair where an employees whistleblowing is the reason for it. It has also, by section 47B(2), withdrawn the protection of that section from whistleblowers subjected to a detriment which amounts to dismissal [58]. It is therefore obvious that whistleblowers are not confined to remedies under section 47B [59]. In searching for the reason for a dismissal, courts need generally look only at the reason given by the decision maker. But where the real reason is hidden from the decision maker behind an invented reason, the court must penetrate through the invention [60 61]. So the answer to the appeals key question is, yes, if a person in the hierarchy of responsibility above the employee determines that she should be dismissed for one reason but hides it behind an invented reason which the decision maker adopts, the reason for the dismissal is the hidden reason rather than the invented reason [62].

The principal issue on this appeal concerns the meaning of the word makes in section 60(1)(a) of the Patents Act 1977 (the 1977 Act), which provides that a person infringes a patent for a particular product if he makes the product without the consent of the patentee. This issue arises in respect of European Patent (UK) 0 734 967 (the Patent), of which Protechna S.A. (Protechna) is the proprietor. Claim 1 of the Patent (the Claim) extends to certain aspects of a complete intermediate bulk container (IBC). An IBC is a large container used by suppliers of liquids (fillers), for the transport of a wide range of liquids to a so called end user. IBCs of a two part construction consist of a metal cage into which a large plastic container (or bottle) is fitted. Often, the bottle cannot be reused, because it contains residues of a toxic liquid or because it has been physically damaged. The inventiveness of the Patent lies in the idea of flexible weld joints to the cage, to increase its strength and durability, and in the idea of introducing a dimple on either side of the weld and a central raised portion. The description of the Patent acknowledges that the bottle is exchangeable (i.e. replaceable). The cage has a life expectancy on average five or six times longer than a bottle, which is why so called reconditioners engage in re bottling or cross bottling used IBCs. In either case, the old bottle is removed, any damage to the cage is repaired, and a new bottle is fitted within the cage. Re bottling involves replacing the bottle with a fresh bottle from the original manufacturer, whereas cross bottling involves replacing the bottle with a bottle from a different source. After re bottling or cross bottling an IBC, the reconditioner offers the reconditioned product to fillers on the market, in competition with the products of original manufacturers, and of other reconditioners. Schtz (U.K.) Limited (Schtz) is the exclusive licensee of Protechna, and the leading manufacturer of rigid composite IBCs, in the United Kingdom. Werit UK Limited (Werit) sells bottles (Werit bottles) for IBCs to a reconditioner, Delta Containers Limited (Delta). Delta acquires discarded IBCs originally put on the market by Schtz (Schtz IBCs), replaces the original bottles (Schtz bottles) with Werit bottles, and then offers these cross bottled IBCs on the market. These cross bottled IBCs are therefore in competition with the original Schtz IBCs. Schtz objected to Deltas cross bottling activities, and issued proceedings against Werit, seeking relief on the ground that Werit infringed the Patent. It is common ground that, if Delta thereby infringes the Patent, Werit does so. Two issues arising from those proceedings are relevant to the present appeal. The first issue is whether Delta infringed the Patent by mak[ing] the article claimed by the Claim, contrary to section 60(1)(a) of the 1977 Act. The second issue, which arises only if it is found that Delta infringes the Patent, concerns costs sanctions in such proceedings under section 68 of the 1977 Act (the section 68 issue). At first instance, Floyd J held that Deltas cross bottling activities do not amount to making the patented product, on the ground that the inventive concept of the Claim is wholly embodied in the Schtz cage. The Court of Appeal considered that it was inappropriate to determine the issue by reference to the inventive concept, and held that Deltas cross bottling activities do amount to making the patented product, on the basis that the Schtz IBC ceases to exist when the Schtz bottle is removed, and all that remains at that stage is merely an important component from which a new IBC could be made. The Supreme Court unanimously allows Werits appeal and holds that Delta did not make the patented article contrary to section 60(1)(a) of the 1977 Act. Lord Neuberger gives the judgment of the Court. This decision renders Werits appeal on the section 68 issue academic, but because the issues that appeal raises were fully argued, Lord Neuberger provides some guidance on how the costs sanctions under section 68 of the 1977 Act work [80] [107]. The central issue is whether Delta makes a patented article when it removes a damaged Schtz bottle from a Schtz cage, and replaces it with a Werit bottle. The word makes does not have a precise meaning. It must be interpreted contextually, by reference to the facts of the particular case, and in a practical way, bearing in mind that the precise scope of a claim may be a matter almost of happenstance. It must also be given a meaning which, as a matter of ordinary language, it can reasonably bear. There is a need for clarity and certainty for patentees and others, and for those advising them. It should also be borne in mind that the word makes applies to patents for all sorts of product. Moreover, there is a need to protect the patentees monopoly while not stifling reasonable competition [26] [29]. Therefore, it will inevitably be a matter of fact and degree in many cases whether an activity involves making an article [26],[57],[58],[72],[78]. Observations about the meaning of make in a different legal or factual context from that under consideration should be approached with caution because of the somewhat slippery nature of the meaning of the word, and the very important role which context plays in determining whether a particular activity involves making an article [53]. The mere fact that an activity involves replacing a constituent part of an article does not mean that the activity involves the making of a new article, rather than constituting a repair of the original article. One must, however, avoid simply contrasting making and repairing, not least because these concepts may well overlap. That said, it may sometimes be useful to consider whether the alleged infringer is repairing rather than making the article, because repair of an item frequently involves replacement of one or some of its constituents [48] [50]. It is both legitimate and helpful to consider the question whether the bottle is such a subsidiary part of the patented article that its replacement, when required, does not involve making a new article [61]. While undoubtedly an essential and physically large part of the patented article, four factors indicate that the bottle can fairly be said to be a relatively subsidiary part of the IBC, when that article is viewed as a whole [64]. (i) The bottle has a significantly lower life expectancy than the cage [65] [66]. (ii) The bottle does not include any aspect of the inventive concept of the Patent [67] [69]. (iii) The bottle is a free standing item of property [70]. (iv) The damaged free standing bottle is simply replaced within the metal cage, which contains the inventive concept, and the metal cage is repaired if necessary [71]. The question whether the end user is paid for a used IBC could be of relevance [74], although there was no evidence which can fairly enable assessment of this factor [75], and it is very unlikely that any such evidence would have affected the outcome [76]. This case represents a classic example of identifying the various factors which apply on the particular facts, and, after weighing them all up, reaching a conclusion on infringement. Given that (a) the bottle (i) is a freestanding, replaceable component of the patented article, (ii) has no connection with the claimed inventive concept, (iii) has a much shorter life expectancy than the other, inventive, component, (iv) cannot be described as the main component of the article, and (b) apart from replacing it, Delta does no additional work to the article beyond routine repairs, Delta does not make the patented article [78].

In 2004, the Respondent, Mrs Rae, sold land to Ransom Developments Ltd (RDL). Her disposition contained the words and I grant warrandice. In Scots law, warrandice is a contractual warranty of title given impliedly if not expressly by a seller to a purchaser. The seller will only be obliged to indemnify the purchaser in respect of losses suffered as a result of a defect in title if the purchaser is evicted from the property, although actual removal is not required. In this case, the warrandice was absolute, meaning that a warranty was given against all defects in title at the time the disposition was delivered. When RDL attempted to complete its title to the land by registering it in the Land Register of Scotland, the Keeper of the Registers informed RDLs solicitors that the Respondent had never had title to part of the land which she had sold to RDL. That part (the disputed part) was truly owned by James Craig Ltd (JCL). The title to the disputed part was in fact held by a Mr Lynch, the disputed part having been transferred by JCL to him in error in 1991. In 2005, JCL threatened to evict RDL from the land. RDL paid 70,000 to JCL to avoid eviction. JCL procured the grant of a disposition of the disputed part by Mr Lynch to RDL in 2006. RDLs title to the land (including the disputed part) was then registered. In 2007 RDL went into liquidation and assigned its rights to the Appellant, Mr Morris. These were the basic facts which the Appellant offered to prove in his action against the Respondent for breach of warrandice. There has not yet been an evidential hearing. At a preliminary stage, the Respondent attacked the relevancy of the Appellants case, arguing that even if the Appellant proved everything that he offered to prove, he could not succeed in his claim. Following a debate, the Temporary Judge (Rita Rae QC) rejected this argument and allowed the case to proceed. The Respondent successfully reclaimed (appealed) to an Extra Division of the Inner House of the Court of Session, who by a majority dismissed the action as irrelevant. [48 and 3336] In the course of his appeal to the Supreme Court, the Appellant offered to prove that when JCL made the eviction threat, RDL and JCL both believed that JCL held title to the disputed part, neither being aware that the title had in error passed to Mr Lynch; that if the error had been discovered, JCL would have been immediately able to secure title to the disputed part from Mr Lynch; and that no proceedings or proof of title would have been required to establish JCLs title to the disputed part. All the facts which the Appellant offers to prove are assumed for the purposes of the appeal which is concerned with whether or not the Appellant is entitled to prove his case. [910 and 3738] The issues in the appeal are whether the person who makes the threat of eviction has to have an unquestionable title to the property at the time when the threat is made and, if not, what the purchaser in those circumstances has to show in order to trigger the sellers liability under the warrandice. [12, 24 and 39] The Supreme Court unanimously allows the appeal. The Appellant is entitled to the opportunity to prove his case. The leading judgments are given by Lords Hope and Reed, who agree with each other, and with both of whom Lords Walker, Sumption, and Carnwath agree. It is not always essential that the threat of eviction should be made by the person who has a title to the property at the time when the threat is made. This is consistent with principle and the practical purpose and rationale of the law of warrandice, which, in order to avoid pointless delay, expense and litigation, permits a purchaser who accedes to a threat, without any judicial determination, to claim against the seller for breach of warrandice. It would be wrong if the law were to maintain that the purchaser can rely on the sellers warrandice only if he accedes to a threat made by the title holder who may have no interest in evicting the purchaser and not a third party who, although not yet having obtained title, has an interest in evicting the purchaser. [2526, 4952 and 56] There must of course be a competing title which will prevail in a question with the purchaser. If the purchaser buys off the threat, he must be able to show that he transacted with the right person (being the person who has a title and interest to make good the threat) and that the threat was capable of being made effective. It will be good enough for the person making the threat to have an incomplete title if he is undoubtedly in a position to compel the title holder to transfer the title to him or, if the threat is bought off, to the purchaser. [2627] In other words, the purchaser must, objectively, have no realistic alternative but to accede to the threat of eviction. Whether such an alternative exists in particular circumstances must be a matter of judgment on the facts. It is likely that no such alternative will exist in a situation where the person making the threat has an unqualified entitlement, exercisable immediately, to demand a transfer of the title currently vested in another person, and upon such a transfer will undoubtedly be entitled to evict the purchaser. [56] In the present case, the Appellant is offering to prove that JCL would have been immediately able to secure title to the disputed part without the need for proceedings by demanding a transfer of the title vested in Mr Lynch, and that RDL would have had no defence to JCLs threat of eviction. He has therefore set out a relevant case against the Respondent. [32 and 57]

This appeal concerns the application of the anti deprivation rule, a principle of insolvency law that contractual terms purporting to dispose of property on bankruptcy may be invalid as being in fraud or an evasion of the bankruptcy law. This appeal arises out of the insolvency of the Lehman Brothers group, including the Appellant group company, Lehman Brothers Special Financing Inc (LBSF). The commercial context of the dispute is complicated. In October 2002 Lehman Brothers International (Europe) (LBIE) established a synthetic debt repackaged note issuance programme, called the Dante programme. The purpose of the Dante programme was to provide or mimic a form of credit insurance to LBSF against credit events (such as failure to pay, bankruptcy and restructuring) which occurred within the reference portfolio of obligations owed by specified reference entities (the reference portfolio). The commercial purpose of the transaction was achieved through the issue of the so called synthetic credit linked notes by special purpose vehicles (the issuer) set up in tax friendly jurisdictions. The investors in the notes (the noteholders), including the Respondents, were Australian local authorities, pension funds, private investment companies and private individuals. The subscription proceeds paid by the investors for the notes were used by the issuer to purchase secure investments (the collateral) which was then vested in a trust corporation (the trustee). In order to service the interest payments under the notes, the issuer entered into a swap agreement with LBSF under which LBSF received the income (or yield) on the collateral and, in return, paid the issuer the amount of interest due to the noteholders under the terms of the notes. The amount by which the sum payable under the swap agreement by LBSF exceeded the yield on the collateral represented the premium for the, in effect, credit insurance provided by the noteholders. It was further agreed that on maturity of the notes (or on early redemption or termination), LBSF would pay the issuer an amount equal to the initial principal amount subscribed by the investors less amounts calculated by reference to credit events occurring in the reference portfolio and in return would receive the sum equal to the proceeds of sale of the collateral, thereby giving effect to the insurance aspect of the programme. To ensure LBSFs recovery, the trustee was instructed to apply all proceeds from the collateral, first, in meeting the issuers obligations to LBSF and only then in meeting the issuers obligations to the noteholders. However, LBSF would loose its priority claim to the collateral if it was in default under the swap, triggering a change in priority in favour of the noteholders, the so called flip. The events of default under the swap were numerous and, for present purposes, included filing for Chapter 11 protection by Lehman Brothers Holdings Inc (LBHI) on 15 September 2008 and by LBSF on 3 October 2008. In reliance on the latter event, and following a direction from the noteholders, the trustee caused the issuer to terminate the swap with LBSF. This early termination triggered the payment of unwind costs (the market assessment of the net amount either party to the swap would have received were it to run to maturity) to LBSF. At the same time, LBSFs event of default caused the priority of claims against the collateral to change in favour of the noteholders. Given that the issuers obligations to the noteholders and to LBSF were limited to the value of the collateral and that the total claims by the noteholders and LBSF exceeded the value of the collateral, this change in priority effectively deprived LBSF of a chance to recover its unwind costs. As a result, LBSF sought to challenge the validity of the flip on the basis that it breached the anti deprivation principle. LBSFs position was that its rights to the unwind costs and the priority it enjoyed over the collateral formed part of LBSFs insolvent estate of which it was deprived on change of priority following LBSFs bankruptcy. Both the High Court and the Court of Appeal upheld the contractual arrangements. Sir Andrew Morritt C found that the contractual provisions did not offend the anti deprivation rule; or, alternatively, that the rule was not engaged since the flip was triggered by an earlier LBHI Chapter 11 filing and thus LBSFs Chapter 11 filing did not deprive it of any property. In the Court of Appeal, Lord Neuberger MR (with whom Longmore LJ agreed) found the flip provisions valid in reliance, to a large extent, on the fact that the collateral was acquired with money provided by the noteholders. Patten LJ thought that the rule did not apply because a change of priority was always a feature of the security arrangements. The Supreme Court unanimously dismissed LBSFs appeal and upheld the validity of contractual provisions. The lead judgment was given by Lord Collins, with whom Lord Phillips, Lord Hope, Lord Walker, Lady Hale and Lord Clarke agreed. Lord Mance agreed with the majoritys conclusion but for different reasons. Issue 1 the anti deprivation rule Having examined the application of the anti deprivation rule over the last 200 years, Lord Collins held that the rule is too well established to be discarded despite the detailed provisions set out in insolvency legislation, all of which must be taken to have been enacted against the background of the anti deprivation rule: [102]. Lord Collins identified the following limits of the rule. First, a deliberate intention to evade insolvency laws is required, although such intention need not be subjective. Thus a commercially sensible transaction entered into in good faith should not be held to infringe the anti deprivation rule: [78] [79]. Secondly, the anti deprivation rule does not apply if the deprivation takes place for reasons other than bankruptcy: [80]. Thirdly, the distinction between an interest determinable on bankruptcy (the so called flawed asset), which is outside the anti deprivation rule, and an absolute interest defeasible on bankruptcy by a condition subsequent, which falls foul of the rule, is too well established to be dislodged otherwise than by legislation: [87] [88]. However, not every proprietary right expressed to determine or change on bankruptcy is valid, still less a deprivation which has been provided for in the transaction from the outset: [89]. Fourthly, the source of the assets is an important element in determining whether there had been a fraud on the bankruptcy laws: [96]. However, there is no general exception to the anti deprivation rule based simply on the source of the assets: [98]. Lord Collins concluded that commercial sense and absence of intention to evade insolvency laws are highly relevant factors in the application of the anti deprivation rule and that the rule does not apply to bona fide commercial transactions which do not have as their predominant purpose, or one of their main purposes, the deprivation of the property of one of the parties on bankruptcy: [103] [104]. Since the contractual provisions challenged in the present appeal were part of a complex commercial transaction entered into in good faith, the collateral was in substance provided by the noteholders and there was no suggestion that the flip provisions were deliberately intended to evade insolvency law, they did not offend the anti deprivation rule: [108] [113]. Lord Mance agreed that the insolvency legislation has not made redundant the common law anti deprivation principle: [150] [151]. However, he would have dismissed this appeal on the basis that LBSF could not be regarded as having been deprived of any property. On his reading of the documentation, LBSF could not be said to enjoy the contractual priority until the occurrence of certain events. Thus once an event of default under the swap occurred, LBSF was not deprived of the priority but simply prevented from acquiring it in the first place: [168]. Even if LBSF was deprived of its property, the flip simply amounted to a contractual termination of the future reciprocal obligations of the parties, the performance of each of which is the quid pro quo of the other, and thus did not constitute an illegitimate evasion of the bankruptcy laws: [178] [180]. Issue 2 the timing of the deprivation Given the conclusion on issue 1, the question of whether LBHIs earlier bankruptcy (as argued by the Respondents) rather than LBSFs bankruptcy constituted the relevant event of default which triggered the operation of the flip did not arise. Lord Collins would have dismissed the Appellants argument on this point: [118] [120]. Lord Mance, although sceptical of the Respondents argument, preferred not to express a view on this issue: [181] [183].

Mr Alvi is a citizen of Pakistan. In September 2003 he entered the UK as a student, with leave to remain until 31 January 2005. After completing his studies he applied for leave to remain here as a physiotherapy assistant. On 10 February 2005 he was granted leave to remain as a qualifying work permit holder until 10 February 2009 and for the next four years worked here as a physiotherapy assistant. On 9 February 2009 he applied for further leave to remain in the UK. A few months prior to that date the work permit regime had been replaced by a points based system. It came into effect on 27 November 2008. So Mr Alvi applied for leave to remain under that system as a Tier 2 (General Migrant). His application was refused on 18 June 2009 because the Secretary of State was not satisfied that his salary was appropriate for a job at the required level. On 21 September he applied for judicial review of the Secretary of States decision. On 9 February 2010 the refusal of 18 June 2009 was replaced by a revised decision letter, which stated that Mr Alvi did not satisfy the requirements of the Immigration Rules for the relevant category because his job title as an assistant physiotherapist was not of the level of skilled occupations required by the rules. This was because the job title was not a job that was at or above NVQ or SVQ level 3, as stated in the relevant Codes of Practice document. Paragraph 82 of Appendix A to the Immigration Rules states that no points will be awarded for sponsorship unless (a) the job in question appears on the UK Border Agencys list of skilled occupations, and (b) the salary that the migrant will be paid is at or above the appropriate rate for the job as stated in that list of skilled occupations. The list of skilled occupations is found in Occupation Codes of Practice published by the Secretary of State on the website of the UKBA. In some cases, the migrant must also indicate that the sponsor has met the requirements of the resident labour market test, as defined in guidance published by the UKBA. Mr Alvi applied for judicial review of the decision, on the principal ground that the list of skilled occupations was not part of the Immigration Rules, as the document in which that list was set out had not been laid before Parliament under section 3(2) of the Immigration Act 1971. That section requires the Secretary of State to lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed in the administration of this Act for regulating the entry into and stay in the United Kingdom of persons required by this Act to have leave to enter. His claim was dismissed on 25 October 2010 by the High Court, which concluded that it was not the intention of Parliament that the list of skilled occupations, found on the UKBAs website in the Tier 2 Codes of Practice, should be an intrinsic part of the Immigration Rules or subject to specific Parliamentary approval. On 9 June 2011, the Court of Appeal allowed Mr Alvis appeal and quashed the Secretary of States decision of 9 February 2010 to refuse his application for leave to remain. The Secretary of State appeals to this Court. The Supreme Court unanimously dismisses the Secretary of States appeal. The main judgments are given by Lord Hope and Lord Dyson. Lord Walker, Lord Clarke and Lord Wilson give short concurring judgments. The question at the heart of the appeal is whether the reference in paragraph 82(a)(i) of Appendix A to the United Kingdom Border Agencys list of skilled occupations was sufficient to satisfy the requirements of section 3(2) of the 1971 Act. Neither the statement in the preface to the list that the job must be skilled at N/SVQ level 3 or above nor the list itself which showed that Mr Alvis occupation was below that level formed part of the Immigration Rules as laid before Parliament. Were these provisions rules within the meaning of s3(2) of the 1971 Act [21]? First, the Court rejects the submission that it is open to the Secretary of State to control immigration in a way not covered by the Immigration Rules, at common law under the Royal prerogative. The rules are not subordinate legislation. They are to be seen as statements by the Secretary of State as to how she proposes to control immigration. But the scope of her duty is now defined by the statute. The obligation under section 3(2) of the 1971 Act to lay statements of the rules, and any changes in the rules, cannot be modified or qualified in any way by reference to the common law [33]. Everything which is in the nature of a rule as to the practice to be followed in the administration of the Act must be laid before Parliament. Resort to the technique of referring to outside documents, which the Scrutiny Committee of the House of Lords can ask to be produced if it wishes to see them, is not in itself objectionable. But it will be objectionable if it enables the Secretary of State to avoid her statutory obligation to lay any changes in the rules before Parliament [41]. None of the solutions offered in previous cases as to where the line must be drawn in order to determine what is or is not a rule which requires to be laid before Parliament is entirely satisfactory [53, 92]. A more appropriate approach is to concentrate on the word rule: it ought to be possible to identify from an examination of the material in question, taken in its whole context, whether or not it is of the character of a rule or is just information, advice or guidance as to how the requirements of a rule may be met in particular cases [63]. Some of the content of the Occupation Codes of Practice on the UKBAs website is just guidance for sponsors and caseworkers. But the Codes also contain material which is not just guidance, but detailed information the application of which will determine whether or not the applicant will qualify [56 57]. Any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). So a fair reading of section 3(2) requires that it be laid before Parliament [57, 94, 97, 122, 128]. Whether the job that the applicant is applying for or occupies is above or below N/SVQ level 3 will determine whether or not it meets the requirements of the skilled migrant tier. It is a criterion which must be satisfied [61]. Therefore, statements in the Code that all qualifying jobs must be skilled at N/SVQ level 3 or above and that the job of a physiotherapy assistant is below that level both set out rules that ought to have been laid before Parliament under section 3(2) of the 1971 Act. As they were not laid, it was not open to the Secretary of State to rely on them as part of the Immigration Rules [66, 102, 115]. The question whether or not the required salary rates and the resident labour market test are rules for the purposes of section 3(2) does not require to be decided in order to dispose of this appeal. However, the Court unanimously considers that information as to what the required salary rate is has the character of a rule. As the rules do not set out any objective criterion that is to be applied to determine the amount of any increases, the question whether there should be increases and, if so, by how much, is left to the discretion of the Secretary of State. It follows that the rates themselves, and any changes to them, must be laid before Parliament [59, 102]. As regards the resident labour market test, where it applies, Lord Dyson, Lord Clarke and Lord Wilson consider that, since the requirements include advertising the post in the specified newspapers, journals and websites, any changes in these requirements are changes in the rules which must be laid before Parliament [106, 124, 129]. Lord Hope agrees that the requirement to meet the resident labour market test is a rule, as it includes the requirement that the job be advertised and that the sponsor give details of where and when the post was advertised. However, he considers that information as to where the job may be advertised does not itself amount to a rule that is determinative [58]. Lord Walker prefers to express no opinion on this issue [109]. It is acknowledged that the volume of material that will now have to be laid to give effect to the courts judgment will impose a heavy burden on Parliament, and on the Secondary Legislation Scrutiny Committee of the House of Lords in particular. Methods of communication today are very different from what they were in 1971 when the statutory requirement, which involves laying hard copies of every paper that has to be laid in each House, was introduced. The court questions whether the current system, which is now over forty years old, is still fit for its purpose today. But any changes to it must be a matter for Parliament [65, 109, 128].

Three companies (which can be conveniently referred to as Vestergaard) developed techniques (the techniques) which enabled them to manufacture and sell long lasting insecticidal nets. The purpose of a long lasting insecticidal net (LLIN) is to prevent the sleeper from being bitten by mosquitoes, and also to reduce the mosquito population. From 2000 to 2004, Mrs Trine Sig and Mr Torben Larsen were employed by Vestergaard. Their employment contracts contained provisions requiring them to respect the confidentiality of Vestergaards trade secrets. In 2004, Mrs Sig and Mr Larsen resigned from Vestergaard. They formed a Danish company, Intection, which started to carry on a business in competition with Vestergaard, manufacturing and selling new LLINs under the name Netprotect. Dr Ole Skovmand, who worked as a consultant to Vestergaard from 1998 to 2005, and played a major role in developing the techniques, agreed to assist Mrs Sig and Mr Larsen to manufacture Netprotect. Eventually, tests proved sufficiently successful for Intection to arrange a launch for the new product. Vestergaard issued proceedings in Denmark against Intection to stop the testing and future marketing of Netprotect. The day before proceedings were due to be heard, Mrs Sig resigned as a director of Intection, which then ceased to trade. A new English company, Bestnet Europe Ltd (Bestnet), was immediately formed, with Mrs Sig as the sole director, and Dr Skovmand as one of the shareholders. Mrs Sig and Mr Larsen provided their services to Bestnet through another English company, 3T Europe Ltd (3T). Dr Skovmand worked directly for Bestnet in connection with the testing, development, and projected manufacturing and marketing of Netprotect. From 2006, Netprotect LLINs were manufactured for and marketed by Bestnet. Vestergaard brought proceedings in England against Bestnet, 3T, Mr Larsen, and Mrs Sig, seeking damages and other relief for misuse of Vestergaards confidential information. In two judgments, Arnold J found that the techniques constituted confidential information in the form of trade secrets owned by Vestergaard, and that Dr Skovmand, Mr Larsen, Mrs Sig, Bestnet, and 3T, were liable for breach of confidence to Vestergaard. A number of the aspects of the two judgments were appealed. The Court of Appeal, in a judgment given by Jacob LJ (with which Jackson LJ and Sir John Chadwick agreed), upheld Arnold J on all points, save one, which is the subject of this appeal. That point was Arnold Js finding that Mrs Sig was liable to Vestergaard for breach of confidence, which the Court of Appeal reversed. Before the Supreme Court, Vestergaard argued that Mrs Sig is liable for breach of confidence on three different bases: (i) under her employment contract, either pursuant to its express terms or to an implied term; (ii) for being party to a common design which involved Vestergaards trade secrets being misused; (iii) for being party to a breach of confidence, as she had worked for Vestergaard, and then formed and worked for the companies which were responsible for the design, manufacture and marketing of Netprotect. The Supreme Court unanimously dismisses the appeal. Lord Neuberger gives the judgment of the Court. Vestergaards arguments fail because of the combination of two crucial facts: (i) Mrs Sig did not herself ever acquire the confidential information in question; and (ii) until some point during these proceedings, Mrs Sig was unaware that Netprotect had been developed using Vestergaards trade secrets [21]. An action for breach of confidence is based ultimately on conscience. In order for the conscience of the recipient to be affected, she must have information which she has agreed, or knows, is confidential, or she must be party to some action which she knows involves the misuse of confidential information [23]. Given that Mrs Sig knew neither of the identity of Vestergaards trade secrets, nor that they were being, or had been, used, it would seem to follow that Mrs Sig should not be liable for breaching Vestergaards rights of confidence [22]. More broadly, the law has to maintain a realistic and fair balance between (i) effectively protecting trade secrets and other intellectual property rights, and (ii) not unreasonably inhibiting competition in the market place. The protection of intellectual property, including trade secrets, is a vital contribution of the law to research and development. However, the law should not discourage former employees from benefitting society and advancing themselves by imposing unfair potential difficulties on their honest attempts to compete with their former employers [44], and it would be inconsistent with maintaining that balance to hold Mrs Sig liable to Vestergaard [45]. Mrs Sig is not liable for breach of confidence under any of the three alleged bases. (i) The express provisions of Mrs Sigs employment contract are of no assistance to Vestergaards case [30], and it is not seriously arguable that a term can properly be implied into the contract which would render her liable in the circumstances of this case [31]. (ii) Mrs Sig cannot be liable under common design. Although she was party to the activities which may have rendered other parties liable for misuse of confidential information, she neither had the trade secrets nor knew that they were being misused [34] [35]. Vestergaard cannot be entitled to damages from Mrs Sig in respect of losses suffered from misuse of their trade secrets at a time when she was honestly unaware of the fact that there had been any misuse of their trade secrets. A defendant can only be liable under common design if she shares with others the essential elements which renders the design unlawful [34],[39]. (iii) To find that Mrs Sig was wilfully blind to the fact that Dr Skovmand was using Vestergaards trade secrets would require a finding against Mrs Sig of dishonesty. The judge did not make any such finding, and there was no basis for making any such finding [42]. It is not enough to render a defendant secondarily liable for misuse of trade secrets by another to establish merely that she took a risk in acting as she did [43].

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

BA and PE were each served a deportation order after unsuccessful appeals on human rights and asylum grounds against the decision to deport them. Both unsuccessfully made further submissions to the Secretary of State in an attempt to have the order revoked. They then applied to judicially review the decision not to revoke the deportation order, maintaining that their removal from the United Kingdom would be in breach of their human rights. (Paras [3] [5]) This appeal concerns whether, once a claimant has had his appeal against a decision of the Secretary of State determined, he can make another appeal in country on the same grounds which were rejected on the earlier occasion. The Secretary of State argued that a repetitive claim did not fall within section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002, which provides for an in country appeal where the claimant has made an asylum claim, or a human rights claim whilst in the UK. The Secretary of State argued that where, as in BAs case, further representations have not been advanced as a fresh claim as defined under rule 353 of the Immigration Rules, or, as in PEs case, have not been accepted as such by the Secretary of State, they can only be considered out of country and that there is no obstacle to the deportations. (Paras [8]; [13] [15]) The appeal by the Secretary of State is dismissed by a majority of four to one. A claim for asylum which has been rejected should be allowed to proceed to appeal in country under sections 82 and 92 of the Nationality, Immigration and Asylum Act 2002, unless it has been certified as clearly unfounded under section 94 or excluded under section 96. This should be so whether or not the Secretary of State has accepted it as a fresh claim. (Paragraph [32]) Lord Hope gave the majority judgment of the Court. Lady Hale dissented. Lord Hope considered the phrase an asylum claim, or a human rights claim in s 92(4)(a) in the context of the 2002 Act as a whole and rejected the Appellants argument that the Supreme Court should follow the interpretation in R v Secretary of State for the Home Department, ex parte Onibiyo [1996] QB 768. In Onibiyo, claim in the context of the 1993 Act was held to mean a first claim, or a second or subsequent claim which has been accepted as a fresh claim by the Secretary of State, but not a claim which is repetitious. Lord Hope determined that whilst the 2002 Act uses substantially the same words as the 1993 Act, the statutory system is markedly different given the addition of a range of powers enabling the Secretary of State or immigration officer to deal with repetitious claims. No inference was drawn from the amendment of s 113 by s 12 of the Immigration, Asylum and Nationality Act 2006 as it is not yet in force. (Paras [25] [29]; [44] [46]) In a case such as this where no certification has been given under s 94 (providing for the exclusion of appeals that are clearly unfounded) or s 96 (removing the right of appeal if the claim raises an issue which has been or ought to have been dealt with in an earlier appeal), there is no need to impose a further requirement which is not mentioned elsewhere in the 2002 Act, namely that the words aclaim exclude a further claim which has not been held under rule 353 to be a fresh claim. (Para [29]) The Appellants construction risks undermining the beneficial objects of the Refugee Convention, as it would exclude, by s 95, claims which the Secretary of State considers not to be fresh claims from the ground of appeal in s 84(1)(g), when claims which are certified as clearly unfounded under s 94 would still be given the benefit of that section. (Section 84(1)(g) provides for an appeal where removal would place the UK in breach of its international or human rights obligations.) (Paras [30][32]; [47]) Rule 353 does not affect the operation of the legislative scheme, which provides the complete code for dealing with repeat claims. (Para [33]) Lady Hale, dissenting, would have allowed the appeal. Lady Hale concluded aclaim in s 92(4)(a) of the 2002 Act ought to be given the same meaning ascribed to the phrase in the 1993 Act in Onibiyo. There was no need for it to be defined in the 2002 Act given it had already been judicially interpreted. (Paras [39][40]) The addition of sections 94 and 96 should not be taken to mean that Parliament had abandoned the old meaning of claim without expressly saying so, particularly as the additional sections are not apt to cater for repetitious claims. (Paras [41][42]) Lady Hale disagreed that the Appellants construction would undermine the UKs international obligations. A person who presents a repeat claim on asylum or human rights grounds has already enjoyed the right of appeal on these grounds within this country. The current system allowing for an initial decision followed by an appeal system in the UK is sufficient compliance with those obligations. (Paras [42] [43])

The Appellants entered into a contract with the Respondents for the purchase of land with a view to its development to form a business park, or for industrial development. The purchase price was 365,000, but it was subject to a possible uplift (the Profit Share) in the events described in clause 9 of the missives. This was to be payable if the Appellants issued a notice indicating their wish to buy out the Respondents share of the open market value of the land, or if the Appellants wished to dispose of the whole part of the subjects by sale or by a lease for a term of more than 25 years. The Appellants took title to the subjects on 26 August 2004, and the land was developed as anticipated in the missives. On 4 October 2006, the Appellants transferred their title to the subjects to another company in the group, called Stewart Milne (Westhill) Limited (Westhill). They informed the Respondents of this sale. The Appellants contention is that the effect of this transaction was to trigger the obligation to pay the uplift to the purchase price as set out in the missives. Since the gross sale proceeds for the relevant part of the development land were less than the allowable costs which were to be deducted from the sale price in terms of the missives, the result was that no uplift was payable to the Respondents. The Respondents refused to accept that the transaction had this effect, since the open market value of the subjects at the date of the sale was greatly in excess of the consideration paid by Westhill. The Respondents raised an action for declarator that any uplift due to them in terms of the missives falls to be calculated by reference to the open market value of the subjects as at the date of sale by the Appellants to Westhill, less the allowable costs. Declarator was granted by the Outer House, and was upheld on appeal by an Extra Division in the Inner House. The Supreme Court unanimously dismisses the appeal, upholding the declarator that was granted in favour of the Council. The leading judgment is delivered by Lord Hope. Lord Clarke gives a short concurring judgment. The three events which trigger the Appellants obligation to pay the uplift are set out in clause 9. The definition of the Profit Share in the Schedule then sets out three ways in which the base figure for the profit share is to be arrived at: namely, by reference to the estimated profit or gross sale proceeds or lease value [15]. At first, they appear to be mutually exclusive, but the context tends to indicate that they have one thing in common. This is that the base figure is to be taken to be the amount which the subjects would fetch in a transaction that was conducted at arms length in the open market. Unlike the provisions for the case of a buy out or lease, no mention is made of a valuation exercise in the case of a sale. But a sale at arms length is usually taken to be the best evidence of the value of the subjects in the open market [16]. It is a reasonable assumption that these methods were expected to produce the same base figure, albeit by different routes or methods of calculation. Basing the calculation on the open market was, on a fair reading of the agreement, the commercial purpose that these various methods were intended to serve [17]. The problem is that it was not expressly stated that the gross sale proceeds were only to be used in the event of a sale at arms length in the open market. Was this a deliberate choice, or simply an oversight? The answer is to be found by examining how the agreement can be given effect on the assumption that it was an oversight. There are, of course, well understood limits to the extent to which a court can depart from the express terms of a written agreement in solving a problem of this kind [18]. The wording of the definition of Profit Share does not, in terms, confine the method to be used in the case of a sale to the gross sale proceeds [19]. There is nothing in the definition of Estimated Profit (or Open Market Valuation) to show that this method cannot be used in the event of a sale. There would therefore be no difficulty in implying a term to the effect that, in the event of a sale which was not at arms length in the open market, an open market valuation should be used to arrive at the base figure for the calculation of the Profit Share [20]. The context shows that the intention of the parties must be taken to have been that the base figure for the calculation of the uplift was to be the open market value of the subjects at the date of the event that triggered the obligation. It can be assumed that this is what the parties would have said if they had been asked about it at the time when the missives were entered into. The question is whether effect can be given to this unspoken intention without undue violence to the words they actually used in their agreement. The court considers that the words used do not prevent its being given effect in this way [22]. The provisions for payment of the Profit Share on the grant of a lease over the subjects undermine the Appellants argument that it must have been an essential element of the bargain that the profit had actually been realised before the obligation to pay the Profit Share was triggered [23]. A further, alternative argument was put forward by the Appellants. They had been prevented from presenting the argument in the Inner House, presumably because it was inconsistent with the case presented in the pleadings. But the overall aim should be to do substantial justice as between the parties, so the Court considers that this further argument about how the contract should be construed should be permitted. The Appellants point was that any commercial absurdity could be addressed by holding that the word disposal in clause 9 should be read as referring to an arms length transfer at market value rather than a transfer to an associated company for a notional value [13 14]. So the sale to Westhill should be disregarded and the obligation to pay the uplift triggered instead by a sale of the subjects in the open market by Westhill. But that solution cannot fit with the words used in the contract, to which Westhill are not a party. It would not be enough merely to substitute for the word Purchasers in the definition words that would include an associate company. It would also be necessary to write in clauses to protect the Respondents against the obvious risks that such an arrangement would give rise to. This would involve re writing the bargain for the parties, which the court cannot do [25].

This case concerns Council Directive 79/7/EEC on the Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security (the Directive). Article 4 of the Directive provides that there shall be no discrimination whatsoever on ground of sex either directly, or indirectly by reference in particular to marital or family status. Article 7(a) provides that the Directive (which has direct effect) was to be without prejudice to the right of Member States to exclude from its scope the determination of pensionable age for the purpose of granting old age and retirement pensions. The United Kingdom has exercised that right. Under United Kingdom law, a woman born before 6 April 1950 is eligible for the statement retirement pension at the age of 60, and a man born before 6 December 1953 is eligible at the age of 65. For people born after those dates, the ages will converge over a period of time. At the time relevant to this appeal, the acquired gender of a transgender person was not recognised for the purpose of determining their qualifying pension age, if they were married. So far as MB was concerned, she was registered at birth as a man but has lived as a woman since 1991 and underwent gender reassignment surgery in 1995. She has not applied for a full gender recognition certificate because she and her wife are married and wish to remain so, a situation at that time precluded by the conditions for obtaining a full gender recognition certificate [13]. On 31 May 2008, MB turned 60. In July of that year, she applied for a state retirement pension, backdated to her 60th birthday. That application was rejected on 2 September 2008 because, in the absence of a gender recognition certificate, MB could not be treated as a woman for the purposes of pension eligibility and would instead become eligible at 65, as if she were a man. The First tier Tribunal, Upper Tribunal and Court of Appeal all agreed with that approach [14]. The appellant challenged the compatibility of that approach with the Directive. The Supreme Court refers the question to the Court of Justice of the European Union. Lord Sumption gives the reasons for the referral, with which the rest of the Panel agree. The question referred is whether the Directive precludes the imposition in national law of a requirement that, in addition to satisfying the physical, social and psychological criteria for recognising a change of gender, a person who has changed gender must also be unmarried in order to qualify for a state retirement pension [18]. Before 2005, the position under UK law was that a person was treated for all legal purposes as having the gender determined by their biological characteristics at birth. In 2002, the European Court of Human Rights deemed that to be incompatible with Article 8 of the European Convention on Human Rights (the right to private and family life) and, in so far as it prevented a transgender person from marrying a person of the same gender, incompatible with Article 12 (the right to marry and found a family) [4]. The Gender Recognition Act 2004 (which came into force on 4 April 2005) amended the situation such that a persons acquired gender would be legally recognised if they satisfied certain criteria. If a full certificate of gender recognition was issued to a person, their entitlement to a state retirement pension would be decided according to the rules that apply to the acquired gender [7]. If, however, a person was married, because same sex marriages were not at that time recognised, they received only an interim gender recognition certificate which did not change their legally recognised gender but, first, entitled them to have their marriage annulled after which a full gender recognition certificate would follow [8 9]. Once the Civil Partnership Act 2004 came into force in December 2005 a married person who changed their gender could have their marriage annulled and subsequently enter a civil partnership with their former spouse [10]. In 2014, that situation was changed by the entry into force of the Marriage (Same Sex Couples) Act 2013. The Gender Recognition Act 2004 was amended so that a full gender recognition certificate could, from then on, be issued to a married applicant with the consent of the applicants spouse [11]. MB has argued that the CJEU has recognised that article 4(1) of the Directive prohibits discrimination between persons of a particular birth gender and people who have acquired that gender and, although it is for member states to determine the conditions by which someone may acquire a gender, that only applies to physical or psychological characteristics and not to marital status [15(1) (2)]. The imposition of a marital status criterion on a person who satisfies the states physical and psychological criteria must therefore be unlawful, and cannot appropriately affect eligibility for state retirement pension [15(3) (4)]. MB therefore argues that the Gender Recognition Act 2004 discriminates against her directly on the grounds of sex, and indirectly because the great majority of people who have undergone gender reassignment have been reassigned from male to female [15(5)]. The Secretary of State argues that the UK procedure by which, for a persons acquired gender to be recognised, a gender recognition certificate must be obtained, is lawful [16(1) (3)]. There is no reason that the conditions for the acquisition of a gender should be limited to satisfaction of physical and psychological criteria. Conditions may properly reflect social factors such as the status of marriage, which may include a definition of marriage as between a man and a woman [16(4) (5)]. No question of indirect discrimination arises [16(6)]. The Supreme Court is divided on the correct answer to the question and, since there is no CJEU authority directly in point, it refers the question for their guidance [17].

In this appeal, the Appellants argue that sections 1 and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 (the 2010 Act) are outside the legislative competence of the Scottish Parliament. Section 1 of the 2010 Act prohibits the display of tobacco products in a place where tobacco products are offered for sale. Section 9 prohibits vending machines for the sale of tobacco products [3]. The limits to the legislative competence of the Scottish Parliament are set out in the Scotland Act 1998 (the 1998 Act). The Appellants first broad argument is that, by reference to their purpose, sections 1 and 9 relate to the sale and supply of goods to consumers and product safety. These are matters which are reserved to the UK Parliament under the 1998 Act and on which the Scottish Parliament cannot legislate. Their second broad argument is that sections 1 and 9 modify the law on reserved matters. They say that two sets of Regulations (the Tobacco for Oral Use (Safety) Regulations 1992 and the Tobacco Products (Manufacture, Presentation and Sale) (Safety) Regulations 2002) should be treated as being part of the law on reserved matters because their subject matter is a reserved matter. Those Regulations contain rules of Scots criminal law which are special to a reserved matter. Sections 1 and 9 modify those rules, which under the 1998 Act they cannot do. The Appellants also say that sections 1 and 9 create new offences, in addition to those already provided for in the Regulations, which can only be committed in the course of the sale and supply of goods to consumers [2, 3, 25 and 38]. This is the first case in which provisions of an Act of the Scottish Parliament have been challenged on the ground that they relate to the specific reservations in the list of reserved matters [6]. At first instance, the Court of Session held that none of the Appellants challenges to the legislative competence of sections 1 and 9 (which included the challenges made in this appeal) were well founded, and it dismissed their petition for judicial review. Their reclaiming motion (appeal) to the Inner House of the Court of Session was unsuccessful [4]. The Supreme Court unanimously dismisses the appeal. Sections 1 and 9 of the 2010 Act are within the legislative competence of the Scottish Parliament. The judgment is given by Lord Hope with whom all the other Justices agree. Three principles should be followed when undertaking the exercise of determining whether, according to the rules that the 1998 Act lays down, a provision of an Act of the Scottish Parliament is outside competence. First, the question of competence must be determined in each case according to the particular rules that have been set out in the 1998 Act. Second, those rules must be interpreted in the same way as any other rules that are found in a UK statute. Third, the description of the 1998 Act as a constitutional statute cannot be taken, in itself, to be a guide to its interpretation [12 15]. The exercise is essentially one of statutory construction. The answer to the question of whether the challenged provisions are within legislative competence is to be found by construing the words used by the 1998 Act and examining the challenged provisions in the light of the meaning that is to be given to those words. In this case, the first stage is to examine sections 1 and 9 and to identify their purpose. The second stage is to examine the relevant rules in the 1998 Act to identify the tests that have to be applied. This stage is of critical importance and it requires to be handled with great care. The final stage is to draw these exercises together to reach a conclusion on the legislative competence of sections 1 and 9 [9 and 18]. The purpose of section 1 is to enable the Scottish Ministers to take steps which might render tobacco products less visible to potential consumers and thereby achieve a reduction in sales and thus in smoking. The purpose of section 9 is to make cigarettes less readily available, particularly (but not only) to children and young people, with a view to reducing smoking. The legal effect and short term consequences are consistent with those purposes [22]. In the 1998 Act, the reserved matter of the sale and supply of goods and services to consumers encompasses all aspects of regulation of the sale and supply of goods and services to consumers within the field of consumer protection. The reserved matter of product safety extends to matters falling within the scope of section 11 of the Consumer Protection Act 1987 (which gives the Secretary of State power to make product safety regulations) [34, 36, 40 and 42]. The Court does not see how it can be said that the purpose of sections 1 and 9 has anything to do with consumer protection. The aim of sections 1 and 9 is to discourage or eliminate sales of tobacco products, not to regulate how any sales are to be conducted so as to protect the consumer from unfair trade practices [40 41]. The purpose of sections 1 and 9 also has nothing to do with the standards of safety to be observed in the production and sale of tobacco products. Sections 1 and 9 are designed to promote public health by reducing the attractiveness and availability of tobacco products, not to prohibit in any way their sale to those who wish and are old enough to purchase them. The words product safety in the 1998 Act direct attention to matters that are of concern to the single market in the general area of trade and industry. It is not the purpose of sections 1 and 9 to disrupt or unbalance trading in tobacco products in that way at all [42]. Sections 1 and 9 do not seek to amend or otherwise affect anything that is set out in the two sets of Regulations. In that sense they cannot be said to modify them. The purpose of the offences that sections 1 and 9 create is to discourage or eliminate the sale or supply of tobacco products. If this purpose is realised, that will be their effect. This is plain in the case of the vending machines, because the effect of section 9 is to prohibit the sale of tobacco products by way of vending machines. The Court can see no connection between the purpose and effect of section 1 and the law on reserved matters. The criminal law relating to any sales in a place where tobacco products are available for sale will not be affected by section 1. Section 1 does not create any new offence in regard to any such sales, and the existing offences are not modified. Section 1 is not a provision within the scope of section 11 of the Consumer Protection Act 1987 [44 45].

This appeal concerns the proper approach of Employment Tribunals (ETs) when ordering that an employer reinstate an employee who has been unfairly dismissed. The appeal arises from the scandal over the disputed identification of a fingerprint in a murder inquiry in 1997, which resulted in the trial and conviction (later quashed) of David Asbury (the McKie Scandal). A fingerprint at the murder scene was identified by four experts from the Scottish Criminal Records Office (SCRO) fingerprint bureau as belonging to Detective Constable Shirley McKie. The SCRO provided services for the police and Crown Office, and their experts duties included signing fingerprint reports for use in criminal trials and giving evidence at trial. As a result of the identification, DC McKie was charged with perjury for giving evidence at Mr Asburys trial that she had never been to the crime scene. During DC McKies trial differences of opinion emerged about the fingerprint identification and she was acquitted. The McKie Scandal generated much media interest and criticism of the fingerprint service in Scotland. The appellant, Ms McBride, was one of the experts involved in the McKie Scandal, and she and the other experts were suspended from 3 August 2000 while investigations took place. One investigation concluded that the experts had not been guilty of any malicious wrongdoing and recommended that they return to work without any disciplinary action being taken. Accordingly, in May 2002 Ms McBride and the other experts resumed work on restricted duties and undertook extensive retraining. They sought to return to full duties (including the signing of joint reports and giving evidence in court) but were not allowed to do so. This was because there remained disagreement, within the SCRO, nationally and internationally, over the McKie Scandal and concern that any evidence from the experts at trial would be undermined by cross examination on matters relating to the scandal. In 2007 the Scottish Police Services Authority (SPSA, the respondent, now known as the Scottish Police Authority) was established. David Mulhern was tasked with integrating the fingerprint service into a new Scottish Forensic Science Service. He made it clear he did not want the experts involved in the McKie Scandal to transfer to the SPSA but that redeployment was an option. After her employment transferred to the SPSA, Ms McBride indicated that she would discuss redeployment but wished first to discuss reinstatement to unrestricted duties. There was no such discussion and she was dismissed. She claimed for unfair dismissal. The ET held that Ms McBride had been unfairly dismissed and ordered that she be reinstated to the position of Fingerprint Officer and treated in all respects as if she had not been dismissed. In its reasoning the ET held it would be practicable for the SPSA to reinstate the claimant to the role of (non court going) fingerprint expert. The SPSA appealed, and the Employment Appeal Tribunal (EAT) revoked the ETs judgment on remedy and remitted the case to a freshly constituted tribunal to determine compensation, holding that the ETs decision that it was practicable for the SPSA to comply with an order for reinstatement was perverse. On Ms McBrides appeal to the Court of Session, although the Inner House rejected the EATs conclusion that the ETs order for reinstatement was perverse, it held that the ET had erred in law by ordering the SPSA to employ Ms McBride on altered contractual terms. Ms McBride appealed to the Supreme Court. The Supreme Court unanimously allows Ms McBrides appeal. Lord Hodge (with whom the other Justices agree) gives the leading judgment. The case is remitted to the original ET, or to a tribunal which includes the member or members of the original ET who are still in office, to consider in what respects it should vary its order for compensation in view of the time that has passed since the order. Lord Hodge observes that the ETs order for reinstatement (set out at [18]) viewed alone is not open to criticism, as it reflects the definition of such orders set out under s.114(1) of the Employment Rights Act 1996. The question is whether the context in which the order was made and the ETs reasoning in support of the order should give rise to a different interpretation of the order [39]. Lord Hodge answers this question in the negative. The ET was not seeking to impose a contractual limitation in the reinstatement order removing the excluded duties (i.e. signing reports and attending court to give evidence) from Ms McBrides job description. Rather it was recognising a practical limitation on the scope of her work caused by circumstances beyond her and her employers control [40]. This conclusion is supported by four reasons: (1) The ET was aware both of Ms McBrides terms of employment and that for several years previously she had been actively employed as a fingerprint officer but had not been asked or allowed to sign reports or give evidence in court. That was the status quo to which she would have returned pursuant to a reinstatement order [41]. (2) The ET was aware that Ms McBride wanted to perform the excluded duties but held that the SPSAs decision that she could not return to those duties was reasonable [42]. (3) The ET rejected the idea that continuing in a non court going role amounted to alternative employment. It criticised Mr Mulherns evidence, which had been calculated to give the impression that Ms McBride had done little of value in the previous years, and accepted the evidence of Ms McBrides managers about the amount of work carried out by fingerprint experts which does not involve the excluded duties and their assessment that Ms McBride had made a valuable contribution in the years in which her duties had been restricted [43]. (4) The ETs references to Ms McBride being reinstated to a non court going fingerprint officer role were included in parenthesis and spoke of an understanding, which may suggest that the ET was considering the practical context of the reinstatement rather than an alteration of the terms of employment. The words in parenthesis confirmed that the order for reinstatement did not amount to an order that the employer must alter the status quo by allowing Ms McBride to resume the excluded duties [44]. Lord Hodge rejects an additional argument by the respondent that the ETs view on the practicability of compliance with the reinstatement order was perverse because it had the potential to expose the SPSA to a claim by Ms McBride that it was in fundamental breach of her employment contract by refusing to allow her to perform the excluded duties. This argument was not developed in the courts below and, in any event, would not have succeeded if properly developed at the time in the light of the ETs findings of fact [30 31 & 46 52].

The legal issue in these cases concerned the mental element of intent which must be proved when a defendant is accused of being a secondary party to a crime. The question of law was whether the common law took a wrong turning in two cases, Chan Wing Siu v The Queen [1985 1 AC 168 and Regina v Powell and English [1999] 1 AC 1. The appellant Jogee was convicted at Nottingham Crown Court of the murder of Paul Fyfe. Mr Fyfe was the boyfriend of Naomi Reid and he was stabbed to death in the hallway of her home in the early hours of 10 June 2011 by the appellants co defendant, Mohammed Hirsi. Hirsi was convicted of murder.1 The appellant and Hirsi spent the previous evening at various places, taking drink and drugs. They became increasingly intoxicated and increasingly aggressive. Shortly before midnight they arrived at Ms Reids house. She told them to leave and that she was expecting Mr Fyfe to return. They said that they were not scared of him and would sort him out. They left but Hirsi returned and was there when Mr Fyfe arrived. Ms Reid called the appellant and told him to fetch Hirsi, which he did, but soon afterwards Hirsi and the appellant came back to her house. Hirsi entered the house and there was an angry confrontation between him and Mr Fyfe. The appellant was outside with a bottle and shouting to Hirsi to do something to Mr Fyfe and at one stage the appellant came to the door and threatened to smash the bottle over Mr Fyfes head. The fatal stabbing was done by Hirsi with a knife which he took from the kitchen. The judge directed the jury that the appellant was guilty of murder if he took part in the attack on Mr Fyfe and realised that it was possible that Hirsi might use the knife with intent to cause serious harm. The appellant Ruddock was convicted in the Circuit Court at Montego Bay, Jamaica, of the murder of Peter Robinson. The appellants co defendant, Hudson, pleaded guilty to the murder. Mr Robinson was a taxi driver and the prosecutions case was that the murder was committed in the course of robbing him of his station wagon. The police evidence was that the appellant made a statement under caution which amounted to an admission that he was involved in committing the robbery and that he was present when Hudson killed the victim by cutting his throat but a denial that the appellant was responsible for the killing. The judge directed the jury that Ruddock was guilty of murder if he took part in the robbery and knew that there was a possibility that Hudson might intend to kill the victim. 1 Hirsi pleaded guilty to murder. amended to Hirsi was convicted of murder. on 3rd March 2016 [see judgment para 101] In each case the direction to the jury derived from Chan Wing Siu and Reg v Powell and English which were binding on the trial judges. The unanimous conclusion of the court is that Chan Wing Siu and Powell and English did take a wrong turning and these appeals should therefore be allowed. The correct rule is that foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage, which is the proper mental element for establishing secondary liability. The court has been concerned with a part of the law of secondary liability for crime. It concerns the person who did not himself forge the document, fire the gun or stab the victim (the person who did is called the principal), but who is said to have encouraged or assisted the principal to do so. There is no question that persons who are indeed together responsible for a crime are all guilty of it, whether as principals or secondary parties. Sometimes it is not possible to determine exactly whose hand performed the vital act, but this does not matter providing that it is proved the each defendant either did it himself of intentionally assisted or encouraged it. These cases do not affect that basic rule at all. Within this part of the criminal law, the court has been concerned with a narrower sub part. This concerns secondary parties who have been engaged with one or more others in a criminal venture to commit crime A, but in doing so the principal commits a second crime, crime B. In many of the reported cases crime B is murder committed in the course of some other criminal venture, but the rule of law is not confined to cases of homicide, or indeed to cases of violence. The question is: what is the mental element which the law requires of the secondary party? This narrower area of secondary responsibility has sometimes been labelled joint enterprise, but this is to misuse that expression. To speak of a joint enterprise is simply to say that two or more people were engaged in a crime together. That, however, does not identify what mental element must be shown in the secondary party. The particular narrower area of secondary responsibility here in question where crime B is committed during the course of crime A has been, in the past, more precisely been labelled parasitic accessory liability. The two cases of Chan Wing Siu and Reg v Powell and English held that in the kind of situation described, the mental element required of the secondary party (D2) is simply that he foresaw the possibility that D1 might commit crime B. If D2 did foresee this, the cases treated his continued participation in crime A not simply as evidence that he intended to assist crime B, but as automatic authorisation of it. So D2 was guilty under this rule, even if he did not intend to assist crime B at all. This set a lower test for D2 than for D1, who will be guilty of crime B only if he has the necessary mental element for that crime, usually intent. And it is in contrast to the usual rule for secondary parties, which is that the mental element is an intention to assist or encourage the principal to commit the crime. The conclusion of this court is that once the two questioned decisions are fully analysed, it is plain that they did take a wrong turning in their reasoning, even if the outcome might well have been the same if the error had not been made. The prior cases which were relied on were only part of the history and important cases were not discussed. The decisions departed from the well established rule that the mental element required of a secondary party is an intention to assist or encourage the principal to commit the crime. They also advanced arguments based on the need that co adventurers in crimes which result in fatality should not escape conviction, without considering whether the secondary parties would generally be guilty of manslaughter in any event. The law in this field has always been a matter of the common law rather than of statute, and so it is right for the courts, which have created it, to investigate whether a wrong turning was taken. The court holds, in a unanimous judgment, that the law must be set back on the correct footing which stood before Chan Wing Siu. The mental element for secondary liability is intention to assist or encourage the crime. Sometimes the encouragement or assistance is given to a specific crime, and sometimes to a range of crimes, one of which is committed; either will suffice. Sometimes the encouragement or assistance involves an agreement between the parties, but in other cases it takes the form of more or less spontaneous joining in a criminal enterprise; again, either will suffice. Intention to assist is not the same as desiring the crime to be committed. On the contrary, the intention to assist may sometimes be conditional, in the sense that the secondary party hopes that the further crime will not be necessary, but if he nevertheless gives his intentional assistance on the basis that it may be committed if the necessity for it arises, he will be guilty. In many cases, the intention to assist will be co terminous with the intention (perhaps conditional) that crime B be committed, but there may be some where it exists without that latter intention. It will remain relevant to enquire in most cases whether the principal and secondary party shared a common criminal purpose, for often this will demonstrate the secondary partys intention to assist. The error was to treat foresight of crime B as automatic authorisation of it, whereas the correct rule is that foresight is simply evidence (albeit sometimes strong evidence) of intent to assist or encourage. It is a question for the jury in every case whether the intention to assist or encourage is shown. This brings the mental element of the secondary party back into broad parity with what is required of the principal. The correction is also consistent with the provision made by Parliament in a closely related field, when it created (by the Serious Crime Act 2007) new offences of intentionally encouraging or assisting the commission of a crime, and provided that a person is not to be taken to have had that intention merely because of foreseeability. The court makes clear what the present cases do not decide. First, they do not affect the law that a person who joins in a crime which any reasonable person would realise involves a risk of harm, and death results, is guilty at least of manslaughter. Manslaughter cases can vary in their gravity, but may be very serious and the maximum sentence is life imprisonment. Secondly, they do not affect the rule that a person who intentionally encourages or assists the commission of a crime is as guilty as the person who physically commits it. Thirdly, they do not alter the fact that it is open to a jury to infer intentional encouragement or assistance, for example, from weight of numbers in a combined attack, whether more or less spontaneous or planned, or from knowledge that weapons are being carried. It is a commonplace for juries to have to decide what inferences they can properly draw about intention from an accused persons behaviour and what he knew. This necessary correction to the wrong turning taken by the law does not mean that every person convicted in the past as a secondary party, where the law as stated in Chan Wing Siu was applied, will have suffered an unsafe conviction. A correction to the law does not have this effect. The outcome may in many cases have been the same. Those whose convictions are outside the time limit for appealing would require the exceptional leave of the Court of Appeal, Criminal Division, to challenge them out of time. It is for that court to enquire whether substantial injustice would occur in any particular case, but it is not the law that that is shown simply because the rules which then prevailed have now been declared to have contained a flaw. The same rules apply where the Criminal Cases Review Commission is asked to consider referring a case to the Court of Appeal. In these two cases, the convictions for murder must be set aside because the law was wrongly understood and the appeals were brought in time. In Jogee it was argued on his behalf that he ought not to have been convicted of either murder or manslaughter and that his conviction should simply be quashed. That argument was quite unrealistic. On the evidence and the jurys verdict he was unquestionably guilty at least of manslaughter, and there was evidence on which the jury could have found him guilty of murder on a proper direction. The court will ask for written submissions from both parties whether there should be a re trial for murder or whether the conviction for murder should be replaced by a conviction for manslaughter. In the case of Ruddock there were other, unrelated, misdirections. The Board asks for written submissions from both sides, now that the correct position in law has been identified, as to what should be the appropriate disposal. This summary is provided to assist in understanding the Courts decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: http://supremecourt.uk/decided cases/index.html

The appellants son is alleged to have been one of a group of terrorists operating in Syria, involved in the murder of US and British citizens. In June 2015, the US made a mutual legal assistance (MLA) request to the UK in relation to an investigation into the activities of that group. The Home Secretary requested an assurance that the information would not be used directly or indirectly in a prosecution that could lead to the imposition of the death penalty. The US refused to provide a full death penalty assurance. Ultimately, in June 2018, the Home Secretary agreed to provide the information to the US without requiring any assurance whatever. The appellant challenged the Home Secretarys decision by way of judicial review. Her claim was dismissed by the Divisional Court, which certified two questions of law of public importance: (i) whether it is unlawful for the Secretary of State to exercise his power to provide MLA so as to supply evidence to a foreign state that will facilitate the imposition of the death penalty in that state on the individual in respect of whom the evidence is sought; and (ii) whether (and if so in what circumstances) it is lawful under Part 3 of the Data Protection Act 2018 (DPA), as interpreted in the light of relevant principles of EU data protection law, for law enforcement authorities in the UK to transfer personal data to law enforcement authorities abroad for use in capital criminal proceedings. The Supreme Court allows the appeal. The majority of the Justices (Lord Reed, Lord Carnwath, Lord Hodge, Lady Black and Lord Lloyd Jones) dismiss the challenge to the decision brought under the common law, but the Court unanimously holds that the decision failed to comply with the DPA. Lord Kerr would have allowed the appeal on both grounds. Lady Hales judgment acts as a short guide to the other judgments. Ground (i): Has the common law evolved to recognise a principle prohibiting the provision of MLA that will facilitate the death penalty? The majority answer this question no. The reasons for considering that the common law has not developed so far are explained by Lord Reed and Lord Carnwath. Lord Carnwath finds that the power of the courts to develop the common law must be exercised with caution [193]. The death penalty as such has never attracted the attention of the common law: the key legal developments have come from Parliament and the ECHR, not from the domestic courts [194]. One recent development is section 16 of the Crime (Overseas Production Orders) Act 2019. This section confirms: (i) that this is an area in which Parliament remains directly involved; and (ii) that, where the Act applies, there is nothing that specifically prohibits the Home Secretary from exchanging material in cases whether they have sought but have not received assurances that the information they exchange will not be used to facilitate the death penalty. This suggests that the common law has not developed as suggested by Lord Kerr [195]. Lord Carnwath also finds that powers to deport or extradite under domestic law are subject to review on public law grounds, but are not subject to an absolute prohibition on removal by reference to the possible consequences in the receiving state [198]. Finally, it is difficult to reconcile the DPA scheme with the development of an absolute common law prohibition as advanced by Lord Kerr [205]. Lord Reed agrees with Lord Carnwath for the reasons given in his judgment and for additional reasons. He finds that the common law is subject to judicial development, but such development must build incrementally on existing principles. This is necessary to: (i) preserve legal certainty; and (ii) ensure compatibility with the pre eminent constitutional role of Parliament in making new law [170]. The development of the law proposed by Lord Kerr does not seem to Lord Reed to be an incremental step [171]. Lord Reed adds that judicial recognition of the value of life can have an important influence on adjudication in this context. This is because the courts are required to take a more rigorous approach when reviewing the exercise of discretion where life may be at stake [176 178]. Lord Reed refers to the respondents submissions that the Home Secretarys decision making complied with that higher standard of review [179]. He notes that the Home Secretarys decision might have been open to challenge on the ground that it failed to comply with the common law requirement of rationality, but declines to express a view on this [181 182]. Lord Hodge agrees with Lord Reed and Lord Carnwath that the common law does not recognise a right to life which can be used to prevent the Home Secretary from providing information to a foreign country in the context either of MLA or the sharing of intelligence [231 234]. Lord Kerr underlines the steadfast opposition by successive UK governments to the imposition of the death penalty in any circumstances, and the related long standing policy not to provide MLA unless death penalty assurances are received [26]. He notes that the common law is not immutable but develops over time to reflect the changing values of society [102]. Lord Kerr summarises six factors favouring recognition of the common law principle in question at [141]: (i) the Bill of Rights; (ii) British contemporary values; (iii) European Court of Human Rights (ECHR) jurisprudence (discussed at [107 124]); (iv) EU jurisprudence (discussed at [125 134]); (v) the fundamental illogicality of refusing to extradite or deport individuals for trial where there is a risk of the imposition of the death penalty, on the one hand, and facilitating precisely such an outcome by the provision of MLA without requiring assurances, on the other; and (vi) Judicial Committee of the Privy Council jurisprudence (discussed at [135 140]). Lord Kerr concludes that a common law principle should be recognised whereby it is deemed unlawful to facilitate the trial of any individual in a foreign country where, to do so, would put that person in peril of being executed [142]. This principle should be disapplied only if MLA is absolutely necessary as a matter of urgency in order to save lives or protect the nations security [164]. Law must be responsive to societys contemporary needs, standards and values, which are in a state of constant change. That is an essential part of the human condition and experience. The adjustment to the common law proposed reflects the contemporary standards and values of our society [144]. Ground (ii): Is it lawful under Part 3 of the DPA to transfer personal data to law enforcement authorities abroad for use in capital criminal proceedings? The Court is unanimous in holding that the Home Secretarys decision was unlawful under the DPA. The DPA requires the data controller to address his mind to the specific requirements of the Act and this was not done. The DPA is discussed by Lady Hale at [6 15], Lord Kerr at [152 159] and Lord Carnwath at [207 228]. Lady Hale outlines the basic structure of the DPA at [8 12]. She explains that Part 3 of the DPA makes provision about the processing of personal data by competent authorities for law enforcement purposes. Sections 73 to 76 set out the general conditions that apply to such transfers. The data controller cannot transfer data unless the three conditions in section 73(1)(a) are met [8]. Condition 1 is that the transfer is necessary for any of the law enforcement purposes [9]. Condition 2 is that the transfer is (a) based on an adequacy decision of the European Commission; (b) if not based on an adequacy decision, is based on there being appropriate safeguards; or (c) if not based on an adequacy decision or appropriate safeguards, is based on special circumstances [10]. She notes that this transfer was not based on an adequacy decision or appropriate safeguards, because there were none [10]. Nor does the transfer meet the special circumstances requirement: a transfer is based on special circumstances only if it is necessary for any of the five purposes listed in section 76(1). This condition is not met [12]. Lord Carnwath agrees that there has been a breach of the DPA. He focuses on the provisions governing transfers of personal data to a third country in sections 72 to 78 of Part 3. section 73 deals specifically with transfers of personal data to a third country and prohibits such transfers unless a number of conditions are met. As Lady Hale, he notes that Condition 2 is that the transfer must be based on an adequacy decision, or on there being appropriate safeguards, or on special circumstances. There was no adequacy decision here, hence the discussion centres upon whether there were appropriate safeguards or special circumstances sanctioning the transfer [209 213]. section 75 defines the circumstances in which a transfer is based upon there being appropriate safeguards, discussed at [214 219]. Lord Carnwath concludes that the information in question was transferred without any safeguards at all [220]. The lawfulness of the transfer therefore stands or falls on the special circumstances condition [221]. The circumstances in which a transfer is based on special circumstances are defined in section 76, discussed at [221 224]. Lord Carnwath concludes that the Act requires a specific assessment under the section, and that this did not take place [225]. The decision was based on political expediency, rather than consideration of strict necessity under the statutory criteria [227]. It was consequently unlawful under the DPA. Lady Hale raises a further issue under section 76(2) DPA, which concerns the special circumstances gateway. section 76(2) provides that: subsection (1)(d) and (e) do not apply if the controller determines that fundamental rights and freedoms of the data subject override the public interest in the transfer [12]. Lady Hale finds that these fundamental rights and freedoms include the rights protected by the European Convention on Human Rights, the most fundamental of which is the right to life [13 14]. This points towards an interpretation of section 76(2) which would not allow the transfer of personal data to facilitate a prosecution which could result in the death penalty [15]. Lord Carnwath sees the force of Lady Hales comments. He concludes that, at least, failure to consider this point is a further reason for holding that the Home Secretarys decision cannot stand [228]. Lord Hodge also sees the force of Lady Hales comments, but as the point was not fully argued, he reserves his position on it [230]. Lord Kerr agrees that there is a breach of the DPA, but for different reasons. He notes that it is common ground that provision of MLA involved the processing of personal data falling within Part 3 DPA. Such processing is only lawful where it complies with the data protection principles in section 34 DPA. Unlike the other justices, Lord Kerr held, under ground 1, that the transfer of material to the US authorities without obtaining death penalty assurances was contrary to the common law. He therefore concludes that it follows that the first and second data protection principles in section 34 requiring processing that is lawful and fair are not met [152 153]. Lord Kerr goes on to discuss section 73 DPA [154]. He agrees that there was no adequacy decision and no appropriate safeguards [155]. Transfer on the basis of special circumstances can only occur following an assessment of what is strictly necessary. Such an assessment was not made [158], hence the transfer of data breached section 73.

This appeal arises out of a claim by the appellant under a guarantee of a contract, to charter a vessel which was met with a defence from the respondent that the contract was procured by bribery and that the guarantee was therefore unenforceable. The bribery allegation was based on evidence of confessions that the appellant alleged were obtained by torture and therefore inadmissible. A contract for the charter of a ship was agreed in August 2008 between the appellant, a Hong Kong company now in liquidation, and the respondents subsidiary, a Hong Kong company also now in liquidation. A guarantee was agreed between the respondent, a Chinese company, and the appellant by which the respondent guaranteed its subsidiarys performance under the contract. The guarantee is governed by English law and confers jurisdiction on the English courts. The vessel was delivered in April 2010, but from September 2010 the subsidiary defaulted on its payments. The appellant brought arbitration proceedings and ultimately terminated the contract for the subsidiarys repudiatory breach. The appellant pursued its claim in arbitration for damages for the subsidiarys breach, achieving a partial final award in November 2012. In September 2012, the appellant commenced proceedings against the respondent under the guarantee in the Commercial Court. In its amended defence, the respondent alleged that the contract had been procured by bribes paid by or on behalf of the appellant to senior employees of the subsidiary. The respondent relied on confessions made by three individuals during an investigation undertaken by the Chinese Public Security Bureau. In an amended reply the appellant alleged that those confessions had been obtained by torture and consequently were inadmissible as evidence in the proceedings. At trial, Knowles J gave judgment in favour of the appellant, finding that there was no bribery and that he could not rule out torture. On appeal, the Court of Appeal held that the judges decision was unsustainable and sent the case back for reconsideration by a different judge. The appellant appealed to the Supreme Court seeking restoration of the judges judgment. The Supreme Court unanimously allows the appeal and restores the judgment in favour of the appellant. Lord Hamblen and Lord Leggatt give the judgment, with which all members of the Court agree. The issue on the appeal is whether the Court of Appeals criticisms were justified and warranted remitting the case for fresh determination. The four main criticisms were that the judge: (i) failed to follow the logical steps necessary to reach a proper evaluation of the admissible evidence; (ii) failed to ask and answer the correct legal question as to what weight should be accorded to the confession evidence; (iii) fell into legal error in failing to take all the appropriate matters into account in deciding the bribery issue; and (iv) fell into legal error in failing to exclude irrelevant matters, including what the Court of Appeal described as his lingering doubt as to whether the confessions were procured by torture, in considering whether the alleged bribe was paid [51] [52]. On the first criticism, the judge had considered the bribery issue before the torture allegations [41] [44]. The Court of Appeal took the view that the judge should have decided the torture allegations first and, having concluded the confession evidence was admissible, proceeded to determine the weight to be given to that evidence, then subsequently have considered whether bribery had taken place [55] [56]. The Supreme Court accepts that the Court of Appeals approach is logical, but it is not mandatory. The manner and order of the consideration of admissibility and weight of evidence are matters for the trial judge and there will usually be more than one legitimate approach [57] [58]. The judge took the confession evidence into account on the assumption, without deciding, that the evidence was admissible. That was a permissible approach [59]. Having done so, the judge considered it unnecessary to make a finding on the torture issues because he was in any event satisfied there was no bribery. The approach taken was both legitimate and consistent with the way the case was put before him [62], [65]. On the second criticism, the Court of Appeal considered that the judge had not adequately addressed the weight to be given to the confession evidence [66]. Though not separately set out, the Supreme Court considers that the judge did address the weight of the evidence in the factors relied upon in his conclusion on bribery. In circumstances where that evidence was the only evidence of bribery, in finding that there was no bribery the judge was necessarily finding that the confession evidence was of little or no weight. It cannot be said that his conclusion on bribery was unreasonable or unsustainable and there were ample grounds to support it [67] [84]. On the third criticism, the Court of Appeal considered that the judge failed to take into account the details of the confessions made and should have addressed each confession made by each individual rather than dealing with them compendiously [85]. Though the Supreme Court agrees that it would have been more satisfactory for the judge to have addressed the confession evidence in greater detail, it is clear that he did consider the confession evidence of all three individuals. The failure to consider it systematically is not an error of law [85] [87]. On the fourth criticism, the Court of Appeal considered that, as the judge did not find the allegation of torture proved on a balance of probabilities, he should have disregarded it entirely [93]. However, the judge did not need to and did not reach any conclusion that torture had or had not been proved [94]. Even if the judge had reached a definite conclusion that torture had not been proved on a balance of probabilities, there would have been no inconsistency between such a conclusion and the finding that torture was a real possibility that affected the reliance that should be placed on the confessions [95]. The facts that the court can take into account in assessing the weight to be given to hearsay evidence in civil proceedings are not limited to facts proved to the civil standard of proof [96]. While it is settled law that evidence proved on a balance of probabilities to have been obtained by torture is inadmissible, there is no rule that if an allegation that torture was used is not proved to that standard a possibility that evidence was obtained by torture must be ignored when deciding the facts in issue [106] [108].

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

On 25 June 1999 the respondent, Ms Dunhill, was struck by a motorcycle driven by the appellant, Mr Burgin, when crossing the road. She suffered a severe head injury. In May 2002 she issued a claim against Mr Burgin for damages limited to 50,000 for her injuries. On the day of the trial, settlement negotiations took place and Ms Dunhill, after advice from her counsel and solicitor, decided to compromise her claim for 12,500 plus costs, which was embodied in a consent order put before the judge. Ms Dunhill had in fact suffered very serious injuries and this settlement represented a gross undervalue of her claim, if she could establish that Mr Burgin had been negligent. In 2006 she consulted new solicitors. A litigation friend was appointed to act on her behalf, who applied for a declaration that she had not had mental capacity at the time of the settlement and that the consent order should be set aside with directions for the future conduct of the claim. Two preliminary issues arose. The first was the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf. The second was the consequence if legal proceedings were compromised without it being recognised that one of the parties lacked that capacity, so that the requirement in Part 21.10 of the Civil Procedure Rules (CPR) that the compromise must be approved by a court was not complied with. The High Court held that capacity was to be judged by reference to the decisions which Ms Dunhill had actually been required to take in the action as drafted rather than those which she might have been required to take had the action been differently framed. On this basis she did have capacity. The Court of Appeal ruled that she had to have capacity to conduct the more complicated action which ought to have been brought and Ms Dunhill had lacked that capacity. When the case was remitted to the High Court, it held that her lack of capacity rendered the settlement void as it had not been approved by the court as required by CPR 21.10. The Supreme Court gave permission to Mr Burgin to appeal against both findings. The Supreme Court unanimously dismisses the appeals. It holds that, on the test properly to be applied, Ms Dunhill lacked the capacity to commence and conduct proceedings arising out of her claim against Mr Burgin. The consent order must be set aside and the case proceed to trial. Lady Hale gives the only judgment. Test for capacity The general approach of the common law, now enshrined in the Mental Capacity Act 2005, is that capacity is to be judged in relation to the decision or activity generally and not globally. On the issue before the court the question was Ms Dunhills capacity to conduct the proceedings. CPR 21 posits a person with a cause of action who must have the capacity to bring and conduct proceedings in respect of that cause of action. This could not depend on whether that person received good advice, bad advice or no advice at all. The test of capacity to conduct proceedings for the purpose of CPR 21 is the capacity to conduct the claim or the cause of action which the claimant in fact has rather than to conduct the claim as formulated by her lawyers, and on this test it was common ground that Ms Dunhill lacked that capacity [13 18]. The effect of incapacity It followed that Ms Dunhill should have had a litigation friend when the proceedings were begun. Although the court had power to validate steps taken without a litigation friend retrospectively, it was not just to do so in this case in relation to a settlement and consent order made without the external check on its propriety required by CPR 21.10. The consequence was that the settlement was of no effect. The terms of CPR 21 did not enable Mr Burgin to rely on the fact that he had not been on notice of Ms Dunhills incapacity [22]. A settlement of a claim was an established exception to the general position under English law in respect of a contract made by a person who lacks capacity, which is valid unless this fact was or ought to have been known [23 30]. Although there was a need for finality in litigation, and the difficulty of re opening cases such as this so long after the event was recognised, the policy underlying the CPR was clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers [32 33]. Accordingly the consent order must be set aside and the case go for trial [34].

The issue in this appeal is whether it is within the scope of parental responsibility to consent to living arrangements for a 16 or 17 year old child which would otherwise amount to a deprivation of liberty within the meaning of article 5 of the European Convention of Human Rights (ECHR), in particular where the child lacks the mental capacity to make the decision for himself. D was born in 1999. He was diagnosed with attention deficit hyperactivity disorder, Aspergers syndrome and Tourettes syndrome, and has a mild learning disability. When he was 14 he was admitted to a hospital providing mental health services, for assessment and treatment. He lived in the hospital grounds and attended a school which was integral to the unit. The external door was locked and D was accompanied whenever he left the site. The hospital trust applied to the High Court for a declaration that it was lawful for the trust to deprive D of his liberty in this way. The judge, Mr Justice Keehan, held that D was so deprived but that it was a proper exercise of parental responsibility to consent to his constant supervision and control while he was under 16. By then, with his parents agreement, and with Birmingham City Council (the Council) accommodating him under s 20 Children Act 1989, D had been discharged from hospital to a residential placement, where he was similarly under constant supervision and not allowed to leave the premises except for a planned activity. On his 16th birthday proceedings were issued in the Court of Protection for a declaration that the consent of Ds parents meant that he was not deprived of his liberty at the placement. Keehan J held that his parents could no longer consent to what would otherwise be a deprivation of liberty once D had reached 16, and that the provisions of the Mental Capacity Act 2005 (MCA) now applied. He authorised the placement, and a subsequent transfer to another similar placement, as being in Ds best interests. When D reached the age of 18 his deprivation of liberty could be authorised under the deprivation of liberty safeguards in the MCA. The Councils appeal to the Court of Appeal was allowed, on the ground that parents could consent to what would otherwise be a deprivation of liberty of a 16 or 17 year old child who lacked the capacity to decide for himself, and the MCA had no bearing on this. The Supreme Court by a majority of 3 to 2 (Lord Carnwath and Lord Lloyd Jones dissenting) allows the appeal. Lady Hale gives the main judgment. Lady Black gives an additional judgment, dealing also with the issue of secure accommodation which arose during the hearing. Lady Arden agrees with Lady Hale on the effect of article 5 in a further judgment. Lord Lloyd Jones agrees with Lord Carnwaths dissenting judgment. The case turns on the inter relationship between the concept of parental responsibility, as defined by the Children Act 1989, the common law and other relevant statutory provisions, and the obligation of the State to protect the human rights of children under the ECHR [19]. Historically, parental rights under domestic law were never absolute and became increasingly subject to the overriding consideration of the childs own welfare. The power of physical control was a dwindling right as the child acquired sufficient understanding and intelligence to make his or her own decisions the age of discretion which could be before the age of majority (known as Gillick competence after the case of Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112) [21 23]. Gillick is not directly relevant to the question of whether parental authority endures beyond the age of discretion, if the child lacks capacity to make decisions [24, 69 72]. The MCA does not override other common law and statutory provisions relating to 16 and 17 year old children, but it does indicate an appreciation of the different needs of this age group [27, 71]. Lady Black would hold that as a matter of common law, parental responsibility for a child of 16 or 17 does not extend to authorising a confinement of the child in circumstances amounting to a deprivation of liberty [88 90]. Lady Hale prefers not to express a concluded view on this question but agrees that it reinforces the conclusion reached under the ECHR [28]. Article 5 ECHR protects children who lack the capacity to make decisions for themselves from being arbitrarily deprived of their liberty. Clearly the degree of supervision to which D was subject at the placements was not normal for a child of 16 or 17 [39]. Ds living arrangements had to be compared with those of children of the same age without disabilities, and the fact that they were made in his best interests did not mean he was not deprived of his liberty [41]. Parental consent could not substitute for the subjective requirement under article 5 for valid consent to the deprivation [42]. The procedural requirements of article 5 applied (and had in fact been complied with by the court authorisations) [44]. Human rights are about the relationship between private persons and the state, and Ds deprivation of liberty in the placements was attributable to the state [46]. There is no scope for the operation of parental responsibility to authorise what would otherwise be a violation of a fundamental human right of a child [49]. The question was raised in the hearing of whether the provisions of s 25 Children Act 1989, regarding the placing of children in accommodation provided for the purpose of restricting liberty, apply to Ds living arrangements. Lady Black addresses this issue in her judgment, concluding that a narrow construction of s 25 is needed to ensure local authorities can meet the welfare needs and best interests of children who for good reasons need to be kept in confined circumstances, but that s 25 does not play a direct role in Ds case [100, 113 115]. Lord Carnwath, dissenting, would have agreed with the Court of Appeal that nothing in the MCA detracts from the common law principle of parental responsibility in respect of 16 and 17 year olds [145]. He further considers that the case law of the European Court of Human Rights on article 5 recognises that the proper exercise of parental responsibility can include consent to confinement of a child such as D [155].

Mr Williams was employed by Swansea University from 12 June 2000 until he retired for ill health reasons on 30 June 2013 at the age of 38. He suffers from Tourettes syndrome and other conditions satisfying the definition of disability under section 6 of the Equality Act 2010 (the 2010 Act). He had been an active member of the universitys pension scheme (the pension scheme) throughout his employment. He was employed by the university for 13 years. For the first 10 he worked full time and then, for the final three, he worked between 17.5 and 26 hours per week when he was fit to do so. The reduction in working hours arose from his disabilities. When he retired he was working half his full time hours (17.5 hours a week). The pension scheme provided for accrual of benefits on a final salary basis until 1 August 2009, from which time it was amended so that accrual of benefits on and after that date was on the basis of Career Average Revalued Earnings. Under the ill health early retirement provisions, Mr Williams was entitled to a lump sum and annuity, calculated on the basis of his actual salary at relevant times, whether full or part time. The amount of this part of the pension was not in dispute. He was also entitled to an enhancement, calculated on the basis of his actual salary at the date of retirement. This element was the point of dispute. Section 15(1) of the 2010 Act provides that: A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably because of something arising in consequence of Bs disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Mr Williams claimed that the calculation of the enhancement constituted discrimination within this section, as it was based upon his final part time salary, rather than his full time salary. He said this was unfavourable treatment because of something arising in consequence of his disabilities, namely his inability to work full time. The Employment Tribunal agreed with Mr Williams, but this was overturned by the Employment Appeal Tribunal and the Court of Appeal. The central issue for the Supreme Court is the meaning of the expression treats unfavourably. The Supreme Court unanimously dismisses the appeal. Lord Carnwath gives the lead judgment. The Supreme Court held that in most cases, including this one, little is likely to be gained by seeking to draw distinctions between the word unfavourably in section 15 of the 2010 Act and analogous concepts such as disadvantage or detriment found in other provisions of the Act, or between an objective and a subjective/objective approach [27]. Passages in the Equality and Human Rights Commissions Code of Practice (2011) provide helpful guidance as to the relatively low threshold of disadvantage sufficient to trigger the requirement to justify under section 15 of the 2010 Act, but they do not overcome the central objection to Mr Williams case [27 28]. First, it is necessary to identify the relevant treatment to which section 15 of the 2010 Act is to be applied. In this case it was the award of a pension. There is nothing intrinsically unfavourable or disadvantageous about that. The appellants argument depends on an artificial separation between the method of calculation and the award to which it gave rise. The only basis on which Mr Williams was entitled to any award at this time was by reason of his disabilities. Had he been able to work full time, the consequence would have been, not an enhanced entitlement, but no immediate right to a pension at all. In those circumstances the award was not in any sense unfavourable, nor (applying the approach of the Code) could it reasonably have been so regarded [28].

The Appellants worked for the Respondent in factories making catalytic converters. In breach of its duty, under the health and safety regulations and at common law, the Respondent failed to ensure that the factories were properly cleaned and, as a result, the Appellants were exposed to platinum salts. This exposure led them to develop platinum salt sensitisation (immune system production of IgE antibodies). Platinum salt sensitisation is a condition producing or showing no symptoms. Further exposure to chlorinated platinum salts is likely to cause someone with platinum salt sensitisation to develop an allergic reaction with physical symptoms such as asthma, rhinitis or skin rashes. When the Appellants sensitisation was detected, the Respondent no longer permitted them to work in areas where they might be exposed to platinum salts and develop allergic symptoms. Each Appellant claims they have suffered financially because of their sensitisation to platinum salts because they had to take up a different role with the Respondent at a reduced rate of pay or because they had their employment terminated. The questions that arose in the courts below and on appeal to the Supreme Court of the United Kingdom were as follows: (1) Does platinum salt sensitisation qualify as an actionable personal injury? (2) Alternatively, can the Appellants recover damages for economic loss under an implied contractual term and/or in negligence? The Appellants lost at first instance and in the Court of Appeal. At first instance, Mr Justice Jay concluded that they had sustained no actionable personal injury and that their claim was for pure economic loss, for which they were not entitled to recover in tort. He also rejected their alternative claim in contract. The Court of Appeal upheld Mr Justice Jays ruling. The Supreme Court unanimously allows the appeal. Lady Black gives the sole judgment with which the other justices agree. Negligence and breach of statutory duty are not actionable in and of themselves. It is necessary for claimants to establish that there has been damage in the form of actionable personal injury. No decided case provides a definition of actionable personal injury, but there is some guidance as to its attributes. [11 12] Personal injury has been seen as: a physical change which makes the claimant appreciably worse off in respect of his health or capability; as including an injury sustained to a persons physical capacity of enjoying life; and as an impairment. It can also be hidden and symptomless. [27] What matters in this case is the behaviour of the IgE antibody, which is produced by an individual who has developed platinum salt sensitisation. If such an individual is exposed again to platinum salts, the IgE antibody is likely to react in a way which produces allergic symptoms. When an individual becomes sensitised, this change to their body means that they lose their capacity to work around platinum salts. [37] Respondents counsel acknowledged that if the Appellants had developed a sensitivity to something encountered in everyday life, such as sunlight, they would have sustained actionable damage because they would not be able to carry on with their ordinary life. The Appellants ordinary lives involved doing jobs of a type which, by virtue of their sensitisation, they can no longer do. This cannot be distinguished from the person who developed a sensitivity to sunlight. [39] The physiological changes to the Appellants bodies are undoubtedly harmful. Cartledge v Jopling establishes that the absence of symptoms does not prevent a condition amounting to actionable personal injury. What has happened to the claimants is that their bodily capacity for work has been impaired and they are therefore significantly worse off. [40] Once the sensitisation is identified as an actionable injury in its own right, the Respondents argument that the Appellants are claiming only for their lost earnings and therefore for pure economic loss also falls away. [44] This case is distinguishable from Rothwell v Chemical and Insulating Co Ltd. In that case, the pleural plaques the claimants developed were nothing more than a symptomless marker of exposure to asbestos dust and would not lead to or contribute to any condition which would produce symptoms, even with further exposure to asbestos dust. In this case, the Appellants sensitisation carries the risk of an allergic reaction in the event of further exposure to platinum salts and they must change their lives to avoid such exposure. [47] In these circumstances, it is unnecessary to consider the Appellants alternative argument that they should be able to recover for pure financial loss. [49]

The appeal concerns an estate agent, Mr Devani, who claims that commission became payable to him by Mr Wells, the vendor of a number flats, on the completion of the sale of the flats to a purchaser Mr Devani had introduced to Mr Wells. In 2007 the vendor, Mr Wells, completed the development of a block of flats. By the beginning of 2008 seven of the flats were still on the market. On 29 January 2008 a neighbour of Mr Wells, Mr Nicholson, sent an email to Mr Devani, who was trading as an estate agent, informing him of the unsold flats. Later that day Mr Devani acknowledged receipt of Mr Nicholsons email and made a telephone call to Mr Wells. Both parties at trial gave different accounts of this telephone conversation. It was Mr Devanis evidence that he told Mr Wells that he was an estate agent and that his commission terms would be 2% plus VAT. Mr Wells maintained that Mr Devani made no mention of any commission. Mr Devani subsequently made contact with Newlon Housing Trust who agreed to purchase the remaining flats for 2.1m. The transaction proceeded to completion and Mr Devani claimed his commission. Mr Wells refused to pay, and so Mr Devani issued proceedings. In the County Court at Central London the judge, His Honour Judge Moloney QC, held that there was a binding contract between the parties. However, as Mr Devani had only submitted his written terms to Mr Wells after he had made the introduction to the Newlon Housing Trust, the final award was subject to a one third deduction to reflect Mr Devanis failure to comply with the requirements of the Estate Agents Act 1979 (the Act). On appeal, the Court of Appeal by a majority, allowed Mr Wells appeal on the issue of whether there was ever a binding contract and unanimously dismissed his appeal in respect of section 18 of the Act. There are two issues for the Supreme Court: (i) the first, raised on appeal by Mr Devani, is whether the agreement was complete and enforceable despite there being no express identification of the event which would trigger the obligation to pay the commission. (ii) The second issue, raised on a cross appeal by Mr Wells, is whether, by reason of Mr Devanis failure to comply with the requirements imposed by section 18 of the Act, the trial judge ought to have dismissed the claim or discharged Mr Wells liability to pay the commission. The Supreme Court unanimously allows Mr Devanis appeal and dismisses Mr Wells cross appeal. Lord Kitchin gives the lead judgment (with whom Lord Wilson, Lord Sumption and Lord Carnwath agree). Lord Briggs gives a concurring judgment. (i) Was there a binding contract? The question is whether, objectively assessed, the parties by their words and their conduct intended to create a legally binding relationship [17]. It may be the case that the words and conduct relied upon are so vague that the court is unable to identify the terms on which the parties have reached agreement. However, the courts are reluctant to find an agreement is too vague or uncertain to be enforced where it is found that the parties had the intention of being contractually bound and have acted on their agreement [18]. In this case it would naturally be understood that payment would become due on completion and made from the proceeds of sale [19]. In short, Mr Devani and Mr Wells agreed that if Mr Devani found a purchaser for the flats he would be paid his commission. Mr Wells found the Newlon Housing Trust and it became the purchaser on completion of the transaction. At that point, Mr Devani became entitled to his commission and it was payable from the proceeds of sale [19]. (ii) Implied term It was therefore unnecessary for the judge to imply a term into the agreement between Mr Devani and Mr Wells. However, had it been necessary, there would be no hesitation in holding that it was an implied term of the agreement that payment would fall due on completion of the purchase of the property by a person whom Mr Devani had introduced [27]. The obligation to make payment of the commission on completion was required to give the agreement business efficacy and would not go beyond what was necessary for that purpose [29]. There will be cases where an agreement is so vague and uncertain that it cannot be enforced [33]. However, each case must be considered in light of its own particular circumstances [35]. (iii) The Estate Agents Act 1979 Section 18(1) of the Act provides that before any person enters into a contract, the agent must give the client certain information [37 39]. In this case, Mr Devani failed to comply with his section 18 obligation because, in particular, Mr Devani did not at the outset, or as soon as reasonably practicable thereafter, expressly inform Mr Wells of the event which would trigger his entitlement to commission; nor did he provide any of that information in writing [43]. However, in the circumstances of this case, Mr Devanis culpability was not so great as to justify dismissal of his application, and the trial judge made no material error in so deciding [54]. As to whether once the Court of Appeal found that the judge had made errors in the course of his assessment under section 18(6), it ought to have carried out the evaluation required by that provision afresh, the law does not require such an inflexible approach where, as here, the errors were of a minor kind and cannot have affected the conclusion to which he came. In these circumstances it is neither necessary nor appropriate for the appellate court to set that decision aside and embark on the evaluative exercise for itself [55 56]. Lord Briggs agrees with Lord Kitchin and with his reasons [58]. Lord Briggs adds that there are occasions, where the context in which the words are used tells you as much, or even more, about the essential terms of the bargain than the words themselves [59]. So it is with the contract in the present case [60]. Lord Briggs agrees that, like Lord Kitchin, he would have been prepared to find that a sufficiently certain and complete contract had been concluded between them, rather than just by the implication of terms [61]. Finally, Lord Briggs adds that none of these observations about the common law in any way under rate the importance of the statutory duty in section 18 of the Act. On the contrary, it is precisely because the common law will recognise an enforceable liability to pay as arising from the briefest and most informal exchange between the parties that statute protects consumers by imposing a more rigorous discipline upon their professional counterparties [63].

This appeal is about the application of anti discrimination law to charities, where they are established to provide benefits (in this case, social housing) for particular groups which are the subject of their charitable objectives. The relevant anti discrimination laws are contained in the Equality Act 2010 and Council Directive 2000/43/EC of 29 June 2000 (the Race Directive). The charitable objective of Agudas Israel Housing Association Ltd (the Housing Charity) is to make social housing available primarily for members of the Orthodox Jewish community in Hackney, in particular the Haredi community. It makes properties available via an online portal operated by Hackney London Borough Council (the Council), which is open to applicants for social housing whom the Council has identified as having a priority need. The Council cannot compel the Housing Charity to take tenants who do not fall within scope of its charitable objective and its selection criteria. This, combined with a significant surplus of need for social housing on the part of the Orthodox Jewish community, means that in practice the Council only nominates and the Housing Charity only accepts members of that community for the Housing Charitys properties. The social housing provided by the Housing Charity makes up less than 1% of the social housing available in Hackney. The principal appellant (the appellant) is a single mother with four small children, two of whom have autism. The Council identified the appellant as having a priority need for social housing in a larger property, and she has now been housed by the Council in such a property. However, she had to wait longer to be allocated suitable housing as she is not a member of the Orthodox Jewish community and so larger properties owned by the Housing Charity which became vacant were not available to her. She issued proceedings against the Council and the Housing Charity, alleging that she had thereby suffered unlawful direct discrimination on grounds of race or religion contrary to the Equality Act 2010. The Divisional Court dismissed the claim and the Court of Appeal dismissed her appeal. The appellant now appeals to this Court. She was given permission to add to her claim based on the Equality Act 2010 a new claim that the allocation policy of the Housing Charity contravened the Race Directive by unlawfully discriminating against her on the grounds of race or ethnic origin. The appeal turns on whether the Housing Charity acted unlawfully or not in restricting access to its stock of social housing. The Supreme Court unanimously dismisses the appeal. Lord Sales gives the main judgment (with which Lord Reed, Lord Kerr and Lord Kitchen agree). Lady Arden gives a concurring judgment. Equality Act 2010 The Equality Act 2010 makes it unlawful to discriminate directly against any person on the basis of certain characteristics, known as protected characteristics. These include race and religion or belief [17] [18]. However, the Act sets out exemptions where certain actions will not be considered as unlawful direct discrimination. Section 158 provides one such exemption where positive action addresses in a proportionate manner needs or disadvantages connected to a protected characteristic [19]. Section 193 sets out two further exemptions. Section 193(2)(a) permits charities to restrict benefits to those with a protected characteristic if that restriction is a proportionate means of achieving a legitimate aim and section 193(2)(b) permits charities to restrict benefits to those who share a protected characteristic if the restriction seeks to prevent or compensate for a disadvantage linked to the characteristic [21]. Lord Sales upholds the lower courts findings that the Housing Charitys allocation policy is proportionate and lawful under sections 158 and 193(2)(a) of the Equality Act 2010. A proportionality assessment first requires the identification of a legitimate aim and, secondly, consideration of whether the measures taken to promote that aim are proportionate, having regard to other interests at stake [65]. The dispute in this case centres on what constitutes a legitimate aim [60] [72]. As found by the Divisional Court and the Court of Appeal, the legitimate aims here include the minimisation of disadvantages which are connected to the Haredi communitys religious identity and counteracting discrimination which they suffer, including in the private housing market, and the fulfilment of relevant needs which are particular to that community [66]. The Housing Charity was entitled to adopt a clear and strict rule about who could and could not apply for its social housing, which meant that it was made available just for members of the Orthodox Jewish community, to ensure that its charitable activities were focused on that community, so that its activities did in fact fulfil its charitable objective to alleviate the problems of that community [76] [87]. Lord Sales holds that the Divisional Court correctly considered the Housing Charitys allocation policy in the light of the applicable legal framework and, accordingly, was entitled to find it to be proportionate and lawful under these statutory exemptions. Lord Sales makes his own assessment of proportionality [76] [87], which is in agreement with that of the Divisional Court [73]. Lord Sales holds that, in any event, the Court of Appeal was right to say that the Divisional Courts finding of proportionality could only be set aside if it had misdirected itself or reached a decision which was wrong. Applying this approach, he holds that the Divisional Court had been entitled to make this finding, with the result that its decision should be upheld on appeal [74] [75]. In her concurring judgment, Lady Arden emphasises that an appellate court should generally not make its own assessment of proportionality in such circumstances [120], and with this caveat she agrees with the judgment of Lord Sales [121]. As regards the exemption in section 193(2)(b), the Court dismisses the argument for the appellants that the provision is subject to an implied proportionality requirement. There is no sound basis on which such a requirement could be read into the provision [97]. First, even on the assumption that the case is within the ambit of Article 8 of the European Convention on Human Rights (the ECHR), on the right to respect for private and family life, so that Article 14 of the ECHR (non discrimination) is applicable, any proportionality requirement inherent in that provision is satisfied by the structure of section 193 itself; Parliament was entitled to create a clear rule applicable to charities in the interests of conserving their resources for use in fulfilling their charitable objectives, having regard, among other things, to the regulation of charities under the Charities Act 2011 to ensure they operate in the public interest and the wide margin of appreciation accorded to Parliament, as the body with democratic authority, in setting social and economic policy, including encouragement for giving to charity [97] [110]. Secondly, on the same assumption that the case falls within the ambit of Article 8 of the ECHR, even if the structure of section 193 itself did not satisfy any relevant proportionality standard, the drafting of the provision and the policy underlying it are so clear that it would not be possible to read into it an additional proportionality requirement [111] [115]. In the circumstances, therefore, it is not necessary to resolve the question whether the case falls within the ambit of Article 8 of the ECHR and the Court prefers to leave that issue open [96, 116]. Section 193(2)(b) should be applied according to its express terms. It is common ground that, on this basis, the requirements of section 193(2)(b) are satisfied in this case [50]. Even if a proportionality requirement could be read into the provision, it follows from the decision regarding proportionality in relation to section 158 and section 193(2)(a) that it would have been satisfied [55, 88]. The Race Directive The Race Directive provides that discrimination on grounds of race or ethnic origin must be unlawful, particularly in relation to housing [89]. The Court finds that the Housing Charity is not in contravention of this directive for the simple reason that its allocation policy differentiates on the basis of religious observance and not race or ethnic origin [89] [90].